UNITED STATES ENVIRONMENTAL PROTECTION AGENCY

REGION 5

77 West Jackson Boulevard

Chicago, IL 60604-3590

MEMORANDUM

SUBJECT: 	Endangered Species Act Considerations in Connection with
EPA’s Withdrawal of Certain Federal Aquatic Life Water Quality
Criteria Applicable to Wisconsin. 

FROM: 	Linda Holst, Chief

Water Quality Standards Branch

TO: 		The Record

DATE: 	June 8, 2011

Legal Background

The Endangered Species Act (ESA) Section 7(a)(2) requires that, in this
instance, EPA, in consultation with the U.S. Fish and Wildlife Service
(FWS), 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)). 

EPA Approved Wisconsin’s Revised Aquatic Life Criteria and Initiated
ESA Consultation

In 1997 Wisconsin adopted revised water quality standards to comply with
EPA’s 1995 Water Quality Guidance for the Great lakes System
(Guidance). The Guidance identified federal water quality criteria, and
equations resulting in criteria, that would apply in the event that EPA
disapproved State water quality standards under the Guidance. In 2000,
EPA disapproved Wisconsin’s revised equations resulting in aquatic
life criteria (hereinafter referred to as criteria) for chronic and
acute copper and nickel, and Wisconsin’s revised aquatic life criteria
for chronic endrin and selenium. Consequently EPA published a final rule
that identified the federal water quality criteria that applied
specifically to waters of the Great Lakes System (defined in 40 CFR
132.2) in Wisconsin designated for aquatic life use as a result of the
disapproval (40 CFR 132.6(f)-(j)). 

In July 2009, following a May 2009 submission from Wisconsin, EPA
approved the following revised State water quality criteria subject to
consultation with FWS under the ESA: 

Chronic and acute copper for surface waters in Wisconsin designated for
aquatic life use

Chronic and acute nickel for surface waters in Wisconsin designated for
aquatic life use

Chronic endrin for all surface waters in Wisconsin designated for
aquatic life use 

Chronic selenium for all surface waters in Wisconsin designated for
aquatic life use except Limited Forage Fish use 

The State’s revised and EPA-approved aquatic life criteria are
identical to, or appropriately slightly less stringent than, the federal
aquatic life criteria. The State’s criteria that are slightly less
stringent than the federal criteria were derived by the State using
scientifically defensible, site-specific modifications of the federal
criteria, as described in detail in the preamble. EPA approved the
State’s revised aquatic life criteria, determining that the criteria
are protective of the designated use and consistent with Clean Water Act
(CWA) Sections 101(a)(2) and 303(c)(2), and 40 CFR Parts 131 and 132.

EPA initiated informal consultation with FWS under ESA Section 7(a)(2)
on the approval action in 2008, and formally documented EPA’s
determination regarding ESA in July 2009. EPA deferred to the national
consultations initiated by EPA Headquarters on EPA’s published water
quality criteria for the protection of aquatic life, and concluded that
approving Wisconsin’s water quality standards subject to the outcome
of the national consultations did not constitute an irreversible or
irretrievable commitment of resources within the meaning of ESA Section
7(d). EPA based 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. 

 EPA is Withdrawing the Applicable Federal Aquatic Life Criteria

Wisconsin’s revised and EPA-approved criteria adequately protect
waters of the State designated for aquatic life use at a level
consistent with the Guidance and the CWA. Therefore, EPA’s federal
criteria are no longer needed, and may be withdrawn. In this rule, EPA
is withdrawing the following federal criteria for waters of the Great
Lakes System in Wisconsin designated by the State for aquatic life use:

 

Chronic and acute copper (40 CFR 132.6(f)), 

Chronic and acute nickel (40 CFR 132.6(f)),

Chronic endrin (40 CFR 132.6(f) — with the exception of the aquatic
life criterion for waters designated as Warm Water Forage Fish and Warm
Water Sportfish use), and 

Chronic selenium (40 CFR 132.6(g) — with the exception of the aquatic
life criterion for waters designated as Limited Forage Fish use). 

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

EPA has determined that the withdrawal of the federal aquatic life
criteria will have no effect on listed species for the State’s
criteria that are identical to the federal criteria. EPA defers to the
national ESA consultations on EPA’s approvals of Wisconsin’s revised
criteria that are slightly less stringent than the federal criteria, and
believes withdrawing these federal criteria will have no impact of
concern on listed species. The following subsections further describe
EPA’s ESA considerations in connection with the withdrawal. 

Withdrawal of Federal Criteria Identical to Wisconsin’s EPA-approved
Criteria

The following Wisconsin-revised and EPA-approved criteria are identical
to the federal criteria being withdrawn, and are therefore consistent
with CWA Sections 101(a)(2) and 303(c)(2), and 40 CFR Parts 131 and 132:

Acute nickel for all Wisconsin surface waters designated for aquatic
life use 

Chronic endrin for all Wisconsin surface waters designated as Cold Water
aquatic life use

Chronic selenium for all Wisconsin surface waters designated as Cold
Water, Warm Water Forage Fish, and Warm Water Sport Fish aquatic life
use

Given that Wisconsin’s revised and EPA-approved aquatic life criteria
for the pollutants listed above are identical to the federal criteria,
withdrawing the federal criteria will have no effect on listed species
and therefore, do not require additional ESA consultation. As noted
above, EPA initiated informal consultation with FWS on EPA’s approval
of the State’s revised criteria in 2009, and EPA deferred to the
previously initiated national consultations on EPA’s Guidance criteria
for the protection of aquatic life.

Withdrawal of Federal Criteria Slightly More Stringent than
Wisconsin’s EPA-approved Criteria

The following Wisconsin-revised and EPA-approved criteria are slightly
less stringent than the federal criteria in 40 CFR Part 132, due to
scientifically defensible, State-specific modifications to the federal
criteria as described in the preamble:

Chronic and acute copper criteria for all aquatic life uses

Chronic nickel criteria for Cold Water, Warm Water Sport Fish, Warm
Water Forage Fish, Limited Aquatic Life, and Limited Forage Fish aquatic
life uses

Chronic endrin criteria for Limited Aquatic Life and Limited Forage Fish
aquatic life uses

Chronic selenium criterion for Limited Aquatic Life designated uses

EPA approved Wisconsin’s methods for deriving the above criteria as
acceptable State-specific modifications of the federal criteria. The
equations used by the State to calculate the above criteria result in
criteria that are protective of the use, and are consistent with CWA
Sections 101(a)(2) and 303(c)(2), and 40 CFR Parts 131 and 132.
Therefore, EPA believes withdrawing the federal aquatic life criteria
for the pollutants listed above will not result in any impacts of
concern prior to conclusion of ESA consultation on Wisconsin’s revised
and EPA-approved criteria (initiated in 2008). Furthermore, EPA deferred
to the national consultations for EPA’s approvals of the State’s
revised aquatic life criteria, concluding that the approval of the
State’s criteria subject to the outcome of the national consultations
is consistent with ESA Section 7(d).  

VI. Summary 

EPA’s withdrawal of the applicable federal aquatic life criteria will
allow the State of Wisconsin to implement its revised and EPA-approved
criteria under the approved State program. EPA believes that withdrawing
the federal criteria that are identical to the State’s EPA-approved
criteria will have no effect on listed species, and withdrawing the
federal criteria that are slightly more stringent than the State’s
revised criteria will have no impact of concern on listed species.
Furthermore, EPA defers to the ongoing consultation on the approved
State criteria, consistent with ESA Section 7(d). EPA’s belief is
based on the following:

Wisconsin’s EPA-approved criteria are protective of the use and
consistent with the Guidance and the CWA and its implementing
regulations. 

Wisconsin used appropriate and scientifically defensible State-specific
modifications of the federal criteria to derive its revised criteria.

EPA’s July 2009 approval of Wisconsin’s criteria for these
pollutants 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 be
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 Wisconsin fresh water systems.


EPA believes that withdrawing the federal criteria, which will leave
identical or slightly less stringent Wisconsin criteria in place as
governing CWA water quality standards, is consistent with ESA
requirements.

 EPA withheld action on Wisconsin’s revised chronic selenium criterion
for Limited Forage Fish waters, since the criterion was based on
toxicity studies that exposed test organisms to selenium through the
water column. Currently available data indicate that toxicity to fish
primarily occurs as a result of dietary exposure to selenium, and
therefore a water column exposure-based criterion may not protect
aquatic life uses for Limited Forage Fish waters.

 Holst, Linda. “Determination regarding Endangered Species Act issues
associated with EPA’s approval of revisions to Wisconsin’s water
quality standards rules at WAC Chapter NR 105.” EPA Region 5. 01 July
2009.

 EPA is not withdrawing the chronic aquatic life use criterion for
endrin in waters designated as Warm Water Forage Fish and Warm Water
Sportfish until after Wisconsin corrects the number published in the
State’s regulations at NR 105.06 (0.05 µg/L) to reflect the State’s
revised and EPA-approved criterion (0.036 µg/L).

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