Comments on Draft MOA

EPA is asking for comments on a draft "Memorandum of Agreement" between it, and the two Federal agencies with responsibilites for endangered species--the National Marine Fisheries Service and the U.S. Fish and Wildlife Service. The Agreement addresses how EPA and the other two agencies ensure that the wastewater discharge program and water quality standards program will protect endangered species. States run most of these programs.

Overall, the agreement lets EPA off the hook because it does not commit EPA to advocate for endangered species protection, although that is clearly its responsibility under Section 7(a)(1) of the Endangered Species Act. Also, the spirit of the Clean Water Act itself would prevent the killing of endangered species or the pollution of their habitat. The agreement does not make use of that, either. Instead, it's business as usual.

Comments are due April 15, 1999. Send them to the address in the letter below, or electronically to:

ow-docket@epamail.epa.gov

Either way, mention that this refers to Docket # W-98- 32.

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April 12, 1999

W-98-32
ESA Comment Clerk
Water Docket (MC4101)
USEPA
401 M Street SW
Washington DC 20460

The following are the comments of the Raymond Proffitt Foundation (RPF), a not-for-profit conservation group incorporated in the Commonwealth of Pennsylvania, on docket number W-98-32. RPF takes a particular interest in water quality, water quality standards, and the protection of endangered species, and ensuring that government agencies fulfill their mandatory duties assigned by appropriate statutes.

We take particular interest in agreements such as this one. We have found in Pennsylvania that the state Department of Environmental Protection (DEP), despite strong rhetoric, does not use its existing authorities to protect Federally-listed threatened and endangered species, or even follow their own laws and regulations. State and Federal agencies trying to protect our rare species are ignored by the state. EPA exercises its broad oversight role only reluctantly or after litigation (RPF has been successful in two separate lawsuits filed against EPA over Pennsylvania's water quality standards). Our comments and suggestions on the draft MOA will be illustrated by numerous examples, using information obtained under Freedom of Information Act requests, showing the lack of protection of endangered species.

General Comments:

Before making specific comments on the draft MOA itself, we cannot help but comment on the tone of the document. The signatories go to great lengths to reassure the reader that the MOA does not expand or alter any existing authorities or obligations; that it does not obligate states or tribes; that it does not change EPA's oversight responsibilities, nor does it give the Services "veto" power over state-issued NPDES permits or water quality standards. From our point of view, any of those would be a welcome change. We certainly cannot count on Pennsylvania following their own statutes and regulations, let alone federal regulations that may apply to them through the NPDES program or water quality standards program. We also cannot count on EPA consistently exercising oversight.

Example: Pennsylvania (DEP) issued a drinking water permit to a bottled water facility, that would draw down the water table in a 65 acre wetland complex containing bog turtles, a state-endangered and federally-threatened species. DEP ignored their own "Clean Streams Law," and their own water quality standards, as well as comments from the Pennsylvania Fish and Boat Commission about the potential for ecological harm. The watershed in question is designated "Exceptional Value," which Pennsylvania contends is equivalent to the federal "Tier 3" of antidegradation; theoretically no degradation is allowable. The wetlands had a similar state classification. A coalition of conservation groups was forced to sue Pennsylvania in state court--and won, the judge citing Pennsylvania's own law.

Example: At one time, Pennsylvania considered "threatened or endangered species" as a "selection factor" in determining if watersheds received the "Exceptional Value" designation (equivalent to the federal "Tier 3" of antidegradation." In a recent regulatory proposal (May 1997; reiterated in January 1999), DEP proposed eliminating this provision, most likely because citizens and the resource agencies actually expected them to designate watersheds based on this provision. Their excuse was "there is no explicit federal antidegradation regulation for special protection of endangered species." Never mind that waters containing endangered species are arguably waters of "exceptional ecological significance" (wording in the federal antidegradation policy). There is a legal principle that states that changes in wording are only done for a reason. Because Pennsylvania removed the explicit language, any protection they extend is more prone to judicial reversal. Realistically, this means that Pennsylvania is less likely to extend additional protection to watersheds harboring endangered species. This is an example of the type of stewardship we can expect from the state.

Example: In NPDES permits, Pennsylvania DEP automatically allows "mixing zones," even for toxic chemicals and those that accumulate through the food chain, and has routinely disregarded concerns of the U.S. Fish and Wildlife Service that endangered species could be adversely affected in some of these permits. In one instance, the Service requested that Pennsylvania reopen the public comment period on a not-yet-issued NPDES permit because normal operation of the plant at low flows caused a kill of endangered freshwater mussels. Pennsylvania refused, even though the discharger also requested that their NPDES permit undergo Section 7 consultation.

Summary: State programs, if they are similar to Pennsylvania's, need some "disruption." Pennsylvania disregards its own water quality standards and its own laws, as well as the Endangered Species Act. State water quality standards need to explicitly protect endangered species. As this document points out, the goals of the CWA and ESA are complimentary. States have not gotten that message. EPA needs to strongly carry that message to Pennsylvania.

For discharge permits, the absolute, automatic default is that an NPDES permit will be issued with a mixing zone, despite the presence of endangered species or their habitat. The Raymond Proffitt Foundation is most familiar with the streams of southeastern Pennsylvania that do not contain endangered species. Many of these streams are 100% sewage effluent in summer because since its passage, the Clean Water Act has been ignored by Pennsylvania and EPA. Our research into this MOA revealed to us that Pennsylvania issues NPDES permits with a "one size fits all" approach whether the receiving water contains endangered species, or is already 100% effluent--even the presence of endangered species makes no difference! The "NPDES" acronym is correct; however, in Pennsylvania it stands for "No Problem--Disregard Endangered Species!" We are much closer to that than we are to a "National Pollutant Discharge Elimination System." Perhaps waters with endangered species is a good place to start eliminating the discharge--not continuing to discharge and thus eliminate the species.

Specific Comments:

II. Goals and Objectives.

Two of the goals and objectives speak to "meeting responsibilities under section 7 of the ESA" and "improve methods for coordinating compliance with... section 7 of the ESA." EPA is the party with section 7 responsibilities in this document. Ostensibly these references to section 7 refer to both section 7(a)(1) and section 7(a)(2). However, under "III. Guiding Principles," the document reads "...[states and tribes] are not signatories to this agreement, which only applies to Federal actions subject to section 7(a)(2) of the ESA" (emphasis added). While this document speaks to section 7(a)(2) in almost every section, it does not speak to EPA's responsibilities under section 7(a)(1). This is a drawback, and may be the biggest flaw of the entire agreement: this document does not begin to outline EPA's responsibilities under section 7(a)(1) of the ESA.

Consider the basic level of organization envisioned by this document, the "Local/Regional Coordinating Teams" (in section V.A.1.). While this team is required to "c. [i]dentify high priority areas of concern and opportunities for cooperation" (possibly a catch-all that could include section 7(a)(1)), it is also charged with "g. [i]dentify ways to reduce the impacts of proposed agency actions on endangered and threatened species." Certainly a noble goal, but here's a question: What EPA actions so commonly impact endangered species that looking for ways to minimize their impacts becomes a routine duty of any team? One possible answer: Signing off on the routine issuance of state-issued NPDES permits.

In other words, throughout this document, EPA is focused on the consultation requirements of section 7, and minimizing impacts and avoiding jeopardy. This is admirable, but should be "no brainers." There should be no EPA activities that jeopardize endangered species (how could that possibly be consistent with the CWA goals?) and none that would adversely impact threatened or endangered species (same argument--how could those actions possibly be consistent with the CWA?). After all, EPA is supposed to be protecting the environment-- they are not the Forest Service who is mandated to cut down trees, or the Air Force who may have to practice dropping bombs, possibly destroying the habitat. Why should avoiding jeopardy be so difficult for EPA? Which leads to the great opportunity that this MOA presents, but is thus far missed.

In this document, EPA should be looking to see how their broad mandates under the CWA fit in with their section 7(a)(1) responsibilities to conserve rare species. The document does not address this huge, and as far as we can tell, unfulfilled EPA responsibility.

States that have delegated NPDES programs have agreed to fulfill the goals of the Clean Water Act. If states are issuing permits that kill endangered species, then they are in violation of the Clean Water Act as well as the Endangered Species Act. What could EPA be doing to conserve listed species? For example, EPA should be promoting "zero discharge" strategies in watersheds with endangered species. In the interim, EPA could disallow mixing zones for toxic chemicals in such waters.

All states must adopt water quality standards that help fulfill the Act. But the standards need to explicitly protect endangered species, not just "minimize the impacts." EPA should promote water quality standards that protect endangered species habitat. EPA could ensure that states enforce their own standards, and emphasize that enforcement in waters where endangered species reside merits special EPA attention. These are the types of section 7(a)(1) actions that EPA should be taking.

EPA needs to take an active role on the side of endangered species protection and tell states that it is their responsibility to protect endangered species-- under the Clean Water Act. The Goals and Objectives section of this MOA should be amended to include section 7(a)(1) responsibilities of EPA.

VI. National Level Activities to Ensure Protection of Species

A. National Rule-making.

The rule-making that EPA proposes, namely that their water quality standards regulation specify that water quality be such that jeopardy is avoided, is much ado about nothing. As stated above, EPA's regulations and state standards should protect endangered species by avoiding the killing of endangered species altogether. Water quality that allows for endangered species to be killed or is of such poor quality that endangered species are excluded meets neither the goals of the ESA or the CWA.

VIII. Consultation on Water Quality Standards Actions

For both the section on the development of new or revised state standards, and the section on existing water quality standards, there is again mention of avoiding jeopardy, but we believe that any conditions that allow for the take of endangered species does not meet the intent of either Act. Also, There is no mention that of 40 CFR 131.22(b):

The Administrator may also propose and promulgate a regulation, applicable to one or more States, setting forth a new or revised standard upon determining such a standard is necessary to meet the requirements of the Act.

This agreement should cite this passage as one example of a section 7(a)(1) action that EPA could take if state standards are found to be lacking in full protection of endangered species. If the Acts are "compatible," then EPA should promulgate state standards if a state refuses to modify its standards so that endangered species are protected.

IX. Permitting Program Activities

How will either EPA, a state, or the Services determine if the adverse effects of a permit "are minor," or "are more than minor." Regardless, this implies that states may issue NPDES permits that allow for the killing of endangered species, or allow sections of habitat to be rendered useless. As we stated above, we believe such permits do not meet the goals of the Clean Water Act, let alone the Endangered Species Act. This section seems to be written more to ensure that states issue permits without "disruption" than it does to ensure that endangered species are protected.

Thank you for the opportunity to comment.

Sincerely yours,

Joseph W. Turner
Secretary-Treasurer
P.O. Box - 723
Langhorne, Pa. 19047-0723
gateway@rayproffitt.org
http://www.rayproffitt.org

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