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EPANonrulemakingEPA-HQ-OW-2020-0008

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

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Defenders of Wildlife filed 1 comment on this docket between Jul 10, 2020 and Jul 10, 2020. 11 other organizations filed here. The comment window closed 2213d ago.

What Defenders of Wildlife filed (1)

Jul 10, 2020· Comment submitted by Lindsay Dubin, Staff Attorney, Defenders of Wildlife· EPA-HQ-OW-2020-0008-0033

Please see attached for our full comments on this rulemaking. On behalf of our 1.8 million members and supporters, Defenders of Wildlife ("Defenders") submits the attached comments in response to the U.S. Environmental Protection Agency's ("EPA's") solicitation of feedback regarding whether the agency's review of a state's application to assume Clean Water Act ("CWA") Section 404 permitting authority constitutes a discretionary action, triggering Section 7 consultation pursuant to the Endangered Species Act ("ESA"). See 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, 85 Fed. Reg. 30,953 (May 21, 2020). The EPA's review of these applications ("Assumption Applications") is undoubtedly the discretionary exercise of a federal agency action, requiring the EPA to consult with the U.S. Fish and Wildlife Service ("FWS") and the U.S. National Marine Fisheries Service ("NMFS") before taking any final action on an application. However, in response to the EPA's request for comments regarding the implementation of such consultation, we object to the State of Florida's misguided request that the consultation process be used to short circuit 404 permittee compliance with Section 10 of the ESA. See 16 U.S.C. 1539(b). Statewide Incidental Take Statements ("ITSs") derived from consultation on Assumption Applications would undermine Congress's intent in developing Section 10 of the ESA, and it would not provide remotely sufficient protections for ESA-listed species. Rather, even after a state assumes authority over a 404 program, 404 permit applicants whose actions would result in a take must continue to obtain Incidental Take Permits ("ITPs").

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Abstract

The Environmental Protection Agency (EPA) requests comment on whether the EPA should reconsider its current position that consultation under Endangered Species Act Section 7(a)(2) is not required when the EPA approves a State or Tribe's request to assume the Section 404 dredged and fill permit program under Section 404(h) of the Clean Water Act (CWA). CWA Section 404(h)(2) states that if the Administrator determines that a State program submitted 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's application to transfer the Section 404 permitting program. The Agency has received a request to reconsider its position that approval of a State’s Section 404 program is a nondiscretionary action, and thus under the Endangered Species Act, Section 7 consultation is not required. Comments in response to this notice will be considered as the EPA reviews this position. If the EPA changes its current position, then the Agency would take the position that the Agency has discretion to consult on CWA Section 404 program assumption. Therefore, Section 7 consultation under the Endangered Species Act (ESA) would apply to State and tribal requests to assume the Section 404 program (and some subsequent program revisions) and the EPA would consult on these actions with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) under the Endangered Species Act FWS under the ESA as appropriate.

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