Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
108
Addendum
A
is
very
confusing
and
unnecessary
lengthy.
We
request
that
EPA
streamline
it
by
using
flowcharts,
bullets
and/
or
tables
to
clarify
the
requirements.
EPA
has
streamlined
Appendix
C
(
formerly
Addendum
A)
to
clarify
the
requirements.
1024
and
1028
2
109
In
section
1.3.
C.
6
and
Addendum
A,
EPA
uses
terms
like
"
must",
"
should",
and
"
strongly
recommends".
We
think
the
term
"
recommends"
is
more
appropriate
in
the
text
since
the
authority
for
T&
E
species
is
with
the
USFWS
and
not
with
EPA.
It
is
unclear
why
the
commenter
believes
it
is
"
more
appropriate"
for
EPA
to
"
recommend"
rather
that
require
any
particular
action.
Given
the
mandate
in
section
7(
a)(
2)
of
the
Endangered
Species
Act
(
ESA)
that
federal
agencies
ensure
that
their
actions
not
jeopardize
the
continued
existence
of
listed
species,
EPA
is
confident
that
it
has
required
appropriate
measures
of
those
who
seek
coverage
under
the
CGP.
1024
and
1028
2
197
We
do
not
understand
why
operators
who
choose
to
conduct
informal
consultation
as
a
non­
Federal
representative
must
notify
EPA
and
the
appropriate
Service
office
in
writing
of
that
decision.
On
non
federal
projects,
operators
consult
with
USFWS
as
needed
without
notification
to
anyone.
Because
discharges
relevant
to
this
action
are
authorized
under
the
CGP,
it
is
appropriate
to
keep
the
Agency
informed
of
any
consultation
activity
with
the
Services
pursuant
to
such
coverage.
Contrary
to
the
commenter's
suggestion,

EPA
has
consulted
with
FWS
and
NMFS
on
the
issuance
of
this
permit.
It
is
true
that,
in
order
to
be
eligible
for
permit
coverage,
owners/
operators
will
have
to
engage
in
certain
inquiries
regarding
the
potential
impacts
of
their
discharges
on
listed
species
and/
or
critical
habitat.
The
permit
includes,
however,
a
mechanism
for
FWS,
NMFS,
and/
or
EPA,
themselves
to
screen
NOIs
for
potential
impacts
to
species
and/
or
habitat
and
an
opportunity
to
delay
authorization
for
further
inquiry
where
warranted.
1024
and
1028
2
198
Addendum
A
of
the
CGP
unlawfully
delegates
to
permit
applicants
the
responsibility
for
determining
whether
CGP
authorized
activities
are
likely
to
adversely
affect
listed
species
or
critical
habitat.
Thus,

EPA
has
passed
on
to
the
applicant
the
crucial
determination
of
whether
EPA
is
obligated
to
initiate
formal
section
7
consultation
with
the
[
Fish
and
Wildlife]
Service.
See
63
Fed.
Reg.
7858,

7919(
February
17,
1998),
see
also,
Draft
CGP
1.8(
C)(
6)(
g)(
A­
E).
EPA
includes
the
ESA
screening
procedures
in
Appendix
C
(
formerly
Addendum
A)
consistent
with
40
CFR
Section
122.49(
c).
If
an
operator
chooses
to
not
execute
the
screening
procedures,
he/
she
will
have
to
undergo
his/
her
own
Section
7
consultation
with
the
Services
as
EPA's
designated
Federal
representative.
Of
the
two,
EPA
believes
it
is
to
the
advantage
of
the
operator
to
perform
his/
her
own
screening.
1022
2
199
even
if
a
permit
applicant
determines
that
listed
species
are
likely
to
be
adversely
affected
by
the
proposed
development
project,
EPA
is
still
not
obligated
to
consult
with
the
[
Fish
and
Wildlife]
Service
under
the
CGP
if
the
permit
applicant
determines
that
such
adverse
affects
can
be
avoided
or
eliminated.
See
response
to
comment
198.
1022
1
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
200
In
Arizona,
numerous
residential,
commercial
and
other
development
and
construction
projects
have
been
and
continue
to
be
authorized
by
EPA
under
its
CGP
within
the
range
of
the
pygmy­
owl.
Many
of
these
projects
have
caused
or
will
cause
the
destruction
or
fragmentation
of
pygmy­
owl
habitat,
and
other
significant
adverse
impacts
to
the
species'
survival
and
recovery.
Nonetheless,
EPA
has
never
consulted
with
the
Service
on
the
total
direct,
indirect,
and
cumulative
impacts
of
its
CGP
on
the
pygmy­
owl
throughout
its
range
in
Arizona.
Instead,
EPA
has
relied
exclusively
on
procedures
outlined
in
Addendum
A
of
its
CGP
to
ensure
compliance
with
the
ESA.
Arizona
is
now
an
EPA­
authorized
NPDES
Permitting
Authority
throughout
most
of
the
State.
The
State
has
issued
its
own
storm
water
permits.
Therefore,

ESA
requirements
relating
to
Federal
actions,
i.
e.,
issuance
of
a
Federal
permit,

no
longer
applies
in
Arizona,
with
the
exception
of
certain
Indian
Country
lands.

Hence,
consultation
on
this
action
did
not
include
much
activity
within
Arizona's
borders.
See
also
response
to
comment
198.
1022
2
201
While
a
project
proponent
certainly
has
a
legal
obligation
to
avoid
the
'
take'
of
an
endangered
species
pursuant
to
Section
9
of
ESA­­
and
may
request
'
early'

consultations
between
EPA
and
the
wildlife
agencies,

see
50
C.
F.
R.
§
402.11,
EPA
cannot
wholly
delegate
its
independent
obligation
to
make
a
'
may
affect'

determination
to
a
third­
party.
See
Response
to
comment
198.
1065
2
202
Based
on
the
extensive
information
included
within
the
draft
permit
regarding
potential
effects
to
listed
species
from
actions
that
may
be
covered
by
the
proposed
permit,
it
appears
that
EPA
will
need
to
consult
with
the
Services
on
this
action.
There
are
a
number
of
aspects
of
this
proposed
permit
that
indicate
formal
consultation
will
be
necessary
unless
EPA
adopts
the
earlier
recommendation
to
limit
the
scope
of
the
permit.

 
Regulations
for
implementing
the
consultation
process
are
promulgated
at
50
CFR
part
402.
EPA
has,
in
fact,
consulted
with
the
Services
on
this
action.
It
is
not
clear
form
the
comment
what
"
aspects"
of
this
action
"
indicate
formal
consultation
will
be
necessary."
1075
2
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
203
Endangered
species:
While
private
parties
have
an
obligation
to
ensure
that
their
activities
do
not
violate
the
Endangered
Species
Act
(
ESA),
the
federal
permitting
authority
has
an
independent
obligation
to
ensure
compliance
with
the
ESA.
Section
7
of
ESA
creates
an
independent
requirement
for
each
federal
agency,
through
consultation
with
NMFS
or
FWS
 

16
U.
S.
C.
§
1536(
a)(
2).
 
See
generally
50
U.
S.
C.
§
402.
 
Id.
at
§
402.14.
Thus,
while
a
project
proponent
certainly
has
a
legal
obligation
to
avoid
the
'
take'
of
an
endangered
species
pursuant
to
Section
9
of
ESA­­
and
may
request
'
early'
consultations
between
EPA
and
the
wildlife
agencies,
see
50
C.
F.
R.
§
402.11,
EPA
cannot
wholly
delegate
its
independent
obligation
to
make
a
'
may
affect'
determination
to
a
third­
party.
See
response
to
comment
198.
2002
2
204
Under
the
CGP,
EPA
has
no
obligation
to
independently
verify
permit
applicants'
determinations
regarding
impacts
to
listed
species.
Clearly
this
is
a
circumstance
where
EPA
is
unlawfully
attempting
to
pass
on
its
mandatory
consultation
duties
to
the
permit
applicant,
which
is
simply
prohibited
under
the
ESA.
EPA
is
not,
as
the
comments
suggests,
passing
on
any
duty
to
consult
with
the
Services
on
the
CGP.
In
fact,
EPA
has
consulted
with
FWS
and
NMFS
on
the
CGP.
As
a
result
of
this
consultation,
EPA
has
modified
the
permit
somewhat
with
respect
to
the
provisions
addressing
endangered
species.
EPA
has
modified
the
NOI
requirements
such
that
NOI
submitters
are
not
authorized
to
discharge
until
7
days
after
the
NOI
is
posted
on
EPA's
NOI
Processing
Center
website.
During
these
7
days,
EPA,
FWS,
NMFS
and
the
general
public
will
have
access
to
the
information
submitted
in
an
NOI.
EPA
added
this
7
day
period
to
give
the
Services
an
opportunity
to
inform
EPA
of
ESA­
related
issues
regarding
particular
construction
projects
and
to
advise
EPA
if
a
longer
delay
in
authorization
would
be
warranted
for
further
inquiry.
1022
2
205
I
remained
concerned
that
the
proposed
permit
relies
exclusively
on
self­
certification
by
applicants
that
they
have
taken
appropriate
steps
to
address
any
impacts
to
listed
species
or
critical
habitat
that
are
likely
to
be
caused
by
the
proposed
project
for
which
the
Construction
General
Permit
is
needed.
This
approach
passes
EPA's
responsibilities
to
insure
that
individual
uses
of
the
general
permit
comport
with
section
7(
a)(
2)

of
the
ESA
to
the
permit
applicants.
See
comment
response
summary
204.
1075
3
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
206
The
procedures
outlined
in
Addendum
A
are
patently
inconsistent
with
the
ESA
and
otherwise
woefully
inadequate
to
ensure
that
EPA
is
not
jeopardizing
the
survival
and
recovery
of
listed
species
or
critical
habitat,
including
the
cactus
ferruginous
pygmy­
owl
("
pygmy­
owl")
by
implementing
its
CGP
in
Arizona.
See
comment
response
summary
204.
Additionally,
note
that
EPA
is
no
longer
the
permitting
authority
in
the
State
of
Arizona
(
except
for
Indian
country).
1022
2
207
EPA's
failure
to
comply
with
the
ESA
is
also
partly
the
result
of
EPA's
unlawful
pattern,
practice
and
policy
of
failing
to
consult
with
the
Service
on
the
indirect
effects
of
its
CGP,
including
effects
to
upland
habitat
that
is
important
to
the
pygmy­
owl's
survival
and
recovery.

Unless
and
until
EPA
revises
the
procedures
described
in
Addendum
A
and
section
1.8(
C)(
6)(
g)
of
the
Draft
CGP,
EPA
will
be
in
violation
of
the
ESA.
See
comment
response
summary
204.
1022
2
208
Addendum
A,
section
A,
footnote
1
­
This
footnote
incorrectly
asserts
that
section
9
of
the
ESA
prohibits
take
of
listed
species.
Section
9(
a)(
1)(
B)
of
the
ESA
prohibits
take
of
endangered
wildlife.
The
Fish
and
Wildlife
Service
has
extended
generally
that
prohibition
to
threatened
wildlife
by
regulation
at
50
CFR
17.31.

Section
9(
a)(
2)
details
the
prohibited
acts
relating
to
endangered
plants,
which
primarily
apply
on
federal
lands
or
to
actions
prohibited
by
State
law.
Comment
acknowledged.
Fact
sheet
modified
accordingly.
1075
2
209
Addendum
A,
section
B,
Step
Three
­
This
section
provides
for
the
applicant
to
make
a
determination
that
their
activities
will
not
adversely
affect
any
listed
species
or
critical
habitat
and
then
apply
for
coverage
under
the
Construction
General
Permit.
This
provision
is
inconsistent
with
the
section
7
consultations
regulations
because
it
does
not
require
the
applicant,

acting
as
a
designated
non­
federal
representative
for
EPA,
to
obtain
the
written
concurrence
of
the
Services
in
making
the
determination
that
the
proposed
action
is
not
likely
to
adversely
affect
listed
species
or
critical
habitat
(
see
50
CFR
402.14(
a)).
See
comment
response
summary
204.
Furthermore,
the
provisions
in
the
CGP
regarding
endangered
species
provide
a
number
of
options
for
dischargers
to
conclude
that
their
activity
will
not
be
likely
to
jeopardize
the
continued
existence
of
listed
species.
Although
not
every
option
requires
the
written
concurrence
of
the
Services,
the
Services
will
have,
at
the
very
least,
a
7­
day
opportunity
to
raise
potential
problem
sites
to
EPA's
attention
for
a
more
detailed
inquiry
before
discharge
would
be
authorized.
1075
4
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
210
In
order
to
be
consistent
with
technical
requirements
of
the
Endangered
Species
Act,
the
draft
Fact
Sheet
and
Addendum
A
should
be
revised
as
follows:
Footnote
1
on
page
38
of
the
draft
Fact
Sheet
should
be
revised
to
correctly
describe
the
'
take'
prohibitions
of
the
Endangered
Species
Act
by
adding
the
following
underscored
{
bracketed}
language:
Section
9
of
the
ESA
prohibits
any
person
from
'
taking
listed
{
endangered}
species
{
and
listed
threatened
species
covered
by
a
section
4(
d)
'
take'
prohibition
rule}
.
.
.
.
Comment
acknowledged.
Fact
sheet
modified
consistent
with
comment
summary
208.
1072
2
211
In
order
to
be
consistent
with
technical
requirements
of
the
Endangered
Species
Act,
the
draft
Fact
Sheet
and
Addendum
A
should
be
revised
as
follows:
 
the
second
sentence
at
the
top
of
page
40
of
the
draft
Fact
Sheet
should
be
modified
to
correctly
describe
the
'
take'
prohibitions
of
the
Endangered
Species
Act
by
adding
the
following
underscored
{
bracketed}

language:
Once
listed
as
endangered
or
{
a
section
4(
d0
rule
has
been
promulgated
with
respect
to
a
listed}
threatened
.
.
.
.
Comment
acknowledged.
EPA
believes
the
language
in
the
draft
permit
is
accurate
and
has
not
added
the
clarification
language
recommended
by
the
commenter.
1072
2
212
In
order
to
be
consistent
with
technical
requirements
of
the
Endangered
Species
Act,
the
draft
Fact
Sheet
and
Addendum
A
should
be
revised
as
follows:
The
title
to
'
Step
Three'
on
page
41
of
the
draft
Fact
Sheet
should
be
revised
to
correctly
describe
when
consultation
is
required
under
the
Endangered
Species
Act
by
replacing
the
words
'
Are
Likely
to'
with
'
May'.
Acknowledged.
Change
made.
1072
2
213
In
order
to
be
consistent
with
technical
requirements
of
the
Endangered
Species
Act,
the
draft
Fact
Sheet
and
Addendum
A
should
be
revised
as
follows:
page
35
of
the
draft
Fact
Sheet,
in
the
paragraph
beginning
'
Addendum
A
.
.
.'
should
be
modified
by
replacing
in
line
four
the
words
'
are
likely
to'
with
'
may'.
On
that
same
line,
the
words
in
the
sentence
beginning
'
If
adverse
effects
are
likely'
should
be
replaced
with
'
If
the
discharge
may
adversely
affect
listed
species
or
critical
habitat
of
such
species'.
Acknowledged.
Change
made.
1072
5
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
214
The
CGP
unlawfully
predetermines
that
a
project
will
never
be
determined
to
adversely
affect
a
listed
species
unless
an
individual
member
of
a
listed
species
is
found
on
the
project
site,
or
the
project
will
directly
impact
critical
habitat.
EPA
disagrees
with
the
commenter's
suggestion.
The
CGP,
as
worded,

requires
that
the
permittee
evaluate
the
project
area,
which
is
inclusive
of
the
action
area,
and
as
such,
includes
areas
beyond
the
boundaries
of
the
project
site
or
may
directly
impact
those
habitats.
1022
2
215
EPA's
failure
to
comply
with
the
ESA
regarding
implementation
of
its
CGP
within
the
range
of
the
pygmy­
owl
in
Arizona
is
partly
the
result
of
EPA's
unlawful
pattern,
practice
and
policy
of
restricting
its
"
may
affect"
determinations
and
section
7
consultations
with
the
Service
to
only
those
EPAauthorized
projects
that
will
directly
impact
formallydesignated
critical
habitat,
or
habitat
actually
occupied
by
a
listed
species.
This
comment
is
unclear,
but
appears
to
relate
to
actions
largely
outside
the
scope
of
this
permit.
See,
however,
comment
response
summary
214.
1022
2
216
Furthermore,
the
proposed
permit
does
not
include
provisions
requiring
applicants
to
notify
the
Services
when
an
individual
permitted
action
may
affect
listed
species
or
critical
habitat.
I
suggest
that
applicants
be
required
to
provide
a
copy
of
their
Notice
of
Intent
to
the
nearest
Fish
and
Wildlife
Service
Field
Office
who
will
be
allowed
30
days
to
raise
any
concerns
with
the
applicant's
determinations
regarding
listed
species.
See
comment
response
summary
204.
1075
2
217
We
are
concerned
that
the
USFWS
does
not
have
the
staff
to
evaluate
the
large
number
of
informal
and/
or
formal
requests
that
will
come
from
the
oil
and
gas
industry,
as
well
as
other
construction
related
activities.
See
responses
to
comments
1
and
222.
1024
and
1028
2
218
Section
1.3.
C.
6:
Industry
assumes
that
a
review
of
available
web
site
information
would
be
meeting
the
requirements
for
Criterion
A;
however,
to
clarify
this
issue,
we
request
EPA
to
include
examples
of
procedures
that
are
acceptable
e.
g.
visual
inspections,

web
site
reviews,
knowledge
of
previous
surveys,
and
other
similar
methods.
EPA
has
included
adequate
methodologies
and
examples
in
the
Screening
Procedures
in
Appendix
C
(
formerly
Addendum
A)
for
operators
to
determine
their
eligibility
for
permit
coverage.
1028
6
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
220
Section
1.3.
C.
6:
In
Oklahoma,
we
request
that
the
USFWS
or
EPA
place
all
previously
approved
T&
E
surveys
and
evaluations
on
their
web
site
by
Section
(
breaking
the
section
into
1/
4,
1/
4,
1/
4),
Township,
and
Range
to
decrease
the
number
of
repetitive
surveys
and
evaluations
that
operators
will
have
to
conduct.
While
an
NOI
database
will
be
available
on­
line,
permit
eligibility
requirements
developed
as
a
result
of
consultations
with
the
Services,
will
not
allow
applicants
to
make
use
of
other
applicants'
endangered
species
screening
results
except
in
the
case
of
co­
located
projects
where
one
operator's
certification
of
eligibility
covers
another
as
per
part
1.3.
C.
6,
Criterion
F.
1028
and
1024
2
221
EPA
and
the
USFWS
will
have
to
manage
an
enormous
number
of
notices
prior
to
the
filing
of
any
notice
of
intent
(
NOI).
How
will
EPA
and
the
USFWS
track
these
notices,
and
why
would
they
track
this
information?
We
think
the
additional
paperwork
impedes
the
process
and
does
nothing
to
protect
the
T&
E
species.
The
Services
and
EPA
will,
for
the
most
part,
deal
only
with
NOIs.
The
only
information
required
by
the
permit
to
be
submitted
to
EPA
is
information
to
support
the
NOI.
EPA
intends
to
maintain
an
NOI
database
online.
1028
and
1024
2
222
We
are
concerned
that
the
state
agencies
in
Oklahoma
do
not
have
the
staff
to
evaluate
the
large
number
of
requests
that
will
come
from
the
oil
and
gas
industry,
as
well
as
other
construction
related
activities.

In
Oklahoma,
operators
will
incur
delays
of
at
least
30
days
waiting
on
responses
from
the
local
historical
and
archeological
offices.
These
delays
will
most
likely
be
much
longer
since
the
local
office
requires
archeological
evaluations
on
80%
of
the
requests
that
they
receive
even
though
only
a
small
percentage
of
the
time
archeological
sites
are
discovered.
The
issue
of
whether
another
agency
can
perform
its
obligations
in
a
timely
manner
does
not
obviate
the
need
for
EPA
to
comply
with
its
various
CWA
statutory
and
regulatory
obligations
and
to
incorporate
the
requirements
in
question.
EPA
is
continuing
its
consultation
regarding
NHPA
requirements
and
has
reserved
requirements
at
this
time.
1024
and
1028
2
223
GPA
understands
that
the
CGP
has
to
incorporate
and
address
Threatened
and
Endangered
Species
and
Historical
Sites
due
to
the
Clean
Water
Act.
However,

the
language
and
evaluation
process
outlined
in
the
CGP
are
redundant.
A
statement
regarding
the
need
to
conduct
an
assessment
and
reference
to
the
designated
agencies
would
be
more
appropriate.
EPA
disagrees
with
the
redundancy
assertion.
The
Screening
Process
given
in
the
permit
is
an
aid
to
enable
operators
to
determine
their
permit
eligibility
with
respect
to
the
potential
impacts
their
discharges
may
have
on
listed
species
and/
or
critical
habitat.
1006
7
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
224
If
the
ESA
issue
is
left
in,
it
should
remain
guidance,

as
it
has
been
in
previous
CGPs
and
as
the
Historic
Preservation
issue
is
in
the
proposed
CGP.
Placing
requirements
(
i.
e.
statements
with
`
shall'
or
`
must')
in
the
CGP
may
make
the
CGP
provisions
obsolete
as
the
managing
agency
changes
procedures
and
interpretations.
Leaving
the
ESA
issues
as
guidance
may
prevent
EPA
from
having
to
reopen
the
CGP
due
to
a
change
in
the
ESA
process
controlled
by
another
agency's
provisions.
The
ESA
conditions
in
the
1998
CGP
were
not
guidance.
Determining
eligibility
for
permit
coverage
requires
specific
conditions
be
met.
This
includes
ESArelated
eligibility.
See,
also,
response
to
comment
109.
1002
2
225
[
I]
t
seems
the
five­
step
process
is
intended
to
be
satisfied
when
any
one
step
indicates
no
impact.
The
Addendum
A
can
be
read
to
require
all
five
steps
be
completed
on
every
review.
In
addition,
some
of
the
list
of
options
listed
in
the
steps
can
be
taken
as
checklist
of
items
to
be
completed
in
completion
of
that
step.
EPA
disagrees
that
the
Addendum
requires
all
five
steps
to
be
completed.
At
the
end
of
each
step,
language
is
included
to
indicate
whether
any
other
steps
are
required.
1002
2
226
The
ESA
does
not
provide
EPA
authority,
pursuant
to
issuing
a
CWA
permit,
over
non­
discharge
activities,

which
EPA
would
otherwise
have
no
authority
to
control 
See
American
Forest
and
Paper
Association
v.
U.
S.
Environmental
Protection
Agency,
137
F.
3d
291
(
5th
Cir.
1998)
(
finding
EPA
could
not
give
the
FSA
a
veto
over
state­
issued
NPDES
permits
based
on
species
concerns,
when
EPA
was
otherwise
required
to
approve
these
permits
under
relevant
CWA
provisions) 
Therefore
NMA
urges
EPA
to
remove
the
term
"
discharge
related
activities"
focusing
its
regulatory
efforts
within
the
appropriate
realm
of
its
CWA
authorities.
The
final
rule
should
clearly
state
that
it
addresses
only
those
activities
included
in
the
definition
of
"
discharge
of
stormwater
associated
with
construction
activity".
It
is
correct
that
EPA
is
authorizing
discharges
via
this
permit.
However,
in
consulting
with
the
Services
on
the
affects
of
issuing
this
permit,
EPA
considers
direct
and
indirect
affects
of
the
action.
See
50
CFR
402.02.
EPA,
therefore,

feels
it
is
rightfully
within
the
scope
of
the
permit
to
require
operators
consider
both
discharges
and
discharge­
related
activities
when
determining
eligibility.
1066
8
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
228
The
T&
E
species
requirements
are
very
detailed,
will
significantly
delay
operations,
and
will
be
very
costly
for
operators,
if
formal
consultation
with
the
U.
S.
Fish
and
Wildlife
Service
(
USFWS)
is
required.
Most
operators
will
have
to
hire
a
consultant
to
conduct
surveys
and/
or
consult
with
the
USFWS.
EPA
believes
that
the
ESA
provisions
are
appropriate.
EPA
anticipates
that
formal
consultation
will
be
necessary
in
only
a
small
percentage
of
cases
and
consultants
will
not
be
necessary
to
conduct
most
inquiries.
1028
and
1024
2
229
AGA
is
however
concerned
that
Section
1.8,
C.
6.
and
Section
3.7
of
the
General
Permit
establishes
procedures
and
protocols
that
are
authorized
by
the
Endangered
Species
Act
as
administered
by
the
USFWS.
In
the
absence
of
a
Memorandum
of
Understanding
(
MOU)
between
EPA
and
USFWS,

AGA
is
concerned
that
the
procedures
exceed
the
authorization
provided
by
the
Clean
Water
Act.
AGA
is
also
concerned
that
if
the
USFWS
should
change
their
procedures
the
new
procedures
would
be
inconsistent
with
the
provisions
in
the
promulgated
General
Permit.

AGA
recognizes
the
value
of
the
intended
guidance,

but
recommends
that
the
guidance
be
provide
by
USFWS
and
that
EPA
consider
using
Condition
11
of
the
U.
S.
Army
Corps
of
Engineers
(
USACE)
Nation
Wide
Permit
program
as
alternative
language
to
address
ESA
requirements.
As
EPA
is
a
different
Agency
than
the
Army
Department,
and
it's
permits
are
administered
and
implemented
differently,
EPA
must
undergo
its
own
Section
7
consultation
for
its
Federal
actions.
Permit
requirements
relating
to
ESA
are
uniquely
the
result
of
this
consultation
with
the
Services.
The
commenter
appears
to
assume
that
all
construction­
related
dischargers
are
required
to
meet
all
of
the
conditions
of
this
permit
­
this
is
not
the
case.
Such
dischargers
always
have
the
option
of
applying
for
an
individual
permit,
in
which
case
EPA
would
consult
with
the
Service(
s),
where
appropriate,
itself.
1045
9
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
230
Notification
of
potential
waiting
periods
for
permit
authorization
in
certain
areas
as
necessitated
for
the
protection
of
endangered
or
threatened
species
added.

EPA
should
specify
what
areas
would
require
additional
protective
measures
upon
issuance
of
the
2003
CGP.
At
the
least,
EPA
should
clarify
if
these
measures
will
apply
to
ALL
areas
that
contain
endangered
or
threatened
species,
only
to
critical
habitat,
or
some
other
specific
criteria.
This
clarification
needs
to
be
made
when
the
permit
is
issued
so
that
operators
can
plan
accordingly,
and
not
inadvertently
discharge
when
coverage
may
not
be
granted 
Operators
should
know
in
advance
what
additional
protective
measures
will
need
to
be
taken,

and
when
a
30­
day
waiting
period
prior
to
discharge
will
be
imposed.
EPA
has
revised
its
NOI
submission
procedures
to
provide
an
opportunity
for
EPA,
FWS,
and
NMFS
to
review
in
advance
of
authorization.
EPA
is
not
limiting
waiting
periods
to
certain
areas;
rather,
all
NOIs
will
now
be
required
to
be
submitted
at
least
7
days
in
advance
of
permit
coverage.
1041
2
231
It
is
our
understanding
that
this
Federal
permit
only
requires
that
Federally­
listed
endangered
and
threatened
species
and
critical
habitat
be
addressed;

the
permit
does
not
clearly
state
this.
A
clarification
has
been
made.
1035
2
232
Requirements
for
Endangered
Species
Eligibility
Greatly
Expanded
(
Addendum
A)
 
The
first
change
in
the
proposed
CGP
(
page
39)
is
that
the
action
project
area
that
is
considered
for
eligibility
under
the
Endangered
Species
Act
(
ESA)
must
now
include
areas
both
upstream
and
downstream
from
the
site.

This
requirement
is
not
in
the
existing
CGP
and
no
discussion
of
the
ESA
is
presented
in
the
proposed
C&
D
ELG.
This
requirement
will
increase
the
cost
of
generating
an
SWP3
beyond
what
industry
has
estimated
it
to
be
in
comments
on
the
proposed
C&
D
ELG.
The
C&
D
ELG
is
a
separate
Rulemaking
and
has
no
bearing
on
the
CGP
at
this
point.
"
Project
area"
and/
or
"
action
area"
requirements
are
included
as
a
result
of
EPA's
Section
7
consultation
with
the
Services.
1058
10
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
233
Requirements
for
Endangered
Species
Eligibility
Greatly
Expanded
(
Addendum
A)
...
The
second
change
in
the
proposed
CGP
concerning
the
ESA
is
on
page
40,
at
the
close
of
the
opening
paragraph
to
Step
2
in
determining
ESA
eligibility.
 
The
passage
was
probably
unintentionally
changed,
and
hopefully
it
was
not
the
intent
of
EPA
to
require
all
five
of
the
above
bullets.
If
that
is
the
case,
this
wording
needs
to
be
changed
back
to
'
These
methods
may
include '.
Acknowledged
and
clarified.
1058
2
234
Requirements
for
Endangered
Species
Eligibility
Greatly
Expanded
(
Addendum
A)
 
If
all
five
bullets
on
pages
40­
41
are
intended
to
be
required
for
all
sites,
then
this
is
definitely
a
major
change,
and
is
opposed
by
AAR
as
being
extremely
expensive,

redundant,
time
consuming,
impractical,
and
unnecessary.
See
response
to
comment
225.
The
screening
steps
are
very
similar
to
those
included
in
the
1998
permit.
1058
2
235
Addendum
A
should
be
updated.
EPA
has
included
a
list
of
endangered
species
by
State
and
county
in
Addendum
A
to
assist
applicants
in
determining
if
their
project
area
contains
endangered
species.
However,

the
list
is
current
as
of
October
30,
2001.
EPA
will
not
be
publishing
a
separate
list
of
species
or
habitat.
Instead,
the
permit
provides
information
on
where
to
acquire
or
access
the
most
accurate
and
up­
to­
date
information
on
listed
threatened
and
endangered
species
and
critical
habitat.
1057
11
Endangered
and
Threatened
Species
Comment
Response
New
Topic
Summ.
ID
Summary
Response
Document
ID
2
236.1
EPA
has
included
in
the
CGP
specific
certification
requirements
relating
to
the
Endangered
Species
Act
("
ESA")
and
the
National
Historic
Preservation
Act
("
NHPA").
The
certification
requirements
raise
several
issues
that
concern
the
Coalition
and
that
EPA
should
address
before
finalizing
the
CGP.
...
The
Coalition's
principal
concern
relates
to
EPA's
use
of
the
term
"
discharge­
related
activities."
By
covering
not
only
the
permitted
discharge,
but
also
any
"
discharge­
related
activities,"
EPA
has
exceeded
its
authority
under
the
CWA,
in
several
respects.
First,
the
Agency's
authority
is
limited
to
regulation
of
actual
discharges,
and
does
not
extend
to
activities
that
may
be
"
related"
to
the
discharge.
Second,
the
Endangered
Species
Act
does
not
expand
the
Agency's
CWA
authorities
to
encompass
protection
of
listed
species,
especially
where
that
conflicts
with
specific
limits
put
on
the
Agency
by
Congress.
See
responses
to
comments
226
and
229.
The
AFPA
case
is
inapposite.
The
CWA
does
not
contain
a
statutory
right
to
an
NPDES
permit
that
would
be
analogous
to
the
provision
in
the
CWA
relied
on
by
the
5th
Circuit
Court
of
Appeals
mandating
that
EPA
approve
State
NPDES
programs
meeting
certain
criteria.
1071
2
236.2
This
was
clearly
stated
by
the
Fifth
Circuit
Court
of
Appeals
in
American
Forest
&
Paper
Association
v.

U.
S.
Environmental
Protection
Agency,
137
F.
3d
291
(
5th
Cir.
1998),
where
it
was
held
that
EPA
could
not
give
the
Fish
and
Wildlife
Service
a
veto
over
Stateissued
NPDES
permits,
based
on
species
concerns,

when
EPA
was
otherwise
required
to
approve
these
permits
under
relevant
CWA
provisions.
The
same
principle
applies
here:
the
ESA
cannot
be
used
to
give
EPA
authority,
under
a
CWA
permit,
over
nondischarge
activities,
which
EPA
would
otherwise
have
no
authority
to
control.
1071
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237
With
that
responsibility
 
Section
7(
a)(
1)
of
the
ESA
 
in
mind,
I
encourage
EPA
to
consider
revising
the
scope
of
activities
to
be
covered
by
the
proposed
permit
to
only
those
actions
for
which
EPA
has
determined
and
the
Services
concur,
that
the
covered
activities
are
not
likely
to
adversely
affect
listed
species.
EPA
believes
that
the
scope
of
activities
covered
by
the
permit
is
appropriate.

The
Agency's
consultation
with
the
Services
supports
this
assertion.
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238
Section
1.3.
C.
6,
criterion
C
­
This
criterion
should
be
revised
to
read
'
A
permit
issued
under
authority
of
section
10(
a)(
1)(
B)
of
the
ESA
addressing
the
effects
of
the
storm
water
discharges,
allowable
non­
storm
water
discharges,
and
discharge­
related
activities
has
been
issued
for
the
construction
activities.
EPA
disagrees
with
the
commenter's
suggestion.
The
CGP,
as
worded,
now
requires
that
the
storm
water
discharges,
etc.
are
authorized
under
Section
10
of
the
ESA.
1075
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239
Section
1.3.
C.
6,
criterion
D
­
This
criterion
should
be
revised
to
read,
'
The
Fish
and
Wildlife
Service
or
National
Marine
Fisheries
Service,
as
appropriate,
has
provided
written
concurrence
with
the
determination
that
the
storm
water
discharges,
allowable
non­
storm
water
discharges,
and
discharge­
related
activities
are
not
likely
to
adversely
affect
listed
species
or
critical
habitat.'
See
comment
response
summary
209.
1075
2
240
Section
2.4
of
the
proposed
permit
would
provide
immediate
coverage
to
applicants
upon
submission
of
a
Notice
of
Intent.
I
recommend
that
coverage
under
the
permit
be
regarded
as
provisional
for
the
first
30
days
pending
the
outcome
of
any
response
from
the
Services
regarding
the
applicant's
determinations
related
to
listed
species.
The
resultant
delay
period
agreed
upon
by
EPA
and
the
Services
during
consultation
was
7
days.
This
will
enable
the
Services
to
flag
NOIs
for
projects
with
endangered
species
concerns
and
delay
discharge
authorization
until
such
concerns
have
been
adequately
addressed.
1075
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241
Addendum
A,
section
B,
Step
One
­
The
fact
that
EPA
deems
it
necessary
to
issue
a
general
permit
for
these
activities
indicates
there
are
likely
to
be
many
individual
actions
taken
under
this
authority.
The
Services
have
limited
resources
to
answer
technical
inquiries.
I
suggest
that
EPA
rearrange
the
bulleted
list
to
suggest
that
applicants
first
review
the
published
designations
of
critical
habitat
before
contacting
the
Services
to
determine
whether
their
site
lies
within
designated
critical
habitat.
The
permit
makes
it
clear
there
are
several
sources
available
for
this
information
without
suggesting
one
is
preeminent
and
should
be
used
first.
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242
Addendum
A,
section
B,
Step
Two
­
It
is
not
clear
whether
applicants
are
expected
to
comply
with
each
(
i.
e.,
all)
of
the
bulleted
paragraphs.
Also,
I
suggest
adding
language
to
the
final
paragraph
in
Step
Two
clarifying
that
per
40
CFR
122.64(
2),
incorrect
certification
of
no
listed
species
or
critical
habitat
will
serve
as
a
basis
for
immediate
revocation
of
an
individual's
coverage
by
the
Construction
General
Permit.
EPA
agrees
with
commenter's
language
addition.
Add
after
last
paragraph
under
Step
Two:
At
any
time
after
discharge
authorization
is
obtained,
if
listed
endangered
or
threatened
species
or
designated
critical
habitat
are
detected
or
are
known
to
exist
in
the
project
area,
but
the
presence
was
not
detected
and/
or
disclosed
to
EPA
or
the
Services
at
the
time
of
application,
CGP
coverage
will
be
terminated
immediately
as
per
40
CFR
122.64(
2).
1075
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243
Addendum
A,
section
B,
Step
Four
­
The
first
sentence
should
be
revised
to
read
'....
a
preliminary
determination
that
adverse
effects
are
likely. '
(
i.
e.,

change
affects
to
effects).
As
in
step
three
above,
any
decision
by
the
applicant
that
the
project
is
not
likely
to
adversely
affect
listed
species
or
critical
habitat
will
require
the
written
concurrence
of
the
Service.
EPA
acknowledges
this
comment,
and
believes
that
the
revised
permit
provisions
allow
for
sufficient
input
form
the
relevant
Service(
s).
1075
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244
Addendum
A,
section
B,
Step
Five
­
Any
activity
that
is
likely
to
adversely
affect
listed
species
that
is
not
otherwise
covered
through
the
provisions
of
criteria
B,

C,
or
E
of
the
Construction
General
Permit
will
require
formal
consultation
between
the
Service
and
EPA
(
see
50
CFR
402.14).
Formal
consultation
is
conducted
between
the
Service
and
the
federal
agency
proposing
to
take
an
action
that
may
affect
listed
species
or
critical
habitat.
The
language
in
Step
Five
should
be
revised
to
clearly
reflect
that
applicants
for
the
Construction
General
Permit
are
not
authorized
to
conduct
formal
consultation
on
EPA's
behalf.
Acknowledged
and
clarified.
By
the
terms
of
this
CGP,
EPA
has
automatically
designated
operators
as
non­
Federal
representatives
for
the
purpose
of
conducting
informal
consultations
(
not
for
formal
section
7
consultations,

however).
1075
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245
The
oil
and
gas
industry
cannot
avoid
the
potential
for
delay
associated
with
the
endangered
species,
historic
preservation,
and
other
eligibility
provisions
triggered
by
coverage
under
the
CGP.
We
believe
that
this
potential
for
delay
is
in
part
what
prompted
Congress
to
exempt
oil
and
gas
activities
from
the
NPDES
storm
water
program
in
the
first
place.
See
response
to
comment
304
1061
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246
Endangered
Species
Act
 
Proposed
CGP
Sections
Affected
by
this
Comment:
Section
1.3.
C.
6,
Add.
A
 

Fact
Sheet
Sections
Affected
by
this
Comment:

Section
1.3.
C.
6,
Add.
A
 
Oil
and
gas
operators
have
an
independent
obligation
under
the
Endangered
Species
Act
not
to
"
take"
endangered
species.
The
problem
with
the
proposed
CGP
(
like
the
existing
CCP)
is
that
the
permit
imposes
obligations
not
otherwise
applicable
to
oil
and
gas
activities
on
private
lands,
in
the
absence
of
other
federal
action,
to
conduct
biological
surveys
and/
or
consult
with
the
U.
S.

Fish
and
Wildlife
Services
(
USFWS).
These
requirements
have
the
real
potential
to
delay
oil
and
gas
drilling
and
development,
even
where
there
is
no
real
potential
for
endangered
species
to
be
harmed.

Delay
in
oil
and
gas
drilling
and
development
has
the
potential
to
cause
operators
to
lose
their
leases,
suffer
drainage,
and
frustrate
the
development
of
the
reserves,
ultimately
reducing
the
quantity
of
domestic
oil
and
gas
reserves
developed.
See
response
to
comment
304
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247.1
In
the
proposed
Fact
Sheet
on
section
1.3.
C.
6,
EPA
states
the
expectation
that
the
project
"
owner"
or
developer
will
perform
the
endangered
species
analysis:
The
project
"
owner"
or
developer
performs
the
endangered
species
analysis
during
the
planning
stages
of
a
project
(
i.
e.,
before
construction
is
scheduled
to
begin).
By
design,
this
effort
should
not
have
to
be
repeated
by
the
contractors,
homebuilders,

utilities,
etc,
whose
involvement
in
the
project
will
not
happen
until
later.
This
statement
may
be
generally
true
for
conventional
construction
projects,
but
it
is
not
correct
for
oil
and
gas
exploration
and
development.
It
illustrates,
however,
a
fundamental
difference
between
conventional
construction
activities
and
clearing,

grading,
and
excavating
activities
at
oil
and
gas
sites.

In
a
conventional
construction
project,
the
developer
or
owner
selects
a
specific
location
for
the
project
very
early
in
the
process,
the
selection
of
which
can
take
into
account
ESA
consideration.
See
response
to
comment
304
1061
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247.2
The
project
thereafter
can
be
evaluated
and
planned
around
that
specific
location.
An
O&
G
prospect
may
comprise
many
thousands
of
acres.
Many
prospects
take
several
years
to
obtain
leases
on
relevant
parts
of
the
prospect,
and
a
reasonably
precise
location
of
a
drill
site
cannot
be
determined
until
the
leasing
process
is
complete.
Moreover,
during
development
drilling,
the
precise
location
of
the
next
well
is
affected
by
the
results
of
previous
wells.
Addendum
A,
however,
is
site­
specific,
and
cannot
effectively
be
undertaken
until
the
drill
site
location
is
known
with
reasonable
certainty
and
precision.
By
the
time
the
leasing
process
is
complete
and
the
drill
site
is
located,
there
may
be
very
little
time
remaining
in
the
primary
terms
of
the
leases
to
complete
the
Addendum
A
inquiry
and/
or
consultation.
The
ESA
process
required
by
the
CGP
has
a
high
potential
to
cause
O&
G
owners
and
operators
to
lose
their
leases
and
to
have
their
O&
G
drained
by
development
on
neighboring
tracts
or
to
prevent
exploitation
of
the
reserves
altogether.
1061
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248
Surface
owners
or
others
who
oppose
oil
and
gas
development
may
try
to
interfere
with
the
mineral
owners'
rights
by
misusing
the
Endangered
Species
Act
requirements
of
the
CGP
to
delay
oil
and
gas
projects,
even
where
there
is
no
real
potential
for
adverse
effects
to
endangered
species.
See
response
to
comment
249
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249.1
The
due
diligence
inquiry
set
out
in
Addendum
A
is
complicated
[
See
63
Fed.
Reg.
at
36511­
14].
Even
where
the
operator
(
or
its
consultant)
concludes
that
adverse
effects
are
not
likely,
experience
on
conventional
construction
project
shows
that
consultation
with
FWS
may
be
forced
on
construction
operators
by
opponents
to
a
construction
project,
even
where
there
is
no
real
potential
for
adverse
effects
to
the
species.
There
is
no
regulatory
timetable
for
informal
consultation,
but
experience
indicates
that
it
can
take
as
little
as
8
weeks,
for
small
projects
with
little
environmental
impact,
to
as
long
as
6
months
for
larger,
more
complicated
projects
or
projects
with
potential
environmental
impacts.
Formal
consultations
are
subject
to
a
regulatory
clock,
but
this
process
itself
takes
6
months
to
more
than
a
year
to
work
through
[
See
Proposed
Fact
Sheet
at
50­
53].
The
potential
for
delay
is
a
matter
of
concern
for
a
conventional
construction
project,
but
delay
is
a
particularly
acute
problem
in
the
O&
G
industry.
The
Services
may,
independently
of
the
CGP,
become
involved
with
a
construction
project
as
each
operator
has
an
independent
obligation
to
prevent
a
take.
There
is
no
provision
in
any
regulation
that
compels
an
unwarranted
consultation
as
a
result
of
third­
party
pressure.
Oil
and
gas
operators
have
a
2­

year
permitting
postponement
while
EPA
reexamines
regulatory
impacts
to
the
industry.
1061
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249.2
Delay
may
cause
O&
G
operators
to
lose
their
leases,

frustrating
the
development
of
the
reserve
or
preventing
the
operator
from
protecting
against
drainage,
thereby
causing
financial
loss
to
the
operators
and
other
mineral
interest
owners
and,

ultimately,
causing
a
decline
in
the
development
of
domestic,
onshore
O&
G
reserves.
1061
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251
In
keeping
with
the
reality
that
some
projects
will
have
some
adverse
affect
on
essential
fish
habitat,
the
final
Construction
General
Permit
should
be
amended
to
include
an
authorization
that
applicants
whose
projects
may
adversely
affect
essential
fish
habitat
are
automatically
designated
as
non­
federal
representatives
to
conduct
consultations
with
NMFS
in
accordance
with
50
C.
F.
R.
600.920.
Essential
fish
habitat
was
determined
to
not
be
adversely
affected
by
the
CGP,

because
the
CGP's
action
is
to
reduce
pollutants
in
discharges.
There
are
no
essential
fish
habitat
screening
or
provisions
in
the
CGP
at
this
time.
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252
The
final
Construction
General
Permit
could
the
same
check
the
box
approach
for
essential
fish
habitat
consultation
compliance
that
is
already
included
for
Endangered
Species
Act
section
7(
a)(
2)
consultation
compliance,
together
with
reference
to
the
locations
where
interested
parties
can
obtain
information
on
designations
of
essential
fish
habitat.
This
new
section
could
be
section
1.3.
C.
8.
See
response
to
comment
251.
1072
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