1
US
Fish
and
Wildlife
Service
National
Marine
Fisheries
Service
Comments
on
the
draft
MSGP/
Endangered
Species
Procedures
6/
24/
05
The
Services
recommend
the
following
changes
to
the
draft
MSGP/
Endangered
Species
Procedures:

1.
Revise
Criterion
A
and
Step
One.
Revise
Criterion
A
and
Step
One
to
reduce
the
likelihood
that
operators
are
falsely
concluding
species
are
not
present
in
proximity
to
their
facility
(
that
is,
the
action
area),
when
in
fact
they
are
present.

EPA:
Anything
we
can
include
to
enhance
this
part
of
the
guidance
procedures
we
will
gladly
do.
This
is
always
a
struggle
for
operators
to
complete
and
for
us
to
make
doable.
As
always,
for
these
types
of
permits
that
apply
to
thousands
of
entities,
the
trick
is
to
provide
a
methodology
that
minimizes
the
sending
of
permit
applicants
to
either
of
our
agencies
for
direct
help
(
otherwise
we'd
be
inundated
and
neither
could
allot
the
resources
to
deal
with
such
an
onslaught).

Based
on
a
limited
review
of
the
eNOIs
in
the
CGP
database,
this
criterion
(
listed
species
&
designated
critical
habitat
not
present),
is
most
frequently
selected
by
applicants
for
determining
eligibility
under
the
CGP.
The
Services
are
concerned
about
the
accuracy
of
determinations
that
rely
upon
this
criterion
(
and
the
self­
certified
NLAA
criterion).

EPA:
Yes,
accuracy
and
honesty
are
always
an
issue
when
dealing
with
private
individuals
or
companies
(
just
as
it
is
with
tax
collection
or
any
other
governmental
interaction).
That's
why
we
provide
detailed
guidance
and
have
legally­
binding
certifications
and
criminal
/
civil
penalties
for
transgressors.
That
said,
anything
we
can
do,
within
reason,
to
enhance
the
accuracy
of
operators'
investigations
and
certifications
we
will
do.

The
Services
would
like
to
reiterate
that
EPA
and
Services
work
together
to
conduct
an
audit
of
the
CGP
to
evaluate
the
procedures
contained
therein.

EPA:
What
exactly
would
this
entail?
While
this
can
be
looked
at,
CGP­
related
analyses
and
concerns
should
not
be
linked
to
this
consultation.
Remember,
the
vast
majority
of
covered
industrial
facilities
will
be
renewing
their
coverage
and
not
creating
new
threats
or
have
previously
unaccounted
for
species
/
habitat
to
consider.
It
would
be
inappropriate
to
base
the
requirements
of
one
permit
on
their
effectiveness
in
the
other.

In
the
interim,
the
Services
have
following
suggestions
for
strengthening
the
determinations
that
fall
under
Criterion
A
and
result
from
Step
One.

Between
publication
of
the
proposed
and
final
rule,
let's
work
together
to
improve
the
direction
given
to
operators
on
how
to
evaluate
effects
of
the
action.
EPA's
guidance
to
operators
under
Step
One,
suggests
that
they
seek
species
lists
from
the
Services.
While
and
informative
first
step,
the
lists
maintained
on
the
website,
http://
cfpub.
epa.
gov/
npdes/
stormwater/
esa.
cfm,
do
not
contain
information
at
a
fine
enough
resolution
to
aid
operators
in
reaching
a
"
no
presence"
determination.
EPA's
NPDES
Program
should
provide
operators
additional
assistance
in
determining
species
presence.
One
such
way
they
could
achieve
this
is
to
could
team
up
with
EPA's
Office
of
Pesticides
Program
who
with
the
assistance
of
state
representatives
and
local
fish
and
wildlife
experts
develops
and
distributes
county
bulletins
that
contain
maps
of
listed
species
and
designated
critical
habitat.
2
EPA:
Our
guidance
already
makes
it
clear
that
a
species­
in­
proximity
investigation
is
a
2­
part
effort
once
a
species
initially
shows
up
on
the
county
or
township
list.
At
this
point,
we
state
they
should
use
the
Services
or
Heritage
Centers
to
determine
localized
presence,
but
we
also
allow
them
to
use
their
own
experts
/
consultants
to
accomplish
this,
if
such
resources
were
available.
Years
ago
we
used
to
take
advantage
of
our
pesticide
office
for
providing
species
info
and
updates,
but
found
they
were
not
timely
or
reliable.
However,
if
they
are
now
a
resource
the
Services
are
comfortable
with,
we
can
certainly
cite
them.

A
number
of
fish
and
wildlife
management
agencies
of
many
states
maintain
computerized
(
sometimes
web­
based)
data
sources
that
operators
can
also
easily
access
for
finer
scale
resolution
on
presence/
absence
of
listed
resources.

EPA:
Do
you
have
a
specific
list
and/
or
addresses
of
these
resources
so
we
could
provide
it?

Once
the
operator
determines
that
there
could
be
listed
species
present
near
their
facility
(
within
the
action
area)
the
guidance
provides
further
instruction
that
they
must
do
one
or
more
of
the
following:
conduct
(
1)
visual
inspections
of
their
facility,
(
2)
formal
biological
surveys,
or
(
3)
an
environmental
assessment
under
the
National
Environmental
Policy
Act
(
NEPA).
Generally,
the
latter
tool,
the
NEPA
analysis,
relies
upon
a
combination
of
survey
methods
such
as
the
visual
inspection,
the
formal
field
survey,
and
can
rely
upon
a
wide
array
of
other
sources.
While
NEPA
should
be
referenced
if
conducted,
more
useful
and
comprehensive
sources
of
information
are
available
on
species
presence
and
EPA
should
encourage
their
staff
and
"
non­
federal"
representatives
to
be
using
the
best
scientific
and
commercial
data
available
(
section
7(
a)(
2)
of
the
ESA).

EPA:
NEPA
is
mentioned
as
just
one
possibility,
and
is
mostly
available
only
to
new
sources
(
i.
e.,
brand
new
factories).
It
will
not
be
widely
used,
given
the
small
number
of
new
industrial
facilities
coming
on
line.
We
can
include
the
verbiage
"[
use]
the
best
scientific
and
commercial
data
available."

Generally,
the
best
information
involves
a
combination
of
sources
such
a
state
agency
data
sets,
visual
inspections,
and
formal
surveys.
Reliance
on
only
one
method
for
detecting
a
species
presence
increases
the
risk
of
falsely
concluding
the
listed
species
is
not
using
the
action
area.
In
particular,
visual
inspections
are
one
of
the
least
reliable
methods
for
detecting
species
and
although
the
power
of
visual
inspections
can
increase
with
repeated
sampling,
visual
inspections
will
often
have
high
error
rates.
Many
factors
influence
the
accuracy
of
visual
inspections
including:
some
species
have
cryptic
life
stages
or
are
cryptic
throughout
their
life
cycle
making
visual
detection
(
without
sampling
impossible
or
nearly
so);
habitat
attributes
can
decrease
visibility
and
detection
(
e.
g.,
vegetative
and
geologic
structure,
water
clarity,
and
velocity
to
name
a
few);
species
behaviors
also
strongly
influence
detectability
 
species
are
mobile,
their
ranges
shift
over
time,
and
individual
animals
move
within
their
range
on
a
variety
of
scales,
not
to
mention
many
species
will
hide
if
disturbed
by
the
individual
conducting
visual
observations.
Therefore,
the
Services
suggest
that
EPA
revise
Step
One
so
that
operators
must
employ
several
methods
for
evaluating
presence.
Moreover
the
guidance
for
determining
what
information
to
select
should
reference
local
and
state
fish
and
wildlife
data
agencies
databases,
and
instruct
operators
to
ensure
that
they
are
using
the
"
best
scientific
can
commercial
data
available.

EPA:
"
Local
and
state
fish
and
wildlife
agencies'
databases"
can
be
cited
as
a
potential
resource,
as
this
ties
in
with
our
existing
requirement
that
operators
further
localize
their
investigations
once
a
species
shows
up
on
a
county
or
township
list.
EPA
already
requires
that
a
"
positive"
finding
during
the
2­
part
species
/
habitat
presence
investigation
of
Step
One
be
followed
up
with
"
one
or
more"
of
the
other
options
you
refer
to.
Requiring
every
operator
to
undergo
both
visual
inspections
and
a
biological
survey
is,
EPA
believes,
3
unnecessary
and
overly
burdensome
(
will
be
especially
so
to
the
SBA,
OMB
and
the
regulated
community)
because,
as
we
explain
in
Step
One,
visual
inspections
are
appropriate
"
for
facilities
that
are
smaller
in
size
or
located
in
non­
natural
settings
such
as
highly
urbanized
areas
or
industrial
parks
where
there
is
little
or
no
natural
habitat,
or
for
facilities
that
discharge
directly
into
municipal
separate
storm
sewer
systems."
Mandating
operators
of
such
facilities
to
perform
a
biological
survey
in
addition
to
visual
monitoring
would
be
costly
and
most
likely
not
yield
much
additional
benefit.
We
can,
however,
strengthen
the
language
regarding
the
need
for
formal
biological
surveys
and
to
strongly
discourage
just
using
visual
monitoring
for
any
facility
other
than
those
in
the
highly
urbanized,
etc.
settings.

Lastly,
the
MSGP
should
require
all
operators
maintain
the
documentation
they
relied
upon
to
determine
eligibility
under
this
Criterion
A.

EPA:
Documentation
is
a
requirement
in
the
permit
already.

2.
Delete
Criterion
E.
Procedurally,
if
an
operator
determines
their
activities
"
may
affect"
but
are
"
not
likely
to
adversely
affect"
spp
or
CH,
then
informal
consultation
with
the
Service
is
required.
The
operator
should
be
required
to
receive
a
written
concurrence
from
the
Service
prior
to
receiving
their
permit.
This
circumstance
is
already
covered
under
Criterion
D,

EPA:
No,
this
is
a
misunderstanding.
As
discussed
in
Criteria
B,
consultation
between
an
operator
and
the
Services
for
the
MSGP­
2005
is
only
an
option
when
done
"
as
part
of
a
separate
Federal
action
(
e.
g.,
during
application
for
an
individual
wastewater
discharge
permit,
the
issuance
of
a
wetlands
dredge
and
fill
permit,
or
as
a
result
of
a
NEPA
review)."
The
only
consultation
that
can
be
done
vis­
à­
vis
this
general
permit
is
occurring
now
with
the
EPA.
Since
an
individual
operator
cannot
initiate
or
engage
in
consultation
unless
involved
in
some
Federal
action
(
which,
in
this
case,
the
operator
is
not
as
the
Federal
involvement
doesn't
begin
until
the
NOI
is
submitted,
and
he/
she
cannot
submit
an
NOI
until
ES
issues
are
settled.
Another
way
to
look
at
it:
When
an
operator
is
determining
his/
her
eligibility
for
permit
coverage,
EPA
has
no
knowledge
about
or
involvement
with
him/
her,
and
therefore
cannot
designate
the
operator
as
a
non­
Federal
representative
for
purposes
of
consulting.),
the
only
way
a
new
consultation
can
occur
is
through
the
resource­
intensive
individual
permit
process.
While
this
is
possible,
and
may
be
necessary
in
some
instances
as
we
state
in
the
Fact
Sheet,
it
is
not
something
that
can
realistically
happen
very
often.
Hence,
the
"
coordination"
criteria
option
(
Criteria
D)
is
offered
to
provide
a
consultation­
like
interaction.
We
can
add
language
to
the
permit
requirements
(
in
addition
to
the
existent
language
in
the
act
Sheet)
about
the
need
to
submit
an
individual
permit
application
and
participate
in
consultation
for
the
extreme
cases,
but
this
should
remain
a
worst­
case
scenario
option.

so
E
is
not
necessary
if
we
are
following
procedures
correctly.
Furthermore,
the
Services
are
concerned
that
Criterion
E
has
a
high
potential
for
false
conclusions
that
species
are
not
likely
to
be
adversely
affected
by
discharges
when
in
fact
they
would
be
adversely
affected
by
the
discharge.

EPA:
Criteria
E,
while
not
ideal,
is
necessary.
Plus,
we
do
state
that
this
should
be
done
by
experts
in
the
appropriate
sciences,
thereby
giving
operators
the
option
of
performing
this
on
their
own
in
a
professional
and
reliable
manner.
In
any
case,
for
the
MSGP
there
are
several
salient
points
that
make
this
criterion
indispensable.
One
is
the
issue
of
resource
burden
for
us,
the
Services,
and
the
regulated
community,
were
this
option
to
go
away.
Another
is
the
fact
that
the
permit
exists
to
ensure
industrial
stormwater
discharges
are
clean.
If
the
operator
has
permit
coverage,
we
cannot
presume
he/
she
is
non­
compliant,
therefore
the
clean
discharges
are
unlikely
to
have
adverse
effects.
So
the
only
other
potential
impacts
we
could
address
would
be
associated
with
the
flow
and
siting
of
BMPs.
Industrial
BMPs
are
typically
not
structural
(
i.
e.,
they
are
of
a
"
good
housekeeping"
nature)
and
most
established
industrial
facilities
(
which
is
what
this
permit
largely
covers
 
very
few
new
facilities
are
getting
permits),
do
not
significantly
alter
the
existing
hydrology.
So,
it
is
not
unreasonable
that
an
operator
could
make
this
certification
without
extra
layers
of
investigation.
Moreover,
you
(
or
EPA)
can
put
an
indefinite
"
hold"
on
any
new
facility's
coverage,
via
the
e­
NOI
system,
if
there
appears
there'd
be
a
potential
problem.
4
The
MSGP
is
inclusive
of
a
wide
range
of
industrial
activities
and
resulting
stormwater
discharges.
Until
EPA
and
the
Services
have
completed
section
7
consultations
on
the
national
aquatic
life
criteria
and
any
subsequent
state
water
quality
standards,
reliance
on
these
protective
measures
to
mitigate
the
effects
of
exposure
to
listed
species
is
unfounded.
Moreover,
responses
that
species
exhibit
upon
exposure
to
stormwater
discharges
are
complex,
and
the
synthesis
and
ensuing
risk
prediction
that
results
from
the
species
interaction
with
the
pollutants
is
equally
complex.
Species
may
respond
to
exposure
in
a
wide
variety
of
ways,
including
immediate
mortality,
ranging
to
no
response
what
so
ever.
However,
more
frequently
and
perhaps
one
of
the
most
complex
aspects
of
evaluation
response
profiles
is
understanding
and
predicting
the
outcome
of
sub­
cellular
responses
that,
while
meaningful
to
the
individual
animal's
health
and
even
the
species
longevity,
can
easily
be
overlooked
by
the
facility
manager
who
is
not
trained
in
biology,
physiology,
and
ecotoxicology.

EPA:
We
can
synthesize
this
language
into
the
Fact
Sheet.

EPA's
responsibility
under
section
7(
a)(
2)
is
to
ensure
that
any
action
it
undertakes
is
not
likely
to
jeopardize
the
continued
existence
of
any
endangered
and
threatened
species
or
result
in
the
destruction
of
adverse
modification
of
habitat,
and
under
section
7(
a)(
1)
is
to
use
their
authorities
in
furtherance
of
the
purpose
of
the
ESA,
promoting
the
conservation
of
listed
species
and
their
designated
critical
habitat.

EPA:
The
MSGP
was
created
to
regulate
industrial
stormwater
discharges
so
that
the
physical,
biological
and
chemical
integrity
of
receiving
waters
is
protected.
As
such,
it
is
inherently
beneficial
to
species
/
habitat.
To
the
extent
there
could
be
effects
peripherally
associated
with
the
discharge
of
this
clean
water
(
e.
g.,
flow
effects,
BMP
siting),
EPA
has
included
requirements
and
guidance
to
address
these
peripheral
effects.

To
achieve
these
objectives,
the
Services
believe
this
criterion
should
be
deleted
from
the
MSGP
until
the
effects
of
stormwater
and
water
quality
standards
on
listed
species
are
further
evaluated,
and
the
CGP
use
of
this
criterion
is
also
evaluated
for
compliance
and
accuracy.

EPA:
Certainly,
cases
where
permittees
are
discharging
pollutants
in
harmful
amounts
can
be
enforced
against,
but
we
cannot
assume
this
until
such
evidence
is
presented.
This
would
only
happen
after
coverage
is
granted.
While
comprehensive
studies
on
the
interaction
of
stormwater
and
WQS
on
species
/
habitat
would
be
welcome,
it
is
unrealistic
that
such
a
monumental
and
complicated
undertaking
could
ever
be
accomplished
or
even
be
very
useful
for
general
permitting
purposes.
Regarding
the
CGP,
it
would
be
inappropriate
to
base
the
requirements
of
one
permit
on
their
effectiveness
in
the
other
(
see
previous
discussion).

3.
Revise
Criterion
D.
Revise
Criterion
D
to
state:
Consultation
between
the
Fish
and
Wildlife
Service
and
the
National
Marine
Fisheries
Service
has
been
concluded ..
The
result
of
the
consultation
must
be
written
statement
from
the
Services
that
the
facility
is
a)
not
likely
to
adversely
affect
threatened
and
endangered
species
and
federally
designated
critical
habitat,
or
b)
will
not
affect
threatened
and
endangered
species
and
federally
designated
critical
habit.

EPA:
Not
appropriate
as
discussed
above.

Please
also
clarify
the
following:
5
4.
Will
the
applicant
submit
information
supporting
their
endangered
spp
compliance
in
their
SWPPP/
permit
application
(
NOI?)
and
is
all
of
this
information
transmitted
and
available
to
the
field
offices
in
the
automated
system?

EPA:
No,
applicants
do
not
submit
any
SWPPP
or
ES
info
when
submitting
an
NOI
(
record­
keeping
nightmare).
As
explained
in
the
Fact
Sheet:
"
This
information
[
ES
investigation],
including
any
other
relevant
piece
of
information
such
as
the
SWPPP,
may
be
requested
by
the
Services
or
EPA
for
review
before
permit
coverage
is
authorized
or
by
an
inspector
after
the
fact."
Therefore,
you
could
just
put
a
hold
on
the
NOI
and
alert
EPA
that
you'd
want
to
see
the
info.
We
will
share
provide
you
the
procedures
for
reviewing
/
holding
up
NOIs
(
same
as
for
CGP).

5.
Does
EPA
still
intend
to
automate
the
notice
of
the
application
to
the
Services
as
discussed
in
December
2004?
That
is,
we
discussed
receiving
email
notices
for
both
the
MSGP
and
the
CGP.
For
the
MSGP,
we
anticipate
having
30
days
to
review
the
information
provided.
As
we
understand
it,
if
we
do
not
respond,
then
EPA
would
issue
the
permit.
If
the
FWS/
NOAAF
ask
for
more
information
the
application
will
be
on
hold
until
the
information
is
provided
and
any
necessary
coordination
or
consultation
is
completed.
If
the
FWS/
NOAAF
determine
the
issuance
of
the
permit
is
"
likely
to
adversely
affect"
listed/
proposed
spp/
CH,
then
the
applicant
will
need
to
get
an
individual
permit.
If
the
FWS/
NOAAF
determine
the
activity
is
"
not
likely
to
adversely
affect"
spp/
CH,
or
if
any
likely
adverse
effects
were
covered
under
separate
consultation
or
HCP,
then
the
permit
is
issued.

EPA:
Yes.

6.
The
conditions
in
the
MSGP
need
to
apply
for
proposed
T&
E
species
and
proposed
CH
as
well
as
listed
spp
and
designated
CH.

EPA:
Unfortunately,
we
wouldn't
be
able
to
justify
doing
this.
Proposed
species
and
habitat
were
included
in
the
MSGP­
1995
but
were
removed
due
to
public
comment
in
the
MSGP­
2000.
Commenters
pointed
out
it
was
inappropriate
to
determine
permit
coverage
based
on
species
that
haven't
gone
through
the
entire
listing
process.
EPA
would
not
be
able
to
backtrack
on
this
issue
for
this
version.

7.
Criteria
B,
C,
D,
and
F,
involve
demonstrating
ESA
compliance
through
separate
consultation
or
HCP
activities.
Whenever
an
applicant
asserts
ESA
compliance
was
completed
thru
one
of
these
criteria,
they
should
provide
permit
and
file
numbers
(
e.
g.,
for
a
404
permit
they
should
provide
the
Corps
permit
#
along
with
the
Service
file
number
or
reference
#
representing
our
response).
This
will
allow
staff
in
the
field
offices
to
review
permits
more
quickly.

EPA:
("
HCP"?)
Actually,
the
404
connection
is
probably
a
bad
example
because
of
it's
unlikelihood
for
industrial
dischargers,
so
we're
going
to
delete
it.
We
will
include
a
requirement
of
the
NOI
to
provide
any
permit
number
that
is
being
used
to
certify
under
Criterion
B
(
Criterion
F
is
already
there).

8.
On
the
"
fact
sheet"
there
were
2
instances
where
"
potential
jeopardy"
and
"
possible
jeopardy"
were
represented
as
decision
points
as
to
eligibility
under
the
MSGP
(
para.
for
letter
E
and
last
paragraph
same
page).
We
think
you
meant
"
adverse
effects"
and
not
"
jeopardy".

EPA:
Corrections
made.
