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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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Southern Environmental Law Center (SELC) filings
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Southern Environmental Law Center (SELC) filed 1 comment on this docket between Jul 9, 2020 and Jul 9, 2020. 11 other organizations filed here. The comment window closed 2213d ago.

What Southern Environmental Law Center (SELC) filed (1)

Jul 9, 2020· Comment submitted by Ramona H. McGee, Staff Attorney, Southern Environmental Law Center et al.· EPA-HQ-OW-2020-0008-0018

As detailed more fully in the attached comments, submitted by the Southern Environmental Law Center on behalf of 20 conservation groups working in the Southeast, EPA's approval of a state's or tribe's assumption of Section 404 permitting responsibilities is discretionary and thus triggers the requirements for consultation under Section 7 of the ESA. We are concerned, however, about how states or tribes would ensure that the ESA's requirements are being applied at the project-specific level. A state or tribe may not merely undergo consultation at the assumption point and then have no further ESA obligations for future 404 permits the state or tribe issues.

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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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