MEMORANDUM

SUBJECT: Endangered Species Act Section 7(a)(2) and EPA Withdrawal of Certain Federal Criteria Applicable to Certain Waters in California


Purpose of the Memo

Section 7 of the Endangered Species Act (ESA) and federal regulations at 50 CFR Part 402, require federal agencies to consult with the U.S. Fish and Wildlife Service (FWS) and/or the Nation Marine Fisheries Service (NMFS) to insure their activities are not likely to jeopardize the continued existence of federally-listed endangered or threatened species or result in the destruction or adverse modification of designated critical habitat of such species.  Federal agencies subsequently conduct a biological assessment (or biological evaluation) to determine whether any such species or their critical habitat are likely to be adversely affected by the agency action.  Consultation is only required for actions that "may affect" listed species or designated critical habitat.  40 CFR § 402.03. The purpose of this memo is to address ESA considerations associated with the Environmental Protection Agency's (EPA) withdrawal of federal aquatic life water quality criteria for lead and federal human health criteria for chlorodibromomethane and dichlorobromomethane applicable to certain waters in California.

Summary of Federal Action

EPA is amending its federal regulations to withdraw human health (water & organisms) criteria for chlorodibromomethane and dichlorobromomethane for a segment of New Alamo Creek and a segment of Ulatis Creek, California. In addition, EPA is amending its federal regulations to withdraw freshwater acute and chronic aquatic life criteria for lead for the Los Angeles River and its tributaries. By withdrawing these criteria, the federal action will enable California to implement the State-adopted, EPA-approved water quality criteria for the same waterbodies where federally promulgated water quality criteria were previously applicable.  Upon finalizing this federal action, these federally promulgated water quality criteria will no longer be applicable for CWA purposes.  California's water quality criteria, approved by EPA, will be the effective criteria for CWA purposes. 

Relevant Background of Federal Action and Anticipated No Effect Determination 

Lead

On May 18, 2000, as part of a final rule known as the "California Toxics Rule" (CTR), EPA promulgated federal regulations establishing aquatic life water quality criteria for lead (40 C.F.R. 131.38; 65 FR 31681, May 18, 2000). On July 11, 2016, California completed its adoption process to incorporate water quality objectives for lead for the Los Angeles River and its tributaries. On July 19, 2016, the State submitted the site-specific objectives to EPA Region 9 for CWA 303(c) review and approval. On December 12, 2016, EPA approved the site-specific objectives for lead for the Los Angeles River and its tributaries. The Los Angeles Regional Water Quality Control Board adopted these site-specific objectives under Resolution No. R15-004.  The California State Water Resources Control Board in Resolution No. 2015-0069 subsequently approved the Regional Board action on these site-specific objectives, and EPA subsequently approved the State Board action. EPA approved the State's site-specific objectives for lead.  Although less stringent than the federally promulgated criteria, EPA determined that the State's site-specific objectives were scientifically sound and protective of the designated use(s) for the Los Angeles River and its tributaries and met the requirements of the CWA and EPA's implementing regulations at 40 CFR 131.  

Because California now has site-specific objectives for lead for the protection of aquatic life, approved by EPA for CWA purposes, for the Los Angeles River and its tributaries, EPA has determined that the federally promulgated freshwater acute and chronic aquatic life criteria for lead are no longer needed for the Los Angeles River and its tributaries.

EPA concludes that there will be no effect on federally-listed threatened and endangered species and designated critical habitat from its withdrawal of the previously applicable, federally promulgated aquatic life criteria for lead because EPA has completed consultation with FWS on its approval of California's newly adopted aquatic life water quality objectives for lead for the Los Angeles River and its tributaries ("state lead objectives") by the finalization of this federal rulemaking.  EPA initiated consultation with FWS concerning EPA's approval of the state lead objectives on December 12, 2016.  On December 12, 2016, EPA submitted a Biological Evaluation for FWS's review that determined that EPA's approval of the state lead objectives was not likely to adversely affect federally-listed species or adversely modify designated critical habitat. On January 9, 2018,, EPA officially concluded consultation with FWS concurrence that EPA's approval of the state lead objectives was not likely to adversely affect federally-listed species or adversely modify designated habitat.  Furthermore, the consultation on EPA's approval of the state lead objectives was premised on these objectives henceforth being the CWA-applicable water quality objectives.  In addition to EPA's approval, a subsequent step is necessary to make the state lead objectives CWA-applicable.  The additional step is the withdrawal of EPA's federally promulgated criteria for lead for the Los Angeles River and its tributaries ("federal lead criteria").  EPA's withdrawal of the federal lead criteria will have no effect on listed species or designated critical habitat because any effects of the withdrawal were considered during the informal consultation on approval of the state lead objectives. The Section 7 consultation on EPA's approval of the state lead objectives concluded on January 9, 2018 and therefore, any impacts to listed species or designated critical habitat are already included in the environmental baseline. See 50 CFR 402.02. Withdrawal of the federal lead criteria therefore adds no impacts to the environmental baseline and thus, has no effect on listed species or designated critical habitat.     

Relevant Background of Federal Action and No Discretion Determination 

Chlorodibromomethane and dichlorobromomethane

On May 18, 2000, as part of the CTR, EPA promulgated federal regulations establishing human health water quality criteria for chlorodibromomethane and dichlorobromomethane (40 C.F.R. 131.38; 65 FR 31681, May 18, 2000). On November 3, 2011, California completed its adoption process to incorporate human health water quality criteria for chlorodibromomethane and dichlorobromomethane, for a segment of New Alamo Creek and a segment of Ulatis Creek. On December 13, 2011, the State submitted the site-specific objectives to EPA Region 9 for review and approval. On April 9, 2013, EPA approved site-specific objectives for that segment of New Alamo Creek and that segment of Ulatis Creek. The Central Valley Regional Water Quality Control Board  adopted the objectives in Resolution No. R5-2010-0047, and the State Water Resources Control Board approved the objectives in Resolution 2011-0036, which was submitted to EPA by the State. EPA approved the State's site-specific objectives. Although less stringent than the federally promulgated criteria, EPA determined that the State's site-specific objectives were scientifically sound and protective of the designated use(s) for the segment of New Alamo Creek and the segment of Ulatis Creek.  

Because California now has site-specific human health (for water and organisms) criteria approved by EPA for CWA purposes for chlorodibromomethane and dichlorobromomethane for a segment of New Alamo Creek and a segment of Ulatis Creek, EPA determined that the federally promulgated human health (water and organisms) criteria are no longer needed for that segment of New Alamo Creek and that segment of Ulatis Creek.

EPA has concluded that it has no discretion to consult on its withdrawal of the previously applicable human health (water & organisms) criteria for chlorodibromomethane and dichlorobromomethane because the action pertains to criteria supporting designated uses other than aquatic life (e.g., fish consumption, full-body contact, partial-body contact). The rationale for this decision is articulated in the 2009 Memorandum from Benjamin Grumbles, Office of Water Assistant Administrator, which stated that:

      For ESA section 7(a)(2) to apply, EPA must be taking an action in which it has sufficient discretionary involvement or control to protect listed species. State WQS actions where EPA has concluded that it lacks such discretion include... approval of water quality criterion to protect human health... Human heath water quality criteria are designed to protect humans, not plants and animals. EPA's discretion to act on a State submission is limited to determining whether the criteria ensure protection of designated uses upon which the criteria are based (i.e. use by humans). Therefore, EPA has no discretion to revise an otherwise approvable human health criterion to benefit listed species.  

Although the rationale articulated in the 2009 Memorandum is provided within the context of EPA approval of state WQS actions, the Memorandum's rationale is relevant and applicable to withdrawals of federally promulgated water quality criteria that effectuate the approval of state WQS actions. Therefore, consultation under Section 7 is not required for EPA's withdrawal of chlorodibromomethane and dichlorobromomethane human health water quality criteria for a segment of New Alamo Creek and a segment of Ulatis Creek.
