Reply to

Attn Of: 	OWW-131

MEMORANDUM

SUBJECT:	Endangered Species Act Considerations In Connection with EPA(s
Removal of the State of Washington’s Numeric Criteria for Marine
Copper and Cyanide, referenced in Washington Administrative Code
173-201A-040 Table 240(3) Toxic Substances Criteria, from the National
Toxics Rule

FROM:	Jannine Jennings

		Manager, Water Quality Standards Unit

TO:		The Record

Section 7(a)(2) of the Endangered Species Act (ESA) requires that
federal agencies, in consultation with the U.S. Fish and Wildlife
Service and/or the National Oceanic and Atmospheric Administration
Fisheries Service (the Services), ensure that actions they authorize,
fund, or carry 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.    SEQ CHAPTER \h \r 1 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, Section 7(d) of the ESA
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.

In 1997, the State of Washington submitted criteria for marine copper
(chronic) for EPA review under the Clean Water Act (CWA).  In addition,
in 2003, the State submitted a criterion for marine cyanide (chronic)
for EPA review.  EPA approved these criteria in 1998 and 2007,
respectively.  Prior to those approvals, EPA initiated consultation with
the Services under Section 7(a)(2) regarding EPA’s approval actions
and determined that approval of the State’s criteria prior to
conclusion, and subject to the outcome, of ESA consultation was
consistent with ESA Section 7(d).  EPA concluded that the approvals
subject to the outcome of ESA consultation did not constitute an
irreversible or irretrievable commitment of resources within the meaning
of Section 7(d) in that the Agency retained sufficient authority under
the CWA to implement alternatives that might be determined in the
consultation to be needed to comply with Section 7(a)(2).  In
particular, EPA retained the full range of options available under
Section 303(c) of the CWA for ensuring water quality standards are
environmentally protective.  EPA could, for example, work with the State
of Washington to ensure that it revises its standards as needed to
ensure protection of listed species, initiate rulemaking under Section
303(c)(4)(B) of the CWA to promulgate federal standards to supersede the
State’s standards or, in appropriate circumstances, change EPA’s
approval to a disapproval.  Moreover, EPA believed that the approval of
these standards would not result in any impacts of concern prior to
conclusion of ESA consultation.

EPA is now removing the State of Washington from the National Toxics
Rule (NTR) for the marine copper (chronic) criteria which the State
submitted in 1997 and for the marine cyanide (chronic) criterion
submitted in 2003, which EPA approved in 1998 and 2007, respectively. 
As described above, EPA is already consulting with the Services under
the ESA regarding EPA’s approvals of the State’s marine copper and
cyanide criteria and has concluded that approval of the State’s
criteria subject to the outcome of consultation is consistent with
Section 7(d) of the ESA.  EPA similarly believes that removal of the
State from the NTR, which will effectively leave the same State criteria
upon which EPA is already consulting in place as governing CWA water
quality standards, is consistent with ESA requirements.

EPA notes that the State’s general (i.e., non-site-specific) marine
cyanide criteria (chronic), which EPA approved 2007, are identical to
the marine cyanide criteria in the NTR (and are also identical to
EPA’s marine cyanide criteria guidance issued under CWA section
304(a)).  Thus, removal of the State from the NTR for these criteria
will leave identical approved State criteria in place and will have no
effect on listed species or designated critical habitat in any area of
the State not covered by separate site-specific marine cyanide criteria.
 As noted above, EPA is also consulting with the Services regarding
approval of these State criteria.

Removal of the State from the NTR will also leave in place the State’s
approved marine copper criteria (chronic) and marine cyanide criteria
for Puget Sound (an area for which – as part of the 1998 approval
action – EPA approved site-specific State criteria).  As described
above, EPA is already consulting on these State criteria, and EPA’s
1998 approval was expressly made subject to the outcome of that
consultation.  Removal of the State from the NTR for these criteria and
areas does not constitute an irreversible or irretrievable commitment of
resources that would foreclose either the formulation by the Services,
or the implementation by EPA, of any alternatives that might be
determined in the consultation to be needed to comply with Section
7(a)(2).  In removing Washington from the NTR for these criteria, EPA is
not limiting or altering its authority (described above) to take
appropriate action if the consultation identifies alternatives needed to
protect listed species and comply with Section 7(a)(2).

In addition, EPA continues to believe that the approved standards will
adequately protect listed species and designated critical habitat and
will not result in any impacts of concern following removal of the State
from the NTR and prior to conclusion of ESA consultation.   EPA’s
belief is based on the following: 1) the criteria and listed species of
concern have not changed since EPA’s previous evaluation completed
concurrent with the 1998 and 2007 actions; 2) the State criteria that
remain in place are consistent with EPA’s current 304(a) guidance; 3)
as part of other ongoing ESA consultations, EPA is evaluating potential
affects of these parameters on listed species using the most current
methodologies including a thorough literature search, use of surrogates
and models as needed, and consideration of multiple lines of evidence,
bioaccumulation and effects on prey species.  Findings to date do not
indicate any impacts of concern for those species which either reside in
or rely on Washington marine waters; and 4) the facilities most likely
to discharge cooper and cyanide in Washington marine waters are federal
facilities.  EPA retains NPDES permitting responsibility for these
facilities and, therefore, EPA will complete ESA consultation under ESA
Section 7(s)(2) on these permits prior to reissuance.  If any concerns
are surfaced at that time, they may be addressed in either the permit or
through reconsideration of EPA’s approval action.  

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