[Federal Register Volume 85, Number 99 (Thursday, May 21, 2020)]
[Notices]
[Pages 30953-30955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10913]


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ENVIRONMENTAL PROTECTION AGENCY

[EPA-HQ-OW-2020-0008; FRL-10008-96-OW]


Request for Comment on Whether EPA's Approval of a Clean Water 
Act Section 404 Program Is Non-Discretionary for Purposes of Endangered 
Species Act Section 7 Consultation

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice and request for comment.

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SUMMARY: The Environmental Protection Agency (EPA) requests comment on 
whether the EPA should reconsider its current position that 
consultation under Endangered Species Act (ESA) section 7 is not 
required when the EPA approves a state or tribe's request to assume the 
Clean Water Act (CWA) section 404 dredged and fill permit program under 
the CWA. Comments in response to this document will be considered as 
the EPA reviews this position. If the EPA changes its current position, 
then the EPA would take the position that the Agency's decision as to 
whether to approve or disapprove a state's or tribe's request to assume 
the CWA section 404 permit program involves an exercise of discretion 
warranting consultation under ESA section 7. Section 7 consultation 
under the ESA would consequently apply to state and tribal requests to 
assume the CWA section 404 program and potentially subsequent program 
revisions, and the EPA would consult on its actions with the U.S. Fish 
and Wildlife Service (FWS) and the National Marine Fisheries Service 
(NMFS) (hereafter referred to as ``the Services'') under the ESA as 
appropriate.

DATES: Comments may be submitted on or before July 6, 2020.

ADDRESSES: The EPA has established a docket for this action under 
Docket ID No. EPA-HQ-OW-OW-2020-0008. All documents in the docket are 
listed on the https://www.regulations.gov website. Although listed in 
the index, some information may not be publicly available, e.g., 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Certain other material, such as 
copyrighted material, may not be placed on the internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available electronically through https://www.regulations.gov.
    Instructions: All submissions received must include the Docket ID 
No. for this document. Comments received may be posted without change 
to https://www.regulations.gov/, including any personal information 
provided. Out of an abundance of caution for members of the public and 
our staff, the EPA Docket Center and Reading Room was closed to public 
visitors on March 31, 2020, to reduce the risk of transmitting COVID-
19. Our Docket Center staff will continue to provide remote customer 
service via email, phone, and webform. We encourage the public to 
submit comments via https://www.regulations.gov or email, as there is a 
temporary suspension of mail delivery to the EPA, and no hand 
deliveries are currently accepted. For further information on the EPA 
Docket Center services and the current status, please visit us online 
at https://www.epa.gov/dockets.

FOR FURTHER INFORMATION CONTACT: Kathy Hurld, Oceans, Wetlands, and 
Communities Division, Office of Water (4504-T), Environmental 
Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; 
telephone number: 202-564-5700; email address: 
404gESAconsultation@epa.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. General Information
    A. Does this action apply to me?
    B. What should I consider as I prepare my comments?
II. Background
    A. CWA Section 404 Dredged and Fill Material Permit Program
    B. State and Tribal Assumption of CWA Section 404
    C. Consultation Under the ESA and State and Tribal Assumption 
Under CWA Section 404
III. Request for Comment

I. General Information

A. Does this action apply to me?

    States and tribes that have assumed or are considering assuming the 
administration of the CWA section 404 dredged or fill permitting 
program, as well as regulated entities and members of the public may be 
interested in providing input on the issue described in this document.

B. What should I consider as I prepare my comments?

    Submit your comments, identified by Docket ID No. EPA-HQ-OW-2020-
0008, at https://www.regulations.gov (our preferred method), or the 
other methods identified in the ADDRESSES section. Once submitted, 
comments cannot be edited or removed from the docket. The EPA may 
publish any comment received to its public docket. Do not submit 
electronically any information you consider to be CBI or other 
information whose disclosure is restricted by statute. Multimedia 
submissions (audio, video, etc.) must be accompanied by a written 
comment. The written comment is considered the official comment and 
should include discussion of all points you wish to make. The EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (e.g., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.
    The EPA is temporarily suspending its Docket Center and Reading 
Room for public visitors to reduce the risk of transmitting COVID-19. 
Written comments submitted by mail are temporarily suspended and no 
hand deliveries will be accepted. Our Docket Center staff will continue 
to provide remote customer service via email, phone, and webform. We 
encourage the public to submit comments via https://www.regulations.gov. For further information and updates on EPA Docket 
Center services, please visit us online at https://www.epa.gov/dockets.
    The EPA continues to carefully and continuously monitor information 
from the Centers for Disease Control and Prevention (CDC), local area 
health departments, and our federal partners so that we can respond 
rapidly as conditions change regarding COVID-19.

II. Background

A. CWA Section 404 Dredged and Fill Material Permit Program

    Section 404 of the CWA establishes a program to regulate the 
discharge of dredged or fill material into waters of the United States, 
which includes wetlands. Activities in waters of the United States 
regulated under this program include, for example, fill for

[[Page 30954]]

development, water resource projects (such as dams and levees), 
infrastructure development (such as highways and airports), natural 
resource extraction projects, and wetland restoration efforts. CWA 
section 404 requires a permit before dredged or fill material may be 
discharged into waters of the United States, unless the activity is 
exempt from regulation under CWA 404(f). The substantive and procedural 
requirements applicable to CWA section 404 are detailed in the EPA's 
regulations at 40 CFR parts 230 through 233 and the regulations of the 
U.S. Army Corps of Engineers at 33 CFR parts 323 through 338. Proposed 
discharges are regulated through a permit process implemented by the 
U.S. Army Corps of Engineers or authorized states and tribes.

B. State and Tribal Assumption of CWA Section 404

    In amendments to the CWA in 1977 and 1987, Congress gave states and 
tribes the ability to assume responsibility for part of the CWA section 
404 permit program. The amendments require the EPA to approve or deny a 
state's or tribe's request to assume the permit program in lieu of the 
U.S. Army Corps of Engineers, to oversee operation of the assumed 
program, and to coordinate federal review of state or tribal permit 
actions. 33 U.S.C. 1344(g)-(i). To assume the CWA section 404 program, 
states or tribes must develop a dredged and fill material discharge 
permit program consistent with the requirements of the CWA and 
implementing regulations at 40 CFR part 233 and submit a request to 
assume the program to the EPA. States or tribes must have a program 
that is consistent with and no less stringent than the requirements of 
the CWA and implementing regulations. 40 CFR 233.1(d). The assumed 
program must include, but is not limited to, the following provisions 
laid out in the statute and program regulations: Regulation of 
discharges into all assumed waters within the state or tribe's 
jurisdiction; regulation of at least the same scope of activities as 
the CWA section 404 program; permitting procedures; permit issuance 
consistent with the environmental review criteria known as the CWA 
section 404(b)(1) Guidelines, applicable CWA section 303 water quality 
standards, and applicable CWA section 307 effluent standards and 
prohibitions; administrative and judicial review procedures; public 
notice and participation requirements; compliance and enforcement 
authorities as specified in the regulations; information collection 
requirements; and coordination procedures with Federal agencies and 
adjacent states and tribes. 40 CFR part 233, subparts C through F; see 
33 U.S.C. 1344(h).
    Section 404(h)(2) of the CWA states that if the Administrator of 
the EPA determines that a state or tribe that has submitted a program 
under section 404(g)(1) has the authority set forth in section 
404(h)(1) of the CWA, then the Administrator ``shall approve'' the 
state or tribe's program request to transfer the section 404 permitting 
program. Under CWA section 404(h)(3), if the Administrator fails to 
make a determination with respect to any program request submitted by a 
state or tribe within 120 days after date of receipt of the request, 
the program shall be deemed approved.

C. Consultation Under the ESA and State and Tribal Assumption Under CWA 
Section 404

    The ESA section 7 directs each Federal agency to ensure, in 
consultation with the Services, that ``any action authorized, funded, 
or carried out by such agency . . . is not likely to jeopardize the 
continued existence of'' listed species or result in the destruction or 
adverse modification of designated critical habitat. 16 U.S.C. 
1536(a)(2). If the Federal agency determines that an action will not 
affect listed species or designated critical habitat, ESA section 7 
consultation is not required. In addition, the ESA regulations at 50 
CFR 402.03 state that section 7 applies to ``all actions in which there 
is discretionary Federal involvement or control.''
    In National Association of Home Builders v. Defenders of Wildlife, 
551 U.S. 644 (2007), the United States Supreme Court held that because 
the transfer of CWA National Pollutant Discharge Elimination System 
(NPDES) permitting authority to a state ``is not discretionary, but 
rather is mandated once a State has met the criteria set forth in 
section 402(b) of the CWA, it follows that a transfer of NPDES 
permitting authority does not trigger section 7(a)(2)'s consultation 
and no-jeopardy requirements.'' 551 U.S. at 673. The Supreme Court held 
that ``[w]hile EPA may exercise some judgment in determining whether a 
State has demonstrated that it has the authority to carry out section 
402(b)'s enumerated statutory criteria, the statute clearly does not 
grant it the discretion to add an entirely separate prerequisite to the 
list. Nothing in the text of section 402(b) authorizes the EPA to 
consider the protection of threatened or endangered species as an end 
in itself when evaluating a transfer application.'' Id. at 671.
    The EPA has previously taken the position that the Supreme Court's 
rationale in National Association of Home Builders applies to approval 
of a state's or tribe's dredged and fill permit programs under section 
404(h) of the CWA. On December 6, 2010, the Environmental Council of 
the States (ECOS) and the Association of State Wetland Managers, Inc. 
(ASWM), sent a letter to the EPA asking whether the EPA must conduct an 
ESA section 7 consultation prior to approving or disapproving a state 
or tribe's section 404 program request. See Docket ID No. EPA-HQ-OW-
2020-0008. The Agency responded to ECOS and ASWM in a December 27, 2010 
letter (``Letter to ECOS and ASWM''), see Docket ID No. EPA-HQ-OW-2020-
0008, stating that, as in the CWA section 402(b) context, when 
considering a state or tribal CWA section 404 program request, the EPA 
is only permitted to evaluate the specified criteria in CWA section 
404(h) and does not have discretion to add requirements to the list in 
CWA section 404(h), including considerations of endangered and 
threatened species through ESA section 7 consultation with the 
Services.
    The EPA stated in the 2010 letter that although there are some 
differences between CWA sections 402 and 404, the EPA's position was 
that the Supreme Court's reasoning in the National Association of Home 
Builders case applies to the EPA's approval of a CWA section 404(g) 
permitting program. Section 404(h)(2) of the CWA states that if the 
Administrator determines that a state program submitted under CWA 
section 404(g)(1) has the authority set forth in section 404(h)(1) of 
the CWA, then the Administrator ``shall approve'' the state's 
application to transfer the CWA section 404 permitting program. The 
2010 letter thus concluded that this action is non-discretionary and 
ESA consultation is not required. The EPA further noted that although 
ESA section 7 consultation is not required, a number of important 
safeguards exist in the CWA and the EPA's regulations which work to 
ensure that concerns about listed species and designated critical 
habitat are addressed in approved CWA section 404(g) programs. State 
and tribal programs must issue permits that comply with the CWA section 
404(b)(1) Guidelines (40 CFR 233.20(a)) which include the requirement 
that a permit may not be issued that ``[j]eopardizes the continued 
existence of species listed as endangered or threatened under the 
Endangered Species Act of 1973, as amended, or results in likelihood of 
the destruction or adverse modification of . . . critical habitat . . . 
.'' 40 CFR

[[Page 30955]]

230.10(b)(3). Additionally, permits which have ``[d]ischarges with 
reasonable potential for affecting endangered or threatened species as 
determined by the Fish and Wildlife Service'' must be sent to the EPA 
for review. The EPA shares these permits with the U.S. Army Corps of 
Engineers and the Services during this review.
    In July 2019, the EPA received a request from the Florida 
Department of Environmental Protection (FDEP) asking the EPA to engage 
in an ESA section 7 consultation with the Services in connection with 
the EPA's initial review of a Florida's request to assume the CWA 
section 404 program. FDEP provided a white paper contending that ESA 
section 7 consultation is required in the CWA section 404 assumption 
context because of the unique statutory text and legislative history 
found in CWA section 404, which, in the FDEP's view, differ in critical 
respects from other state delegation programs administered by the EPA 
where ESA section 7 does not apply.
    FDEP made a number of points in its white paper. See Docket ID No. 
EPA-HQ-OW-2020-0008. FDEP noted that, as a preliminary matter, the 
EPA's approval or disapproval of state assumption of the CWA section 
404 program is an ``action'' for purposes of ESA section 7(a)(2). The 
Services' regulations governing ESA consultations expressly define 
``action'' to include ``the promulgation of regulations,'' 50 CFR 
402.02, and the EPA's approval of state assumption is undertaken 
through rulemaking. FDEP then emphasized that the key question for ESA 
section 7 purposes is, as explained in National Association of Home 
Builders, whether the action is ``discretionary'' with the agency. To 
trigger Section 7 consultation, the statute must give the agency 
authority to ``consider the protection of threatened or endangered 
species as an end in itself'' in making the relevant decision. National 
Association of Home Builders, 551 U.S. at 671. In contrast to CWA 
section 402(b), FDEP noted that CWA sections 404(g)(2) and (3) 
expressly require that, when a state or tribe applies for assumption, 
the EPA must provide ``the Secretary of the Interior, acting through 
the Director of the United States Fish and Wildlife Service'' an 
opportunity to comment on a state application for assumption of the CWA 
section 404 program. Relatedly, CWA section 404(h)(1) requires the EPA, 
in making a determination of whether to approve the state or tribal 
program, to ``tak[e] into account any comments submitted by . . . the 
Secretary of the Interior, acting through the Director of [FWS]'' under 
CWA section 404(g). The FWS is responsible for the implementation of 
the ESA and its consultation requirements. Thus, FDEP concluded that 
CWA section 404(g) requires the EPA to receive and consider input 
specifically focused on the protection of threatened and endangered 
species.
    Second, FDEP noted that CWA section 404(h)(1) requires the EPA, in 
deciding whether to approve state or tribal assumption of the CWA 
section 404 program, to determine whether the state has authority 
``[t]o issue permits which, . . . apply, and assure compliance with, 
any applicable requirement of this section, including, but not limited 
to, the guidelines established under section (b)(1) of this section . . 
. .'' The CWA section 404(b)(1) Guidelines, codified at 40 CFR part 
230, provide that: ``No discharge of dredged or fill material shall be 
permitted if it . . . [j]eopardizes the continued existence of species 
listed as endangered or threatened under the Endangered Species Act of 
1973, as amended, or results in likelihood of the destruction or 
adverse modification of [critical] habitat.'' 40 CFR 230.10(b)(3) 
(emphasis added). By requiring the EPA to take into account the views 
of the Services and by incorporating consideration of ``jeopardy'' to 
species and ``adverse modification'' of critical habitat via the CWA 
section 404(b)(1) Guidelines, FDEP concluded that CWA sections 404(g) 
and (h) expressly require the EPA to determine whether the state or 
tribe has adequate authority to apply and assure compliance with the 
substantive requirements of the ESA. FDEP pointed out that neither 
requirement is part of the EPA's CWA section 402(b) delegation 
decision.
    Unlike under CWA section 402(b), FDEP viewed the EPA as possessing 
discretion under CWA sections 404(g) and (h) to ``consider the 
protection of threatened and endangered species as an end in itself,'' 
National Association of Home Builders, 551 U.S. at 671, in determining 
whether to approve a state's application to assume the CWA section 404 
program. FDEP in its white paper cited excerpts from the legislative 
history and case law that it viewed as supporting its position that the 
EPA's decision as to whether to approve or disapprove state CWA section 
404 programs is ``discretionary'' within the meaning of 40 CFR part 
402.

III. Request for Comment

    The EPA is seeking public comment regarding whether to reconsider 
its position that it lacks discretionary involvement or control within 
the meaning of 50 CFR 402.03 when acting on a state or tribal 
application to administer the CWA section 404 program to trigger the 
requirements of section 7 of the ESA, based on the positions 
articulated in the FDEP white paper, as well as any other 
considerations that may be relevant to this issue, and consequently 
whether the EPA can and should engage in one-time ESA section 7 
consultation with the Services in connection with the EPA's initial 
review of a state or tribal request to assume the CWA section 404 
program.
    To aid in its consideration of this issue, the EPA is taking 
comment as to whether, and on what basis, the EPA's approval of a state 
or tribe's program under CWA section 404(h) is a discretionary agency 
action for the purpose of ESA compliance. Specifically, the EPA seeks 
comment on whether the EPA should reconsider the position articulated 
in its 2010 Letter to ECOS and ASWM that in deciding whether to approve 
or disapprove a state's or tribe's CWA section 404 program, the EPA 
lacks discretion to consider the protection of threatened or endangered 
species, and therefore that this decision does not trigger ESA section 
7 consultation. The EPA seeks comment on the question as to whether the 
Agency should, alternatively, adopt the position articulated in the 
FDEP white paper that the EPA's decision as to whether to approve or 
disapprove a state or tribe's CWA section 404 program provides the EPA 
with discretion warranting consultation under ESA section 7. The EPA 
requests commenters' views as to the legal viability of this potential 
interpretation as well as the programmatic implications of this 
interpretation, including its implications for existing state CWA 
section 404 programs and for permit applicants and permittees.
    The EPA's docket for this document includes a number of background 
documents, including the 2010 Letter to ECOS and ASWM, the FDEP white 
paper, excerpts from the legislative history of CWA sections 404(g) and 
(h), and other documents to assist commenters as they consider the 
EPA's request for comment.

David P. Ross,
Assistant Administrator, Office of Water.
[FR Doc. 2020-10913 Filed 5-20-20; 8:45 am]
 BILLING CODE 6560-50-P


