EPA's approach to endangered species protection in state clean water act programs.

I. INTRODUCTION

In the last decade the National Marine Fisheries Service (NMFS) has issued an unprecedented number of endangered and threatened salmonid listings(1) under the Endangered Species Act (ESA).(2) These listings affect virtually every major watershed in the Pacific Northwest(3) and are reminders that these water bodies and the species they support are in peril.(4) Such results should come as no surprise, given that over 870 water bodies in the State of Oregon alone fail to meet water quality standards(5) under the Clean Water Act (CWA).(6) While degraded water quality is one of many factors leading to the decline and extinction of salmonid populations,(7) ESA listings expose the failure of the Clean Water Act to achieve its congressionally mandated goal of fishable waters.(8)

ESA listings also raise important liability issues for state agencies administering Clean Water Act programs like the National Pollutant Discharge Elimination System (NPDES) permit program,(9) as well as private actors who must comply with the CWA and the ESA.(10) State agencies responsible for CWA programs face an unusual predicament: they must comply with minimum federal CWA requirements, but their actions are not federal activities triggering ESA consultations.(11) This uneasy duality arises because the Clean Water Act authorizes states to assume responsibility under state laws for water pollution control programs in lieu of programs admirestered by the federal government.(12) One potential result of the CWA's peculiar cooperative federalism structure is that state authorities may issue to private permittees NPDES permits that comply with the CWA but not with the ESA. This anomaly leaves private actors uneasy and uncertain about the duties and liabilities the ESA places on them and their state-issued permits.(13) As more aquatic species are listed under the ESA,(14) it is crucial for federal and state agencies to understand how the ESA and the CWA can complement one another to protect aquatic species and their habitat.

In an effort to provide stronger protection for listed species and to create "greater regulatory predictability for States, Tribes, and the public,"(15) the Environmental Protection Agency (EPA), the Fish and Wildlife Service (FWS), and NMFS developed coordination procedures in several draft Memoranda of Agreements (MOAs) for approving and reviewing state permit and water quality standards programs.(16) Most notably, the draft MOA procedures rely on water quality standards as the vehicle to protect endangered species. To ensure that water quality standards are protective of listed species, the latest draft MOA calls for ESA consultations when EPA triennially reviews state water quality standards.(17) Without a similar federal action triggering mechanism in state permit programs, the draft MOA instead proposes to establish a federal fish and wildlife review of state-issued permits, which must also comply with water quality standards protective of endangered species.(18) While EPA's efforts to take affirmative steps to integrate the complementary goals of the CWA and the ESA are commendable and potentially signal important change, the true measure of success will turn on the actual protection provided by water quality standards to endangered and threatened species.

This Comment evaluates whether EPA's proposed approach to species protection under state-administered Clean Water Act programs is an effective one. As the agency institutes these new procedures in state CWA programs, will ESA consultations ensure that water quality standards--the baseline for state-issued permits--afford endangered and threatened species the level of protection mandated under the ESA? Moreover, will state and federal agencies embrace these material changes to improve water quality in order to meet the needs of endangered species? Part II of this Comment provides the statutory background of the CWA and ESA, explaining how these Acts can potentially promote species protection via water quality standards. Part III analyzes how EPA's proposed 1992, 1997, and 1999 interagency agreements with the Services(19) aim to protect aquatic species in state NPDES permit and water quality standard programs under CWA authority. Part IV then evaluates the most recent MOA, challenging the capability of the national consultation and accompanying biological opinion to actually ensure that state water quality standards and state-issued permits will not jeopardize listed species or adversely modify or destroy designated critical habitat. That Part then considers the agency's application of consultation procedures to its most recently delegated state permit program in Texas and questions the ability of current water quality standards to adequately protect species. Finally, a look at the recent section 7 consultation on Oregon's water quality standards raises skepticism about the agencies' commitment to setting and enforcing water quality standards that protect listed species. Part V concludes that EPA's interagency agreement is an important effort to protect species under state CWA programs, because it materially changes water quality standards to function as the centerpiece of the CWA. In this new role, water quality standards could potentially drive the NPDES permit program and address the nation's grave nonpoint source pollution problem.(20) Recent attempts to implement this vision in Texas and Oregon, however, illustrate administrative reluctance and scientific challenges in relying on water quality standards to meet all the needs of endangered aquatic species.

II. HOW THE ENDANGERED SPECIES ACT AND THE CLEAN WATER ACT CAN PROTECT AQUATIC SPECIES

The language of both the Endangered Species Act and the Clean Water Act refer to species protection and viability as overarching goals. The ESA aims to protect and recover species facing extinction pressures and the ecosystems on which they depend.(21) To encourage nationwide conservation, the ESA requires federal agencies to cooperate with state and local agencies "to resolve water resource issues in concert with conservation of endangered species."(22) Similarly, the CWA strives to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters,"(23) a more expansive goal than mere pollution control. One measure of biological integrity is the degree to which the water affords "protection and propagation of fish, shellfish, and wildlife,"(24) another primary goal of the CWA. Currently though, discharges of pollutants authorized by federal or state CWA permits may adversely affect proposed or listed endangered aquatic species and their habitat, thereby undermining the objectives of both the CWA and the ESA.(25) Despite the overlapping goals of these environmental statutes--achieving healthy aquatic ecosystems--the statutes have largely functioned independently of each other in the past. This Part examines how the CWA and the ESA independently address species protection and how ESA consultations regarding state water quality standards may serve to link these interrelated statutes and further the goal of sustainable aquatic ecosystems.

A. The Clean Water Act

Achieving fishable waters was a primary goal of the 1972 Federal Water Pollution Control Act Amendments, now commonly referred to as the Clean Water Act.(26) To this end, Congress set out to eliminate the discharge of pollutants into navigable waters by 1985, to attain and maintain fishable and swimmable waters by 1983, and to immediately prohibit the discharge of toxic pollutants in any amount.(27) As part of this grand water pollution control scheme, the CWA gives "due regard ... to the improvements which are necessary to conserve such waters for the protection and propagation of fish and aquatic life and wildlife."(28) Not only did Congress explicitly refer to fish and wildlife protection in the CWA's preamble,(29) but also throughout its substantive sections.(30) For example, the CWA establishes qualitative water standards that consider the use and value for "propagation of fish and wildlife"(31) and quantitative effluent discharge limits that in turn must meet these water quality standards.(32)

1. The Cooperative Federalism Structure of the Clean Water Act

The Clean Water Act created the National Pollutant Discharge Elimination System under section 402 as the primary mechanism to achieve its fishable waters goal and established water quality standards (WQSs) under section 303 to supplement this new water pollution control regime.(33) The NPDES permit program regulates the discharge of pollutants from point sources into waters of the United States based on predetermined technology-based controls.(34) By contrast, state water quality standards manage both point and nonpoint source discharges based on how they qualitatively affect the receiving waters.(35) Under the CWA's cooperative federalism scheme,(36) EPA and the states share concurrent authority to develop and implement water pollution controls.(37) While the CWA does not require states to operate its programs, the statute's language and legislative history indicate a clear congressional intent for states to assume primary responsibility in "prevention, reduction, and elimination of pollution,"(38) while EPA was intended to play only a supervisory role.(39) One court has pronounced that "Congress repeatedly articulated its expectation that the states would play a major role in administering [the NPDES program]," subject to EPA review.(40)

2. State Assumption of the NPDES Permit Program

Section 402 of the CWA authorizes EPA to approve and oversee state-administered NPDES permit programs for point source discharges into waters.(41) States seeking to administer an NPDES program must demonstrate that they have the legal authority under state law to operate and enforce the program consistently with the CWA's minimum requirements.(42) The statute requires EPA to approve the program if the state meets all nine enumerated requirements listed in section 402(b) of the CWA.(43) The statute requires the state to provide public notice of all permit applications and submit copies to EPA.(44) States also must submit draft permits to FWS, NMFS, and any other federal agencies with jurisdiction over fish, shellfish, and wildlife resources and receive comments from the Services on state-issued permits.(45) Although EPA cannot refuse state assumption of species protection under the ESA or other federal statutes,(46) the agency retains discretion under section 402(b)(1)(A) to incorporate effluent limitations and "any more stringent limitation[s]" under section 301 by reference.(47) This provision means that when technology-based or secondary treatment limits are not adequate to satisfy water quality standards in receiving waters, NPDES permits must provide more stringent limits.(48) Such limitations could include current state water quality standards protective of listed species.(49) Once EPA approves a state's permitting authority, the agency suspends the issuance of federal permits.(50) To date, EPA has delegated NPDES permitting authority to forty-three states and one U.S. territory and has never revoked state authority, even though it has the power to do so.(51)

Approved states must ensure that newly issued permits comply with federal technology-based controls.(52) These end-of-pipe effluent limitations restrict the type and amount of pollutants that may be discharged into navigable waters based on the source's technological capabilities.(53) While federal effluent limitations serve as a minimum, states can adopt more stringent pollution-control standards.(54) As long as permittees abide by applicable effluent limitations, states cannot impose new effluent limitations during the permit's five-year lifespan.(55) Compliance with an NPDES permit means compliance with the obligations of the CWA, thus shielding dischargers from CWA liability.(56)

3. State Water Quality Standards

In the CWA, Congress recognized that technology-based controls might fail to meet state water quality standards despite individual compliance with effluent limitations. Consequently, Congress required NPDES permits to include "any more stringent limitation[s]" necessary to meet water quality standards developed by the states.(57) This requirement is aimed to prevent water quality from falling below protective levels for species in states that adopt such standards.(58)

Water quality standards provide the strongest authority for species protection in state NPDES programs because these standards often set numeric goals for specific water bodies and are the foundation for water-quality-based effluent limitations for NPDES permits under section 301(b)(1)(C).(59) Water quality standards seek to improve the overall quality of water bodies by 1) designating uses of water bodies, 2) setting criteria to protect those uses,(60) and 3) creating an antidegradation policy that protects existing uses and ensures high water quality.(61) Water bodies unable to meet water quality standards qualify as "water quality limited segments," which states rank based on their importance and level of pollution.(62) States then establish total maximum daily loads (TMDLs) for each water quality limited segment by identifying the maximum amount of pollutants a water body can receive from all point and nonpoint sources each day without violating water quality numeric and narrative standards.(63) These levels, in turn, serve as the baseline for allocating pollution control responsibilities among point and nonpoint source dischargers.(64)

States promulgate water quality standards, subject to federal approval and review on a triennial basis, in order to protect public health and welfare, enhance the quality of water, and serve the CWA's purposes.(65) When adopting or revising standards, states must consider the "propagation of fish and wildlife"(66) and adopt an antidegradation policy to maintain existing instream water uses and the level of water necessary to protect the existing uses.(67) Under section 303(c)(3), if the EPA Administrator determines that a standard meets the requirements of the Act, "such standard shall thereafter be the water quality standard for the applicable waters of that State."(68) EPA's approval of new or revised water quality standards triggers ESA section 7 consultation, which in turn requires that state waters protect endangered and threatened species.(69)

The State of Oregon, for example, has water quality standards for the Willamette Basin that allow "no measurable surface water temperature increase resulting from anthropogenic activities ... [i]n stream segments containing federally listed Threatened and Endangered species if the increase would impair the biological integrity of the Threatened and Endangered population."(70) Other designated beneficial uses include anadromous fish passage, salmonid fish rearing, salmonid fish spawning, resident fish, and aquatic life.(71) The state has also adopted narrative standards that are specific to aquatic life criteria.(72) Given such designated beneficial uses and narrative criteria, the state cannot legally issue NPDES permits unless they do not harm listed species, regardless of ESA requirements.

4. EPA's Oversight Authority of the NPDES and WQS Programs

State assumption of NPDES programs minimizes federal regulatory involvement in water pollution permitting, but EPA retains oversight authority at both the individual permit and program levels.(73) According to EPA's interpretation, however, its NPDES oversight authority does not trigger ESA consultation because there is no federal activity for purposes of section 7(a)(2).(74) Within ninety days of reviewing proposed individual applications, EPA can object to or veto a state permit.(75) For example, EPA can object where the permit fails to ensure compliance with state water quality standards, such as state narrative or numeric criteria for water quality.(76) EPA regulations, however, do not specifically authorize the agency to object to state-issued permits on grounds that they fail to protect fish or wildlife or ESA-listed species.(77) Once EPA has raised an objection to the proposed state permit, the state has thirty days to resubmit the permit with new actions to address agency concerns.(78) If the state fails to satisfy EPA conditions, the agency can issue a federal permit.(79) Once EPA approves a proposed permit application, however, it has limited legal authority to require a state to modify an issued permit.(80) EPA also has the authority to withdraw a state program if it fails to meet national standard requirements(81) and to institute enforcement actions on its own.(82) Such power, however, is exercised only in the most egregious circumstances.(83)

Developing water quality standards is primarily the responsibility of states; EPA's role is to develop recommended scientific guidelines for state WQSs and to oversee state adoption and revision of standards that satisfy CWA provisions.(84) EPA's involvement in reviewing new and revised state water quality standards is a federal action, triggering section 7 consultation procedures under the ESA.(85) The CWA requires EPA to develop water quality criteria based on "the latest scientific knowledge ... on the kind and extent of all identifiable effects on ... plankton, fish, shellfish, wildlife, [and] plant life ... which may be expected from the presence of pollutants in any body of water."(86) States, in turn, establish numeric criteria based on either EPA's recommended aquatic life criteria or other "scientifically defensible methods."(87) EPA has authority to approve (within sixty days) or disapprove (within ninety days) new and revised state water quality standards.(88) In cases where EPA disapproves an existing state standard and recommends changes that would achieve compliance with the CWA, the state must adopt such changes within ninety days.(89) If the state fails to adopt minimum federal requirements, the CWA requires EPA to promulgate federal water quality standards.(90)

B. The Endangered Species Act

Only one year after Congress addressed national water pollution problems, Congress enacted the Endangered Species Act to conserve endangered and threatened species to the point where protection under the statute is no longer necessary.(91) Recognizing the Act's far-reaching and unparalleled protections for species on the brink of extinction, the Supreme Court in 1978 heralded the ESA as "the most comprehensive legislation for the preservation of endangered species ever enacted by any nation."(92) Unlike previous species legislation, the drafters of the ESA expressly declined to protect imperiled species only "where practicable";(93) instead, they afforded species conservation the highest of priorities regardless of cost.(94) To accomplish this formidable task, the ESA directs the Secretaries of the Departments of the Interior and Commerce to promulgate regulations listing imperiled species as "endangered" or "threatened"(95) and designating their critical habitat.(96) Congress gave the ESA substantive teeth by providing two main prohibitions against adversely affecting listed species--section 7 and section 9.

Section 7, which applies only to federal agencies, licensees, and permittees, requires all federal agencies to affirmatively use their authority to promote conservation and recovery of protected species,(97) and it bans all actions likely to jeopardize the continued existence of federally listed species or to adversely modify or destroy the species' designated critical habitat.(98) To comply with the jeopardy prohibition,(99) federal agencies must also follow section 7's procedures, which require agencies to consult with FWS or NMFS before proceeding with proposed "agency actions" to determine whether such actions are likely to jeopardize an endangered or threatened species.(100)

Any action "authorized, funded, or carried out" by a federal agency triggers consultation procedures under section 7.(101) The Services' joint implementing regulations for consultation broadly construe the term "action":

   "Action" means all activities or programs of any kind authorized, funded,
   or carried out, in whole or in part, by Federal agencies in the United
   States or upon the high seas. Examples include, but are not limited to: ...

   (c) the granting of licenses, contracts, leases, easements, rights-of-way,
   permits, or grants-in-aid; or

   (d) actions directly or indirectly causing modifications to the land, water
   or air.(102)

This statutory duty to consult, however, applies only to federal "actions in which there is discretionary Federal involvement or control."(103)

Section 9 of the ESA casts a broader net than section 7 by prohibiting any person from taking an endangered species within the United States or its waters.(104) The statute broadly defies the term "take" to include "harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."(105) Both FWS and NMFS define "harm" to include significant habitat modification or destruction that actually kills or injures wildlife by significantly impairing essential behavior patterns, including breeding, feeding, or sheltering.(106) The Supreme Court has upheld this regulatory definition as a reasonable interpretation of the statute.(107)

Both section 7 and section 9 prohibitions allow limited actions that result in the incidental taking of listed species.(108) Under section 7, where agency actions might otherwise violate the taking prohibition of section 9, FWS or NMFS can issue an incidental take statement along with a biological opinion so long as the Secretary determines that 1) the taking is incidental to the central purpose of the project, and 2) reasonable and prudent measures will minimize taking and avoid jeopardy.(109) Each incidental take statement must include an estimated numerical impact of the incidental take on the species, reasonable and prudent measures to minimize the impact on the species, and any applicable terms and conditions (including reporting requirements).(110) This regulatory exemption is specifically tailored to meet the particular needs of species potentially affected by such federal action. Thus, when EPA administers a federal CWA program, it should consult with the Services on individual permits that may affect endangered species and obtain incidental take statements, provided that the permits minimize harmful effects on aquatic species. Incidental take statements also extend protection from section 9 take liability to permittees.

Section 10 of the ESA authorizes nonfederal parties to apply for incidental take permits.(111) To obtain a permit under section 10(a), an applicant must include a habitat conservation plan (HCP) that identifies 1) impacts likely to result from the taking; 2) measures to monitor, minimize, and mitigate such impacts; 3) available funding to implement these measures; 4) alternative actions to the taking; and 5) reasons why the applicant is not adopting the proposed alternatives and other measures as the Secretary may require.(112) After opportunity for public comment, the Secretary may issue an incidental take permit if 1) he determines that the proposed taking of an endangered species will be incidental to an otherwise lawful activity; 2) the permit applicant will, "to the maximum extent practicable," minimize and mitigate the effects of the taking; 3) the applicant has ensured adequate funding for implementation of the HCP; and 4) the taking of species "will not appreciably reduce the likelihood of the survival and recovery of the species in the wild."(113)

Under state-authorized NPDES permit programs, an individual permit holder cannot obtain a section 7 incidental take statement, because there is no federal action triggering an ESA consultation. Instead, each permit holder must individually apply for an incidental take permit under section 10 and submit an HCP, a time-consuming and expensive process,(114) even if the permittee had complied with CWA requirements when obtaining the discharge permit. In other words, unlike federally issued CWA discharge permits, a state-issued CWA permit is not a shield to an ESA take.

C. The Intersection of the CWA and the ESA

To adequately address the protection of threatened and endangered species, the CWA and the ESA must work together more effectively. The current statutory framework of these environmental statutes, however, provides only limited overlap given the prominent role of states under the Clean Water Act. In 1973 Congress never addressed whether ESA procedures apply to state-authorized CWA programs.(115) With this congressional silence as a backdrop, EPA has declared that its oversight authority of state-issued CWA permits is not a federal action as contemplated by the ESA and therefore does not trigger the ESA's requirements.(116) Under this interpretation, there is no federal action after EPA approves a state permit program(117) because state CWA programs function "in lieu of" the federal program.(118) EPA, however, does interpret section 7 to apply when 1) it initially approves a state NPDES permit program(119) or 2) when it triennially reviews state water quality standards under section 303,(120) because these approvals are "federal actions" requiring discretion under section 7(a)(2) of the ESA.(121) Section 7 consultation with the Services could establish legally binding water quality standards to protect fish and wildlife. State NPDES permits, in turn, would have to comply with these state water quality standards.(122)

Relying on water quality standards, however, raises important questions about the capability of water quality criteria to support listed species. First, water quality criteria and standards may not necessarily consider all the cumulative effects of pollution if a state has not designated the use of a particular water body for the protection of threatened or endangered species.(123) Second, even if a state has established the protection of species as a designated use, the water quality criteria may not adequately address all adverse effects on the water quality, such as sedimentation.(124) Finally, there is real concern that agencies would not effectively implement and administer new protective standards given the historical lack of agency enforcement of water quality standards on both the state and federal levels.(125) One recent national study, for example, indicated that approximately thirty percent of all assessed river miles are in nonattainment of fully designated water quality standards.(126) Washington and Oregon both currently violate their water quality standards for temperature in the lower Snake River.(127)

While water quality standards may not produce immediate results in controlling point source discharges, ESA consultations on these standards have the potential to fundamentally change NPDES permit requirements and nonpoint source pollution. If taken seriously, these consultations could compel states and EPA to establish biologically sensitive criteria that protect endangered and threatened species. Moreover, they could lead to more TMDLs and other controls to manage and account for the effects of nonpoint source pollution--potentially the biggest water quality threat to listed species in the West.(128)

III. EPA's EFFORTS TO INTEGRATE ENDANGERED SPECIES PROTECTIONS INTO STATE CWA PROGRAMS

With limited means to apply ESA consultation procedures to state CWA programs(129) and growing concern about ESA liability for states and individual permittees,(130) EPA, NMFS, and FWS have spent nearly a decade developing an interagency memorandum of agreement to protect endangered species upon state assumption of CWA programs. An initial draft MOA focused on addressing endangered species concerns in water quality standards on a national level.(131) In the subsequent 1997 and 1999 draft MOAs, the agencies expanded their programmatic reach, citing CWA authority to establish federal fish and wildlife agency review of state NPDES permits.(132) This Part reviews each proposed MOA, revealing how the agencies intend to incorporate endangered species protection into state-administered CWA programs.

A. The 1992 Draft MOA Between EPA and the Services

In 1992 EPA, in conjunction with FWS and NMFS, developed national coordination procedures to protect endangered species upon state assumption of CWA programs. Initially, these federal agencies focused on addressing endangered species concerns in water quality standards.(133) This effort was largely prompted by a lawsuit alleging that the Alabama Department of Environmental Management had violated the ESA by failing to consult with FWS on its water quality standards.(134) In a memorandum of agreement (the 1992 Draft MOA) signed on July 27, 1992, EPA agreed to conduct a national section 7 consultation with the Services for existing national water quality criteria under section 304(a) to ensure that aquatic life criteria for listed toxins adequately protect endangered and threatened species.(135) This consultation on national water quality criteria would also allow EPA to avoid conducting individual ESA consultations when reviewing state water quality standards that provide identical or more stringent aquatic life criteria than EPA's recommended section 304(a) criteria.(136) However, if the state water quality standard was less stringent than EPA's section 304(a) aquatic life criteria, or if the state set designated uses that failed to provide for the protection and propagation of fish and shellfish, EPA would initiate a separate ESA consultation under its triennial CWA review authority.(137) The 1992 Draft MOA also would establish procedures "to insure that the Services [were] integrated early into EPA's oversight of the states' standards adoption process so that threatened and endangered species concerns [could] be addressed in the most efficient manner possible."(138) Interestingly, while this agreement did not impose consultation obligations on states, it did identify the importance of state water quality standards as an enforceable requirement of all NPDES permits.(139) One article correctly predicted that this MOA would usher in a "practice of initiating section 7 consultation with FWS whenever EPA conduct[ed] future triennial reviews of any state's water quality standards."(140) It also suggested that the agencies would apply similar consultation procedures to NPDES permits even though they were "clearly not required by the ESA."(141)

B. The 1997 Draft MOA Between EPA and the Services

Over the next five years, EPA and the Services attempted to develop more comprehensive coordination procedures to protect endangered and threatened aquatic species during and after state assumption of CWA programs. In July 1997 the agencies proposed a new MOA establishing a national framework for effective .species protection under all CWA programs, including both state water quality standards and NPDES permit programs subject to EPA oversight (1997 Draft MOA).(142) The primary purpose of this draft MOA was to ensure "a uniform level of protection for species regardless of their location, and provide greater certainty for States and Tribes considering assuming a permitting program in the future."(143)

Under the 1997 Draft MOA, the agencies proposed to engage in a "national programmatic consultation" examining EPA's actions when 1) reviewing state water quality standards and 2) approving state or tribal permit programs.(144) This broad national consultation, in turn, would improve existing procedures under the water quality standards program, clarifying how and when EPA must initiate separate section 7 consultations on state WQSs in order to protect listed species. The consultation would also establish coordination procedures between EPA, the Services, and the states under state permit programs to ensure that state-issued discharges adequately protected endangered and threatened species.(145) Most importantly, these procedures were designed to improve cooperation between EPA and the Services and to enhance overall species protection.(146)

To integrate endangered species protection into the water quality standards programs, the 1997 Draft MOA first proposed a national EPA rulemaking to amend its national water quality standards and its NPDES permit regulations so that these CWA programs would ensure the protection of federally listed species.(147) The amended WQS regulation, for example, would require EPA to ensure that all water quality standards were not "likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of designated critical habitat."(148) The proposed rule would also require state policies authorizing variances and mixing zones to avoid jeopardy, as well as the adoption of site-specific water quality criteria protective of listed species.(149) The 1997 Draft MOA also promised that EPA and the Services would work together to develop and review CWA aquatic life criteria.(150) These recommended criteria would establish standards protective of endangered species that states could adopt.(151) Last and most important, the agreement promised that EPA would institute section 7 consultation procedures when approving new or revised state WQSs.(152) The primary goal of the agreement was to ensure early involvement before and during state development of the standards. To this end, the agreement provided that EPA and the Services would meet to discuss the scope of upcoming state triennial reviews.(153) Where existing standards were not protective of listed species, EPA and the Services would work with the state to obtain revisions to the standards during this triennial review process.(154) The Services' involvement ultimately would help produce water quality standards that protect aquatic species likely to be harmed by permit discharges. Moreover, the repetitious and iterative nature of triennial consultations would allow the Services, EPA, and the states to periodically redetermine the criteria necessary to protect listed or at-risk species.

In the absence of a similar federal nexus to compel ESA consultations on individual state-issued CWA permits, the 1997 Draft MOA identified EPA's approval authority of entire state NPDES programs as the trigger for a programmatic consultation under section 7 of the ESA.(155) Under the agreement, EPA and the Services would conduct a national section 7 consultation to determine whether the proposed coordination procedures (described below) for new and existing state permit programs(156) would adequately address species protection.(157) The MOA envisioned a triangular coordination procedure between EPA, the Services, and the states, with EPA acting as the ultimate CWA authority to ensure that state-issued permits address endangered species' needs.(158) The MOA specified that EPA would ensure that states submit all individual permit applications to FWS and NMFS.(159) The Services would then provide the states with a list of aquatic federally listed species and any designated critical habitat in the states.(160) If the Services or EPA believed that an individual permit was likely to have an adverse impact on a listed species, they would contact the state agency to discuss concerns within ten days of receiving the proposed permit.(161) If the state failed to address species concerns, the Services would contact EPA "not later than five working days prior to the close of the public comment period on the State's or Tribe's draft permit or notice of permit application."(162) EPA would then coordinate with the Services and the state to ensure that the permit complied with CWA requirements, including WQSs, and would discuss "appropriate measures protective of Federally listed species and critical habitat."(163) If a state permit would be likely to have an adverse impact on listed species or critical habitat, EPA could make a formal objection under its CWA authority.(164) In cases where the adverse effects were "minor," the associated take with the individual permit would "be authorized by the incidental take statement accompanying the national programmatic Biological Opinion."(165)

If a state had previously issued a permit that the Services later identified as possibly having an adverse effect on listed aquatic species and that the national incidental take statement did not authorize, the Services would contact the state to remedy the situation.(166) At this stage, however, EPA would have no authority to demand changes regarding species protection to an already issued state or tribal NPDES, sewage sludge, or wetland section 404 permit because of the permit shield.(167)

The Services also drafted an accompanying draft programmatic biological opinion to authorize the 1997 Draft MOA's proposed national consultation.(168) Provided that EPA complied with the draft MOA's coordination procedures with the Services, the biological opinion would authorize the incidental take of species whenever EPA reviewed state-issued permits or state water quality standards.(169) The national incidental take statement, in turn, would provide coverage to dischargers, states, and tribes.(170) However, because the Services could not determine the level of take with numerical precision, they assigned an "unquantified" level of take to this proposed action.(171) Conversely, while the acceptable level of take was classified as minor,(172) neither the draft biological opinion nor the draft MOA itself provided any indication as to what type of point source discharge would constitute a minor impact on aquatic species.(173) Moreover, the explanation of exactly how the Services would anticipate the level of take on a national scale was nebulous at best.(174)

C. The 1999 Draft MOA Between EPA and the Services

After the circulation of the 1997 Draft MOA, the agencies failed to formally adopt the coordination procedures.(175) In spite of this gridlock, EPA test-piloted the coordination procedures as part of its three most recent federal authorizations of state NPDES permit programs.(176) In Louisiana and Oklahoma, EPA faced judicial challenges from industry stakeholders who argued that the agency had exceeded its statutory authority by instituting federal fish and wildlife agency review as part of the state program approval.(177) In American Forest and Paper Ass'n v. Environmental Protection Agency (American Forest & Paper I),(178) the Fifth Circuit concluded that EPA could not modify the "non-discretionary" list of enumerated criteria to include review of species when approving a state permit program under the CWA(179) because this list of criteria did not mention protection of endangered species and the ESA conferred no additional substantive powers beyond the underlying statutory authority granted to federal agencies.(180) The immediate effect of this decision was to vacate the portion of the Louisiana role that imposed the federal fish and wildlife review requirement and authorized EPA to veto any permit to which FWS or NMFS objected.(181) In the second judicial challenge, initiated again by the American Forest and Paper Association, the Tenth Circuit dismissed the case for lack of constitutional standing and ripeness without ever reaching the merits of the Association's challenge.(182) With no clear resolution among these circuits, EPA addressed species protection in its most recent assumption decision, in which it authorized the Texas program, by emphasizing its CWA authority.(183) Specifically, EPA could review state-issued permits to ensure that they complied with state water quality standards protected of listed species.(184)

On January 15, 1999, EPA and the Services jointly published a revised draft of the national coordination program for general public comment in the Federal Register (1999 Draft MOA).(185) Its purpose was to clarify the intent of the interagency agreement,(186) to address comments received from major stakeholders on the previous 1997 draft,(187) and to respond to recent judicial criticism.(188) In the preamble, the agencies expressed the need to integrate the goals of the CWA and ESA on a program-wide level, thereby ensuring "an appropriate level of protection for listed species and greater regulatory predictability for States, Tribes, and the public."(189) The interagency procedures would serve agency goals by achieving greater efficiency and avoiding protracted consultations, such as separate state WQS consultations that take an average of eighteen months each.(190) In advancing this program, EPA dismissed the significance of the outcome in the Fifth Circuit case from Louisiana, asserting that the agency "believe[d] that this case was wrongly decided" because the court ignored the agency's discretion in reviewing an entire state permit program under the CWA.(191) Moreover, EPA would retain final authority in evaluating whether a proposed discharge would harm a listed species pursuant to its mandate under the CWA and not the ESA.(192)

Although the 1999 Draft MOA continued to focus on incorporating species protection into the water quality standards and NPDES permit programs, it presented a number of important changes from the 1997 Draft MOA.(193) The agreement, for example, attempted to streamline individual consultations on state water quality standards by simply having states adopt federal aquatic life criteria already approved by the Services in the MOA's national consultation.(194) Moreover, the 1999 Draft MOA clarified the existing authority under the CWA to implement the proposed interagency procedures under state permit programs.(195) Overall, in light of the cooperative federalist nature of the CWA, the 1999 Draft MOA represented an important effort to integrate and further the goal of sustainable aquatic ecosystems.

Instead of amending both the WQS and NPDES permitting regulations, the 1999 Draft MOA limited its proposed national rulemaking on species protection to the water quality standards regulations.(196) EPA asserted that the rule will essentially "codify existing protection for endangered and threatened species under the CWA."(197) In EPA's judgment, water of such degraded quality "that it will likely cause jeopardy to the continued existence of a species would generally not be consistent with protections provided by the Clean Water Act."(198) More significantly, the 1999 Draft MOA proposed to conduct a national section 7 consultation on EPA's recommended aquatic life criteria to determine the effect of the criteria on listed species and designated habitat.(199) States, in turn, could adopt EPA's water quality criteria as part of their water quality standards, thereby avoiding a separate consultation on such adopted criteria. The agencies claimed that, in contrast to case-by-case state consultations on water quality standards, a national consultation on aquatic life criteria would promote greater efficiency and ensure agency consistency in assessing the impacts of pollutants on aquatic endangered species and in developing protective standards.(200) EPA pointed to recent success stories in which either the agency or the state included aquatic life criteria in WQSs based on EPA's section 7 consultations and the accompanying biological opinions.(201) The MOA's national consultation would provide incidental take coverage for any state water quality criteria that are at least as stringent as EPA's recommended section 304(a) criteria.(202)

Under the state permit program,(203) the 1999 Draft MOA justified all coordination procedures with the Services under existing Clean Water Act authority.(204) This statutory emphasis appeared to respond to the Fifth Circuit's criticisms that EPA was limited to working within its existing CWA authority to address the needs of aquatic species.(205) For example, EPA explained that it would approve a state permit program based only on the criteria enumerated in section 402(b) of the CWA, and that it would not place any other conditions on agency approval to protect endangered species.(206) As part of its oversight authority, however, EPA would object to individual state-issued permits likely to jeopardize listed species on the grounds that such permits are "outside the guidelines and requirements" of section 402(d)(2) of the CWA.(207) Further, in contrast to the 1997 Draft MOA, which required states to submit permit applications to the Services, the 1999 coordination procedures clearly identified existing CWA regulations that require states to provide notice and copies of individual draft permits to the Services.(208) By grounding the procedures in current regulatory requirements, EPA thus bolstered its argument that these interagency efforts to protect ESA-listed species in CWA programs do not impose any obligations not already required by the CWA.(209)

Last and most important, the 1999 Draft MOA referred back to the 1992 draft interagency agreement and identified water quality standards as the key to ensuring protection of endangered and threatened species.(210) The document also reiterated similar portions of the 1997 Draft MOA, identifying the crucial link between state permits and water quality standards:

   Water quality criteria and State or Tribal water quality standards
   establish levels of pollutants from all sources, and so would account for
   all such effects insofar as water quality is concerned. Since NPDES permits
   are established to achieve water quality standards, they will account for
   point source effects insofar as water quality is concerned.(211)

The 1999 Draft MOA went further by explaining that water quality standards enable EPA to consider the effect of permit discharges on endangered species under its oversight authority.(212) At the same time, however, the Services have openly admitted in recent biological opinions that many state water quality standards currently cannot afford proper protection to endangered and threatened species.(213) In the biological opinion approving Texas's state permit program, for instance, FWS wrote that "research indicates that species in or near contaminated sediments may be adversely affected even if water-quality criteria are not exceeded."(214) Moreover, the current Texas state WQS for temperature cannot "adequately protect reproduction and survival of the fountain darter."(215) Many other current state water quality standards also may not be adequate to protect listed species.

IV. EVALUATING EPA'S CURRENT APPROACH TO SPECIES PROTECTION

The 1999 Draft MOA stated that "EPA and the Services believe that this approach ensures that any issues regarding listed species will be adequately addressed."(216) It may be too early to determine the full extent of EPA's approach to integrating species protections into state CWA programs, but an assessment of the effectiveness of EPA's efforts thus far is possible. Successful implementation of EPA's programs will require state permit programs to rely on water quality standards protective of listed species and consultations of water quality standards that demand water quality goals for aquatic viability. With these overarching objectives in mind, this Part examines the 1999 Draft MOA, commending the agencies' efforts to achieve species protection via water quality standards, while questioning the legality and biological integrity of conducting a national section 7 consultation. It then examines the potential for water quality standards to meet the formidable burden of advancing endangered species protection in both the approval of Texas's permit program and the triennial review of Oregon's water quality standards.

A. Evaluating the 1999 Draft MOA

A review of the 1999 Draft MOA clearly indicates a concerted and innovative effort to integrate species protection into state-administered water quality programs. In essence, the ESA is driving water quality standards to play a key role in protecting the needs of endangered and threatened species under the CWA. Accordingly, because EPA's triennial review of state WQSs triggers section 7 consultation, states would promulgate water quality standards that create viable habitats for listed species. EPA, in turn, would object to state-authorized permits that violate WQSs under its CWA oversight authority.(217) In other words, such a permit would be "outside the guidelines and requirements" of the CWA.(218) Such efforts to work within the existing CWA regulatory scheme should prevent judicial reversals like that in the Fifth Circuit.(219)

Despite the 1999 Draft MOA's commitment to species protection, it faces some formidable challenges. First and foremost, it is unclear how the draft MOA's national formal section 7 consultation on water quality criteria and standards and its coordination procedures will satisfy the ESA's biological opinion and incidental take statement requirements.(220) The 1999 Draft MOA asserts that the Services' accompanying biological opinion will authorize the incidental take associated with state-issued NPDES permits, which incorporate national state water quality criteria, and provide coverage to dischargers, states, and tribes so long as the coordination procedures are followed.(221) The biological opinion also will authorize incidental take of any state water quality criteria consistent with or more stringent than the recommended national criteria.(222) Given the scope of this national biological opinion, however, the 1999 Draft MOA admits that it cannot accurately quantify the level of "take"(223) or consistently identify the instances of adverse effects:

   The consultation will be conducted on a national basis, and therefore, will
   not be water-body specific. In addition, given the numbers of species
   involved in the consultation, the effects on species will be evaluated to
   the maximum extent possible based on groupings of species believed to be
   affected in a similar manner.(224)

As currently envisioned, this programmatic incidental take statement would violate section 7 procedure, s that require biological opinions to 1) specify the effect of incidental take on endangered or threatened species,(225) 2) establish monitoring requirements and reasonable and prudent measures to minimize incidental take,(226) and 3) create terms and conditions that identify a numeric take level if possible or at least a descriptive one.(227) Without an evaluation of site-specific information and effects on particular listed species, the draft MOA inadequately provides for species survival and recovery. Moreover, given the inherent ambiguity and complexity of programmatic consultation, it is less likely that EPA will reinitiate consultation under the ESA regulations, which trigger consultation once "new information reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered."(228)

Second, as a federal agency, EPA has affirmative duties to conserve listed species under ESA section 7(a)(1)(229) and to consult with the Services on how the agency's actions might affect each of the listed species;(230) EPA cannot "just undertake a generalized consultation"(231) as the 1999 Draft MOA proposes. In order to develop species-specific conservation programs and comply with section 7(a)(1) obligations, EPA should evaluate listed species by water body and ecosystem for both individual water quality standards and permiting actions. Additionally, in assessing species believed to be similarly affected, the Services would contravene the ESA's requirement to use the best available scientific information.(232) Thus, in an attempt to streamline the ESA process

with a sweeping incidental take statement covering individual state-issued permits and water quality standards, the 1999 Draft MOA fails to satisfy the ESA. Before the agencies issue the final MOA, they should reconsider whether a national consultation is actually capable of providing the level of protection required under the ESA, and if so, they should establish clear standards in developing a national consultation.

Third, even though EPA has discretion to decide whether point source discharges will adversely affect listed aquatic species,(233) the agency is constrained by the CWA, which provides no mechanism to require changes once a state has already issued an Individual permit that is adversely affecting federally listed species.(234) In such an event, the 1999 Draft MOA proposes that EPA and the Services request that the state reopen the permit.(235) This option is unsatisfactory, given that one of the purposes behind the coordination procedures is to avoid potential jeopardy problems for state-issued permits in the first place.(236) Moreover, the Services could potentially sue the permittee under ESA section 9 for the resulting take, because the 1999 Draft MOA and biological opinion would authorize incidental take of species only where EPA had properly followed the coordination procedures with the Services.(237)

Fourth, the coordination procedures for the permitting program may not provide sufficient time for the Services to adequately compile information and make an accurate determination about whether a state-authorized discharge will jeopardize aquatic species in the relevant waters.(238) The 1999 Draft MOA requires the Services to express "concerns" to the appropriate state agency, "preferably within ten days of receipt" of a proposed permit application.(239) If the Services fail to initially address this concern with the state, the agencies' last opportunity is to contact EPA directly not later than five days prior to the dose of the permit application's public comment period.(240) Given the broad scope of the Services' duties, a ten-day period followed by another fifty-five-day period may be too short of a time frame. In addition, EPA can choose to ignore the Services' jeopardy concern under the coordination procedures more readily than it could a jeopardy determination in a biological opinion issued under formal ESA consultation procedures.(241) Because biological opinions issued pursuant to the ESA receive considerable deference from reviewing courts,(242) EPA can rarely ignore an ESA biological opinion without running a significant risk of violating section 7.(243) In contrast, under the proposed agency scheme, a reviewing court is likely to defer to EPA's judgment given that there are CWA procedures and a sparse biological record for the court to review.(244) To remedy these problems, the MOA should extend the period for the Services to review potentially harmful individual permits, thereby allowing the Services to develop a more precise and detailed record.

Fifth, from the perspective of the permit holder, the agency coordination procedures yield mixed results. Permit holders may feel a certain level of comfort with the agencies' national incidental take statement, because it seems to shield individual permittees from the taking prohibition of ESA section 9. At the same time, some permittees may oppose interagency procedures, claiming that the additional mandatory review will lengthen permitting delays, increase costs, and generate burdensome permit provisions.(245) If EPA, for example, decides to object to a proposed state permit because of endangered species concerns, the applicant might have to obtain a separate incidental take permit under section 10--a time-consuming and expensive process.(246) In addition, some industry representatives have attacked the proposed national rulemaking on WQSs as imposing "new" water quality requirements to protect listed species.(247) This rule, they contend, will result in the banning of mixing zones(248) in certain locations, thereby preventing dischargers from temporarily exceeding water quality standards at the end of the pipe.(249)

Finally, some environmentalists may view these interagency procedures as better than the status quo of existing state approved programs.(250) In contrast to traditional oversight authority between EPA and the states, the 1999 Draft MOA would create federal fish and wildlife review of state-issued NPDES permits and water quality standards protective of listed species.(251) The Services' participation in reviewing state NPDES permits and WQSs theoretically should reduce the likelihood of harm to listed species in state waters. Some commentators, however, argue that EPA could easily call on its oversight authority to trigger traditional section 7 formal consultation procedures when reviewing new and renewing old state-issued permits.(252) Arguably, EPA has discretion comparable to its state approval authority, which would appear to satisfy the discretionary element of the ESA regulations.(253) The legal case for subjecting individual state-issued NPDES permits to ESA consultations may be weak, however, because courts have held that EPA's authority to veto state permits does not involve a federal action.(254)

B. Approval of the Texas NPDES Permit Program

On September 14, 1998, only thirteen days after the Tenth Circuit's opinion dismissing the challenge to Oklahoma's state program, EPA approved Texas's application for the administration of the NPDES permit program by the Texas Natural Resource Conservation Commission (TNRCC).(255) The MOA between EPA and TNRCC established virtually identical consultation procedures as established by the agreements in Louisiana and Oklahoma, providing opportunities for 1) the Services to comment on state permits,(256) 2) the Services to contact EPA if their comments were not adequately addressed by the state,(257) and 3) EPA to object to state NPDES permits if they fail to meet the requirements of the CWA.(258) Given a negative precedent in the Fifth Circuit, however, EPA went to great lengths in its rule approving the Texas program and its MOA with TNRCC to distinguish it from both its Louisiana and Oklahoma approvals.(259) This distinction was crucial because Texas is in the same circuit as Louisiana. The EPA rule explained that the agency would "only object to a State permit where doing so would be within its authority under the CWA."(260) EPA also directly addressed the Fifth Circuit's holding that EPA had exceeded its statutory authority by conditioning state approval on state compliance with the ESA. The agency emphatically pronounced that it had "not `conditioned' its approval of Texas's application on any factors related to endangered species protection."(261) Instead the agency claimed that it had approved Texas's program "based solely on the criteria contained in section 402(b) of the CWA and implementing regulations."(262)

The most compelling agency argument in support of its CWA authority involved enforcing state water quality standards protective of listed species as part of state-issued NPDES permits.(263) In contrast to the Louisiana and Oklahoma MOAs, the Texas MOA directed the state to "address effects on endangered species and historic properties through setting and enforcing water quality standards."(264) EPA relied on section 301(b)(1)(C) of the CWA(265) and its implementing regulations, which require NPDES permits to comply with more stringent limitations, including state WQSs, than mere technology-based effluent limitations.(266) As part of its CWA oversight authority, EPA thus could object to a state-issued permit if the discharge failed to meet state WQSs designed to protect listed species. In Texas's case, the state WQSs also specifically included a narrative standard provision protective of aquatic species: "Water in the state shall be maintained to preclude adverse toxic effects on aquatic and terrestrial wildlife ... resulting from contact, consumption of aquatic organisms, consumption of water, or any combination of the three."(267) Under this scheme, EPA clearly articulated the important connection between water quality standards and NPDES permits and revealed how these two interrelated CWA mechanisms could work in tandem to serve the needs of listed aquatic species.(268)

As part of a formal section 7 consultation on Texas's assumption, FWS concluded in its biological opinion that the triangular coordination procedures involving the Services were adequate to ensure that state-issued permits were not likely to jeopardize listed species and would minimize incidental take.(269) Accordingly, FWS issued a sweeping incidental take statement as part of federal authorization of the Texas NPDES (TPDES) program.(270) This incidental take statement authorized "minor" takes associated with TPDES permits, unless the Services submit a written concern to EPA about potential adverse effects a proposed TPDES permit might have on a federally listed species or critical habitat.(271) Under this scheme, the burden rested on the Services to identify and raise a jeopardy concern in a proposed TPDES permit within specified time limits.(272) Otherwise, all state-issued permittees and state authorities were exempt from liability under the section 9 taking prohibition of the ESA.

Texas's biological opinion raises similar problems to the 1997 and 1999 Draft MOAs. For example, while FWS loosely defined a "minor" take, it avoided numerically identifying the extent of the take within the waters in the State of Texas.(273) Instead, FWS acknowledged the difficulty of quantifying the amount of take in the entire state given that the take associated with "the future issuance of TPDES discharges for as yet unknown discharges potentially affect[s] all geographic areas."(274) Interestingly, FWS indicated some reservation about relying on current Texas WQSs in state-issued permits as a means of protecting endangered species.(275) The Service stated that "implementation of those [Texas Surface Water Quality] standards through permitting has not been (nor were they intended to be completely) protective of individuals of a particular species."(276) Specifically, FWS anticipated take in the form of harm in mixing zones and downstream of permittees' outfalls.(277) In fact, the agency conceded that "take in the form of harm or harassment may be occurring presently as a result of EPA's administration of the NPDES program," thus revealing an urgent need for immediate consultation on this federal agency action.(278) Most troubling of all was the fact that this approved state program rested on water quality standards for which EPA had yet to complete a section 7 consultation.(279)

The biological opinion for Texas reveals that there will be considerable lag time between approval of the state permit program and actual protection of listed species under the CWA authority because 1) many current water quality standards--the baseline for NPDES permits--are harmful to threatened and endangered species, and 2) significant changes under the permitting program will be incremental, given that a state cannot impose new effluent limitations during the permit's five-year lifespan. To address these pragmatic considerations, EPA should expedite consultation on state water quality standards and authorize incidental take coverage to the states and individual permittees pending approval of water quality standards that are in fact protective of threatened and endangered aquatic species.

C. Section 7 Consultation on Oregon's Water Quality Standards

In July 1999, three and one-half years after the Oregon Department of Environmental Quality (ODEQ) submitted its water quality standards to EPA for review, NMFS finally issued a biological opinion.(280) This represented the first time in the region that a section 7 consultation examined a state's water quality standards.(281) The purpose of the biological opinion was to evaluate whether EPA's proposed approval of Oregon's water quality standards for dissolved oxygen, temperature, and hydrogen ion concentration (pH) standards would likely jeopardize the continued existence of any of the proposed and listed salmonid species.(282)

In 1996, when consulting on the triennial review of Oregon's standards, EPA determined that ODEQ had failed to implement and enforce the existing temperature standards and expressed concern that the standards were not adequate to protect listed salmonid species,(283) The biological assessment, in fact, determined that salmon were "likely to be adversely affect[ed]" by the standards, which "pose[d] a risk to their viability."(284) EPA nevertheless proposed to condition its approval of Oregon's standards on several "conservation measures"--including a regional review of temperature standards over the next two years--that the state would consider adopting within the next triennial standards review.(285)

The belated NMFS biological opinion on Oregon's failing water quality standards proved a great disappointment. Analyzing the state's dissolved oxygen standards, NMFS concluded that the cool water standards were "likely to adversely affect" threatened salmon species in Oregon and Washington because the state had established many standards based on weekly rather than daily averages.(286) As for temperature standards, NMFS agreed with EPA's determination that a sixty-four degrees Farenheit temperature was "likely to cause lethal and sublethal adverse effects," including increased mortality and disease for chinook.(287) Moreover, NMFS determined that the spawning temperature criterion of fifty-five degrees Farenheit was inadequate given the state's inaccurate spawning dates table.(288) Nevertheless, NMFS issued a conditional no jeopardy opinion, even though the agency concluded that "[a]ny further degradation of these conditions would significantly reduce the likelihood of survival and recovery of these species due to the amount of risk that salmon face under the current environmental baseline."(289) These conditions included EPA's earlier "conservation measures," such as a regional review of temperature standards over the next two years and adoption by Oregon of these or similar standards.(290) To satisfy section 7(a)(1)'s duty to conserve, the biological opinion provided several conservation recommendations: several research studies to analyze historic water temperatures in ecoregions of the state; models of attainable stream temperatures based on changes in vegetation, flows, and restored hydrologic connections to groundwater and floodplains; and fish studies on how sublethal temperature levels affect salmon reproduction and distribution patterns.(291) In addition, NMFS agreed to reassess the conservation measures implemented by EPA and Oregon every six months to determine if consultation must be reinitiated.(292)

Despite these promised conservation and mitigation efforts, this biological opinion concludes that Oregon's existing water quality standards for dissolved oxygen and temperature do not protect all threatened and endangered species.(293) The regional review of temperature standards, for example, fails to adequately ensure that temperature standards will be more protective than the current standard because of the extended timeframe between the review and actual adoption of the new or equivalent standards by the State of Oregon.(294) This waiting period to implement such mitigation measures clearly violates the ESA's mandate, as it postpones confronting the adverse effects of water quality standards on listed species. Some commentators further lament that "[t]he likelihood that the state, or EPA subsequently, will take actions consistent with their own science is remote" because of increased political pressures from industry.(295) Moreover, the biological opinion on Oregon WQSs ignores one of the requirements of the consultation, which demands efforts "necessary for the listed species to survive and recover to naturally reproducing population levels" so that "protection under the ESA would become unnecessary."(296) In short, Oregon's biological opinion and recommendations fail to achieve the purpose of section 7 consultation--securing immediate protection for species facing extinction.

V. CONCLUSION

Recognizing the vital connection between species and their habitats, the ESA calls for "a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved."(297) To meet this objective of ecosystem conservation, as well as the CWA's fishable water quality goal, the ESA and CWA must function together so that water quality is capable of protecting listed species. In an attempt to ensure heightened species protection and provide greater assurance against liability to state authorities and their respective permittees under the CWA, EPA proposes to institutionalize section 7 consultations for water quality standards and to develop federal fish and wildlife review of state permit programs. This effort represents an important shift in agency thinking, viewing water quality standards as the key to trigger endangered species protection in state-administered CWA programs.

Thus far, EPA has faced two judicial challenges questioning the scope of the agency's authority to mandate these new procedures under permit programs.(298) With only one case decided on its merits,(299) the new agency framework has not been fully tested.

More importantly, though, it is unclear when water quality standards will actually protect species and, in turn, serve as the environmental baseline for state-issued permits and nonpoint source pollution. Currently, Texas's permit program, which incorporates the draft MOA's coordination procedures, is enforcing water quality standards that harm listed species. While section 7 consultations on water quality standards could fundamentally alter state CWA programs, consultations like Oregon's are far from revitalizing the standards, thus falling short of the level of protection required to return endangered species to the point where they no longer need this crucial protection. At the very least, though, Oregon's water quality standards will trigger another ESA consultation every three years, compelling EPA, the Services, and the state to reassess and determine how they can achieve fishable habitat. In the end, if water quality standards are to be the mechanism to protect listed species under the CWA and complement the goals of the ESA, as EPA and the Services advance, consultation on water quality standards must afford actual protection for listed species, and state permit programs must implement these protective water quality standards.

(1) For a complete list of ESA Federal Register Notices related to Pacific Salmon (including chinook, coho, sockeye, chum, and pink salmon, as well as steelhead and coastal cutthroat trout), see Protected Resources Div., National Marine Fisheries Serv., West Coast Salmon and the Endangered Species Act: Federal Register Notices (last modified Mar. 9, 2000) <http://www.nwr.noaa.gov/1salmon/salmesa/fedreg.htm>. See also Michael C. Blumm & Greg D. Corbin, Salmon and the Endangered Species Act: Lessons from the Columbia Basin, 74 WASH. L. REV. 519, 522 n.11 (1999) (noting that 23 salmon runs have been listed under the ESA).

(2) Endangered Species Act of 1973, 16 U.S.C. [subsections] 1531-1544 (1994).

(3) Endangered and Threatened Species: Threatened Status for Two ESUs of Steelhead in Washington, Oregon, and California, 63 Fed. Reg. 1334, 1334 (Mar. 19, 1998).

(4) See Mike Burton & Erik Sten, Editorial, It's Portland's Turn Now, Endangered Listing for Our Steelhead Means Urban Area Will Have to Adjust, THE OREGONIAN, June 22, 1998, at B9.

(5) Water Quality Program, Oregon Dept. of Envtl. Quality, Restoring Water Quality Throughout Oregon (last modified Oct. 1998) <http://waterquality.deq.state.or.us/wq/303dlist/303dFactSheet.htm>. Eighty-eight percent of Oregon's waters--10,569 of 11,900 miles--violated the state's temperature standards, creating inhospitable habitat for cold-water salmonid species. Nina Bell & Andy Hanson, Oregon's Salmon Standards, BIG RIVER NEWS (Northwest Water Law & Policy Project, Portland, Or.), Winter 1999/2000, at 5, 5.

(6) Federal Water Pollution Control Act, 33 U.S.C. [subsections] 1251-1387 (1994 & Supp. III 1997).

(7) Other factors contributing to the decline of salmonids include hydropower (considered the leading factor contributing to salmonid decline in the Columbia River Basin and the Pacific Northwest), mining, logging, urbanization, hatcheries, overharvest, disease, and predation. See NATIONAL MARINE FISHERIES SERV., FACTORS CONTRIBUTING TO THE DECLINE OF CHINOOK SALMON: AN ADDENDUM TO THE 1996 WEST COAST STEELHEAD FACTORS FOR DECLINE REPORT 8 (1998); NATIONAL MARINE FISHERIES SERV., FACTORS FOR DECLINE: A SUPPLEMENT TO THE NOTICE OF DETERMINATION FOR WEST COAST STEELHEAD UNDER THE ENDANGERED SPECIES ACT 6 (1996); Michael C. Blumm, The Amphibious Salmon: The Evolution of Ecosystem Management in the Columbia River Basin, 24 ECOLOGY L.Q. 65], 655-59 (1997); Michael C. Blumm et al., Saving Snake River Water and Salmon Simultaneously: The Biological, Economic, and Legal Case for Breaching the Lower Snake River Dams, Lowering John Day Reservoir, and Restoring Natural River Flows, 28 ENVTL. 997, 999-1000 (1999).

(8) See 33 U.S.C. [sections] 1251(a)(2) (1994 & Supp. III 1997).

(9) See Loggerhead Turtle v. Volusia County, 148 F.3d 1231, 1242 (11th Cir. 1998), cert. denied, 119 S. Ct 1488 (1999) (holding that the county's regulation of vehicular beach access and artificial beachfront lighting during turtle mating season could constitute a taking); Strahan v. Coxe, 127 F.3d 155, 163 (1st Cir. 1997), cert. denied, 525 U.S. 830, cert. denied, 525 U.S. 978 (1998) (holding Massachusetts officials liable for exacting a taking of endangered species by issuing licenses and permits authorizing gillnet and lobster pot fishing).

(10) Permittees must comply with the prohibition against taking contained in section 9 of the ESA 16 U.S.C. [sections] 1538 (1994); see also infra notes 104-07 and accompanying text.

(11) See 33 U.S.C. [subsections] 1314(i)(2), 1311(i)(1)(C), 1370 (1994).

(12) By contrast, when the Environmental Protection Agency (EPA) administers CWA programs federally, section 7 of the ESA requires EPA to consult with NMFS or the Fish and Wildlife Service (FWS) to ensure that federal permits authorizing point source discharges are "not likely to jeopardize the continued existence" of endangered or threatened aquatic species or adversely modify their critical habitat. 16 U.S.C. [sections] 1536(a)(2) (1994). Even though federal NPDES programs are "federal actions" triggering the ESA section 7 consultation requirement, the categorical distinction between federally administered and state-administered NPDES permit programs has not made a practical significance, because EPA has not yet engaged in a single individual consultation when issuing federal NPDES permits. EPA administers federal NPDES programs in Alaska, Arizona, Idaho, Maine, Massachusetts, New Hampshire, and New Mexico. See State Program Requirements; Approval of Application to Administer the National Pollutant Discharge Elimination System (NPDES); Texas, 63 Fed. Reg. 51,164, 51,199 (Sept. 24, 1998).

(13) PERKINS COIE LLP, LIABILITY OF STATE AGENCIES AND LOCAL GOVERNMENTS UNDER THE ENDANGERED SPECIES ACT: A WHITE PAPER 3 (1999).

(14) Currently, one-third of all plants and animals listed under the ESA live in aquatic environments. Henry B. Lacey, New Approach or Business as Usual: Protection of Aquatic Ecosystems Under the Clinton Administration's Westside Forests Plan, 10 J. ENVTL. L. & LITIG. 309, 310 n.5 (1995).

(15) Draft Memorandum of Agreement Between the Environmental Protection Agency, Fish and Wildlife Service, and National Marine Fisheries Service Regarding Enhanced Coordination Under the Clean Water Act and the Endangered Species Act; Notice, 64 Fed. Reg. 2742, 2742 (Jan. 15, 1999) [hereinafter 1999 Draft MOA].

(16) Id. at 2743.

(17) Id. at 2752-53.

(18) Id.

(19) The Secretary of the Interior, acting through FWS, is responsible for terrestrial and freshwater species, while the Secretary of Commerce, acting through NMFS, is responsible for marine species. They are hereinafter referred to as the Services or the expert agencies.

(20) See Oliver A. Houck, Clean Water Act and Related Programs, SB52 ALI-ABA 241, 244 (Feb. 12, 1997).

(21) 16 U.S.C. [sections] 1531 (1994).

(22) Id. [sections] 1531(c)(2).

(23) 33 U.S.C. [sections] 1251 (1994).

(24) Id. [sections] 1251(a)(2).

(25) See infra notes 123-27 and accompanying text

(26) 33 U.S.C. [sections] 1251 (1994 & Supp. III 1997).

(27) Id. [sections] 1251(a)(1)-(3). Congress subsequently extended these deadlines because of the enormous complexities involved in water pollution cleanup.

(28) Id. [sections] 1252(a).

(29) Id. [sections] 1251(a)(2).

(30) See id. [sections] 1311(g)(2)(C) ("[S]uch modification [for nonconventional pollutants] will not interfere with the attainment or maintenance of that water quality which shall assure ... the protection and propagation of a balanced population of shellfish, fish, and wildlife."); see also John W. Steiger, The Consultation Provision of Section 7(a)(2) of the Endangered Species Act and Its Application to Delegable Federal Programs, 21 ECOLOGY L.Q. 243, 265 n.115 (1994) ("Congress provided for fish and wildlife protection under the CWA through the establishment of effluent limitations and water quality standards imposed in each permit, not by the delegation and oversight process.").

(31) 33 U.S.C. [sections] 1313(c)(2)(A) (1994).

(32) See id. [sections] 1311(b)(1)(C); 40 C.F.R. [sections] 131.2 (1999).

(33) 33 U.S.C. [subsections] 1342, 1311 (1994); Michael P. Healy, Still Dirty After Twenty-Five Years: Water Quality Standard Enforcement and the Availability of Citizen Suits, 24 ECOLOGY L.Q. 393, 396-97 (1997) (describing the different roles of the permit and water quality standards programs); see also David S. Baron, Water Quality Standards for Rivers and Lakes: Emerging Issues, 27 ARIZ. ST. L.J. 559, 560 (1995) (noting that in more recent years, "[t]he inability of technology-based effluent limits to fully protect the nation's waters has led to renewed emphasis on water quality standards as regulatory tools").

(34) 33 U.S.C. [subsections] 1311, 1342 (1994). A point source is defined as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, [or] conduit ... from which pollutants are or may be discharged." Id. [sections] 1362(14).

(35) See infra notes 59-64 and accompanying text.

(36) The NPDES permit program was one of the first environmental regulatory schemes to employ a cooperative federalism partnership between the states and the federal government. See Steiger, supra note 30, at 258.

(37) EPA sets the technology-based standards, which the states, in turn, implement. The term "states" is intended to refer to states, territories, and tribes. 33 U.S.C. [sections] 1362(3), 1377(a) (1994).

(38) Id. [subsections] 1251(b), 1342(a)-(b); 40 C.F.R. [sections] 123.1(i) (1999).

(39) See Save the Bay, Inc. v. Environmental Protection Agency, 556 F.2d 1282, 1285 (5th Cir. 1977) (noting that "the federal agency retains review authority and responsibility over an approved state program").

(40) Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 859 F.2d 156, 173 (D.C. Cir. 1988). The same court also noted the inherent tension between Congress's quest to establish both uniformity of federal effluent standards to prevent the "industrial equivalent of forum shopping" and state autonomy in administering the permit program. Id. at 174 (quoting CONGRESSIONAL RESEARCH SERV., A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 356 (Library of Congress 1973)).

For other judicial opinions confirming the role of the states in administering the CWA, see Shell Oil Co. v. Train, 585 F.2d 408, 410 (9th Cir. 1978) ("Congress clearly intended that the states would eventually assume the major role in the operation of the NPDES program."), and Arkansas v. Oklahoma, 503 U.S. 91, 106-07 (1992) ("Congress struck a careful balance among competing policies and interests ... [and] protected certain sovereign interests of the States....").

(41) 33 U.S.C. [sections] 1342(b) (1994).

(42) Id. [sections] 1342(b)(1); 40 C.F.R. [sections] 123.25 (1999).

(43) 33 U.S.C. [sections] 1342(b)(1)-(9) (1994). As part of the state assumption process, EPA's regulations require a memorandum of agreement between the state and EPA that outlines policies, responsibilities, and procedures pursuant to the CWA. 40 C.F.R. [sections] 123.24(a) (1999).

(44) 33 U.S.C. [sections] 1342(3)-(4) (1994).

(45) 40 C.F.R. [sections] 124.10(c)(1)(iii), (iv) (1999).

(46) See American Forest & Paper Ass'n v. Environmental Protection Agency (American Forest & Paper I), 137 F.3d 291, 297 & 298 n.5 (5th Cir. 1998); see also infra notes 178-81 and accompanying text

(47) 33 U.S.C. [sections] 1311(b)(1)(C) (1994); see also id. [sections] 1342(b)(1)(A), stating that

   [t]he Administrator shall approve each permitted program unless he
   determines that adequate authority does not exist: (1) To issue permits
   which ... (A) apply, and insure compliance with, any applicable
   requirements of sections 1311 [effluent limitations], 1312 [water quality
   effluent limitations], 1316 [national standards of performance], 1317
   [toxic and pretreatment effluent standards], and 1343 [ocean discharge
   criteria] of this title.

(48) See infra note 57 and accompanying text

(49) For an example of a current state water quality standards that protects endangered species, see infra notes 70-72 and accompanying text

(50) 33 U.S.C. [sections] 1342(c) (1994); 40 C.F.R. [sections] 123.1(d)(1) (1999).

(51) 1999 Draft MOA, supra note 15, at 2743.

(52) 33 U.S.C. [sections] 1311(b)(1)-(3) (1994).

(53) These effluent limitations represent the best conventional technology for conventional pollutants, id. [sections] 1314(b)(4); the best available technology for nonconventional and toxic pollutants, id. [sections] 1311(b)(2)(A); 40 C.F.R. [sections] 122.44 (1999); secondary treatment limits for publicly owned treatment works, 33 U.S.C. [sections] 1314(d)(1) (1994); and new source performance standards for new sources, 40 C.F.R. [sections] 410.15 (1999).

(54) 33 U.S.C. [subsections] 1314(i)(2), 1311(b)(1)(C), 1370 (1994).

(55) Id. [sections] 1342(k). The Supreme Court stated that "[t]he purpose of [sections] 402(k) [the permit shield provision] seems to be to insulate permit holders from changes in various regulations during the period of a permit and to relieve them of having to litigate in an enforcement action the question whether their permits are sufficiently strict." E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 137 n.28 (1977).

(56) One commentator has argued that "[t]he permit shield provision supports a reading of the Act's text as barring citizen suits to enforce WQSs in cases where the relevant NPDES permit includes neither sufficiently stringent effluent limits nor WQS compliance as a permit condition." Healy, supra note 33, at 438.

(57) 33 U.S.C. [subsections] 1311(b)(1)(C), 1342(a) (1994); see also 40 C.F.R. [sections] 122.44(d) (1999).

(58) Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 915 F.2d 1314, 1317 (9th Cir. 1990). While the CWA enforcement provision makes no mention of water quality standards violations, the Ninth Circuit has held that state water quality standards are enforceable conditions of NPDES permits. Northwest Envtl. Advocates v. Portland, 56 F.3d 979, 985-86 (9th Cir. 1995).

(59) See 33 U.S.C. [sections] 1311(b) (1994); 40 C.F.R. [sections] 131.2 (1999).

(60) Criteria may be expressed as numeric concentration limits or in narrative form to protect the state's designated use. 40 C.F.R. [sections] 131.3(b) (1999).

(61) 33 U.S.C. [sections] 1313(c)(2)(B) (1994); 40 C.F.R. [sections] 130.7(b)(3) (1999).

(62) 33 U.S.C. [sections] 1313(d) (1994); 40 C.F.R [sections] 130.2(j) (1999).

(63) 40 C.F.R. [sections] 130.7(c) (1999); see also Dianne K. Conway, TMDL Litigation: So Now What?, 17 VA. ENVTL. L.J. 83, 90-93 (1997) (describing the TMDL process).

(64) See 40 C.F.R. [sections] 130.7(c) (1999).

(65) 33 U.S.C. [sections] 1313(c)(2)(A) (1994); 40 C.F.R. [sections] 131.2 (1999). "`Serve the purposes of the Act' (as defined in sections 101(a)(2) and 303(c) of the Act) means that water quality standards should, wherever attainable, provide water quality for the protection and propagation of fish, shellfish and wildlife...." Id.

(66) 33 U.S.C. [sections] 1313(c)(2)(A) (1994); see also 40 C.F.R. [sections] 131.10 (1999).

(67) 33 U.S.C. [sections] 1313(d)(4)(B) (1994); 40 C.F.R. [sections] 131.12 (1999). Theoretically, the state's antidegradation policy should prevent water quality from adversely affecting species because they are protected existing uses under the CWA.

(68) 33 U.S.C. [sections] 1313(c)(3) (1994).

(69) See infra note 100 and accompanying text.

(70) OR. ADMIN. R. [sections] 340-041-0445(2)(b)(vii) (1999).

(71) Id. [sections] 340-041-0042 tbl.6.

(72) Id. [sections] 340-041-0445(2)(i), (p).

(73) See 33 U.S.C. [sections] 1342(b)-(d) (1994).

(74) See Water Pollution Control; Approval of Application by the State of Florida to Administer the National Pollutant Discharge Elimination System (NPDES) Program, 60 Fed. Reg. 25,718, 25,719 (May 12, 1995) ("[I]ssuance of a state NPDES permit and EPA's review of a proposed permit does not trigger Section 7 of the ESA."); see also infra note 116.

(75) 33 U.S.C. [sections] 1342(d)(2) (1994). Under 40 C.F.R. [sections] 123.44(c) (1999), the Regional Administrator must base his objection to the issuance of a proposed permit on one or more of the nine enumerated grounds. See 33 U.S.C. [sections] 1342(b)(1)-(9) (1994). To streamline this oversight process, the EPA Administrator can waive certain categories of federal review of state permit applications. Id. [sections] 1342(e); 40 C.F.R. [sections] 123.24(d)(1)-(7) (1999).

(76) See 40 C.F.R. [subsections] 122.44(d)(1), 123.44(c)(1) (1999).

(77) See Steiger, supra note 30, at 262. However, regulations promulgated under section 404 of the CWA do prevent EPA from waiving review of proposed permits if the discharges have a reasonable potential to affect endangered or threatened species. 40 C.F.R. [sections] 233.51(b)(2) (1999).

(78) 33 U.S.C. [sections] 1342(d)(4) (1994).

(79) Id.; 40 C.F.R. [sections] 123.44 (1999).

(80) See 40 C.F.R. [sections] 122.62 (1999). The Director may only modify or revoke the permit if cause exists. This may include material alterations to the permit, as well as new information or regulations. Id.

(81) 33 U.S.C. [sections] 1342(c)(1) (1994).

(82) Id. [sections] 1342(i).

(83) See Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 859 F.2d 156, 181 (D.C. Cir 1988) (stating that "the remedy is so drastic that EPA cannot be expected to use it except in egregious cases"); see also Erik R. Lehtinen, Virginia as a Case Study: EPA Should Be Willing to Withdraw NPDES Permitting Authority from Deficient States, 23 WM. & MARY ENVTL. L. & POLICY REV. 617, 637-45 (1999) (arguing that while EPA has never withdrawn a state's permitting authority, the agency should have done so in Virginia's case).

(84) 33 U.S.C. [subsections] 1313, 1314(a) (1994).

(85) See 1999 Draft MOA, supra note 15, at 2752; EPA Review and Approval of State and Tribal Water Quality Standards, Proposed Rule, 64 Fed. Reg. 37,072, 37,078 (July 9, 1999).

(86) 33 U.S.C [sections] 1314(a)(1) (1994). Aquatic life criteria may be expressed in either numeric or narrative form. EPA's guidelines for developing the criteria are designed to protect "most of the [aquatic] species and their uses most of the time, but not necessarily all of the species all of the time." Water Quality Standards, Establishment of Numeric Criteria for Priority Toxic Pollutants for the State of California, 62 Fed. Reg. 42,160, 42,168 (Aug. 5, 1997).

(87) 40 C.F.R. [sections] 131.11(b)(1) (1999).

(88) Id. [sections] 131.6 (requiring states to include minimum standards, such as "[u]se designations consistent with the provisions of [s]ections 101(a)(2) and 303(c)(2) of the Act" and "[a]n antidegradation policy consistent with [sections] 131.12").

(89) 33 U.S.C. [sections] 1313(c)(3) (1994).

(90) Id. [sections] 1313(c)(4).

(91) 16 U.S.C. [subsections] 1531(b), 1532(3) (1994).

(92) Tennessee Valley Auth. v. Hill (TVA v. Hill), 437 U.S. 153, 180 (1978).

(93) Shannon Petersen, Congress and Charismatic Megafauna: A Legislative History of the Endangered Species Act, 29 ENVTL. L. 463, 491 (1999) (citing Endangered Species Preservation Act of 1966, Pub. L. No. 89-669, [sections] 2(d), 80 Stat. 926, 928); see also DANIEL J. ROHLF, THE ENDANGERED SPECIES ACT: A GUIDE TO ITS PROTECTIONS AND IMPLEMENTATION 24 (1989) (noting that the "where practicable" language was in an early version of the ESA bill but was dropped prior to passage).

(94) TVA v. Hill, 437 U.S. at 180-81.

(95) Endangered species are those in danger of extinction throughout all or a significant part of their range. 16 U.S.C. [sections] 1532(6) (1994). Threatened species are those likely to become endangered within the foreseeable future throughout all or a significant part of their range. Id. [sections] 1532(20).

(96) Id. [subsections] 1532(15), 1533; 50 C.F.R. [sections] 424 (1999).

(97) 16 U.S.C. [sections] 1536(a)(1) (1994).

(98) Id. [sections] 1536(a)(2).

(99) A jeopardy finding is defined in the regulations as an action that "reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species." 50 C.F.R. [sections] 402.02 (1999).

(100) 16 U.S.C. [sections] 1536(a)(1)-(2) (1994). During formal consultation, the Services must issue a biological opinion based on the best scientific and commercial data available. Id. [sections] 1536(a)(2). If the Services determine that a project is likely to adversely affect a listed species or its critical habitat, they must render a jeopardy opinion and provide "reasonable and prudent alternatives" to the proposed action. Id. [sections] 1536(b)(3)(A); 50 C.F.R. [sections] 402.02 (1999). If the Services do not find that jeopardy is likely, they could issue a no-jeopardy opinion and allow the action to proceed. Id. [subsections] 402.13, 402.14(h)(3).

(101) 16 U.S.C. [sections] 1536(a)(2) (1994).

(102) 50 C.F.R. [sections] 402.02 (1999) (emphasis added).

(103) Id. [sections] 402.03; see Derek Weller, Limiting the Scope of the Endangered Species Act: Discretionary Federal Involvement or Control Under Section 402.03, 5 HASTINGS W.-N.W. J. ENVTL. L. & POL'Y 309 (1999) (criticizing this regulation for effectively redefining the scope of "agency action" subject to section 7(a)(2)'s mandate to exclude nondiscretionary agency action; this nondiscretionary element does not appear in the statutory language of the ESA, its legislative history, or any judicial interpretations of the scope of section 7(a)(2)).

(104) 16 U.S.C. [sections] 1538(a)(1)(B) (1994). FWS regulations afford threatened species similar protection pursuant to 16 U.S.C. [sections] 1533(d). See 50 C.F.R. [sections] 17.31 (1999).

(105) 16 U.S.C. [sections] 1532(19) (1994).

(106) 50 C.F.R. [subsections] 17.3, 222.102 (1999); see also Endangered and Threatened Wildlife and Plants; Definition of "Harm," 63 Fed. Reg. 24,148, 24,149 (May 1, 1998). Slightly modifying FWS's regulation, NMFS includes habitat modification action that "actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, and sheltering." Id. at 24,148 (emphasis added). In essence, this proposed rule would affect all NPDES permit holders, because any discharge into waters that impairs "spawning, rearing, [or] migrating" patterns of federally listed endangered or threatened aquatic species could constitute a taking. In a list of habitat-modifying activities that may constitute a taking, NMFS has included the discharging of pollutants, such as "oil, toxic chemicals, radioactivity, carcinogens, mutagens, or teratogens into a listed species' habitat." Id. at 24,149.

(107) Babbitt v. Sweet Home Chapter of Communities for a Greater Or., 515 U.S. 687, 708 (1995).

(108) 16 U.S.C. [subsections] 1539(b)(4), 1539(a)(1)(B) (1994).

(109) Id. [sections] 1536(b)(4)(A), (B). Reasonable and prudent alternatives are those that can be implemented in a manner consistent with the intended purpose of the project and within the scope, jurisdiction, and legal authority of the agency, that are economically and technically feasible, and that avoid jeopardizing the species or critical habitat. 50 C.F.R. [sections] 402.02 (1999); see also 16 U.S.C. [sections] 1536(b)(3)(A) (1994).

(110) 16 U.S.C. [subsections] 1536(b)(4), 1536(o) (1994); 50 C.F.R. [sections] 402.14(i) (1999).

(111) 16 U.S.C. [sections] 1539(a) (1994).

(112) Id. [sections] 1539(a)(2)(A)(i)-(iv); 50 C.F.R. [sections] 17.22 (1999).

(113) 16 U.S.C. [sections] 1539(a)(2)(B) (1994); see also Friends of Endangered Species, Inc. v. Jantzen, 760 F.2d 976, 982-84 (9th Cir. 1985) (discussing the second and fourth factors).

(114) 16 U.S.C. [sections] 1539(a) (1994). Theoretically, if a proposed discharge were likely to injure aquatic species, it would violate WQSs and the state would not issue the permit. However, a species listing may occur after a permit has been issued. At this point, if the permittee is concerned about a potential taking, it may apply for a section 10 incidental take permit.

On average, an HCP application costs between $50,000 and $100,000 per year. Karin Sheldon, Habitat Conservation Planning: Addressing the Achilles Heel of the Endangered Species Act, 6 N.Y.U. ENVTL. L.J. 279, 304 (1998).

(115) See 16 U.S.C. [sections] 1536 (1994).

(116) See State Program Requirements; Approval of Application by Oklahoma to Administer the National Pollutant Discharge Elimination System (NPDES) Program, 61 Fed. Reg. 65,047, 65,052 (Dec. 10, 1996) ("EPA's approval of the State permitting program under section 402 of the Clean Water Act is a federal undertaking subject to [the consultation] requirement, but the State's subsequent issuance of NPDES permits may not be."); see also supra note 74.

(117) See Brief for Respondent at 33, American Forest & Paper Ass'n v. Environmental Protection Agency, 137 F.3d 291 (5th Cir. 1998) (No. 96-60874) ("[EPA's] view is that the ESA applies only to its state program approval action."); see also 1999 Draft MOA, supra note 15, at 2744 ("The draft MOA does not change our current policy of conducting section 7 consultations on EPA's actions approving water quality standards and NPDES permitting programs that may affect a listed species.").

While no case directly considers whether section 7 applies to state-issued CWA permits, some legislative history and case law supports EPA's reasoning that state-issued permits are state actions and thus do not trigger statutory obligations for the federal government. See 33 U.S.C. [sections] 1371(c)(1) (1994 & Supp. III 1997) (noting that EPA's approval of state NPDES programs is excluded from the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. [subsections] 4321-4347 (1994 & Supp. III 1997)); SENATE CONSIDERATION OF THE REPORT OF THE CONFERENCE COMMITTEE (Oct 4, 1972), reprinted in A LEGISLATIVE HISTORY OF THE WATER POLLUTION CONTROL ACT AMENDMENTS OF 1972, at 161, 183 (1978). In discussing whether NEPA applies to state-administered CWA programs, Representative Wright stated that Congress had clearly articulated the position that state permits would be issued "under State law [and] would be State, not Federal, actions." 118 CONG. REC. 33,761, 33,761 (Oct. 4, 1972) (remarks of Rep. Wright). Several judicial opinions involving state NPDES programs and NEPA obligations narrowly construe state obligations under CWA programs. These opinions reason that state-issued permits do not trigger NEPA's environmental impact statement (EIS) requirement because they are not "major federal actions significantly affecting the quality of the human environment." 42 U.S.C. [sections] 4332(C) (1994 & Supp. III 1997); see District of Columbia v. Schramm, 631 F.2d 854, 862 (D.C. Cir. 1980) (holding that EPA's decision not to veto state NPDES permit does not constitute a "major federal action" under NEPA and therefore is not subject to NEPA review); Chesapeake Bay Found., Inc. v. Virginia State Water Control Bd., 453 F. Supp. 122, 126 (E.D. Va. 1978) (holding that state issuance of NPDES permits does not constitute an act that is federal in nature, and therefore no EIS is required). Similarly, EPA argues that "[b]ecause state permit actions under EPA-approved programs are not federal actions, neither NEPA nor ESA apply to them." State Program Requirements; Approval of Application by Louisiana to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Louisiana, 61 Fed. Reg. 47,932, 47,937 (Sept. 11, 1996).

For an analysis challenging the application of other state NPDES/NEPA cases in the ESA context, see Kristin M. Conroy, Protecting Endangered Species After States Assume Federal Wetlands Permitting 22-23 (1998) (unpublished LL.M. thesis, Northwestern School of Law of Lewis & Clark College) (on file with author). Conroy argues that this analogy fails because the ESA is a more substantive statute than NEPA. Id.

(118) See 40 C.F.R. [sections] 123.22 (1999). Once a state assumes a permit program, it issues permits based on state regulations and statutes. See 61 Fed. Reg. at 47,933.

(119) EPA contends that its "review authority necessarily gives [the agency] discretionary involvement because EPA must exercise its informed judgment as to whether the statutory criteria are met" and whether the state is legally capable of enforcing the CWA requirements. Brief for Respondent at 34, American Forest & Paper I (No. 96-60874). EPA consults on state program authorization because this authorizing "action" may have "[i]ndirect effects ... that are caused by the proposed action and are later in time" that jeopardize the continued existence of endangered species or their habitat. 50 C.F.R. [sections] 402.02 (1999). When approving Oklahoma's state program, EPA explained that such approval "has the potential indirectly to affect federally-listed endangered and threatened fish and wildlife in ... waters ... and EPA has the discretion under CWA section 402 and its implementing regulations to protect fish and wildlife that are in danger of extinction." Brief for Respondent at 15, American Forest & Paper Ass'n v. Environmental Protection Agency (American Forest & Paper II), 154 F.3d 1155 (10th Cir. 1998) (No. 97-9506).

While no court has conclusively resolved whether section 7 procedures apply when EPA approves a state NPDES program, EPA maintains that even if the ESA does not require consultation with the Services, the ESA and its implementing regulations do not prohibit federal agencies from voluntarily consulting with FWS or NMFS on actions they believe may affect listed species. In two recent cases, petitioner American Forest & Paper Association challenged EPA's decision to consult when it approved the Louisiana and Oklahoma state NPDES permitting programs. While the Fifth Circuit held that EPA had exceeded its statutory authority by conditioning Louisiana's state permitting program on consultation measures with the Services, the case did not conclude that EPA's approval of a state permitting program was not a federal action triggering section 7 consultation. See American Forest & Paper I, 137 F.3d at 298 n.6 ("Whether EPA's approval of Louisiana's permitting program constitutes `agency action' for ESA purposes is largely beside the point."); see also American Forest & Paper Ass'n v. Environmental Protection Agency, 154 F.3d 1155, 1160 (10th Cir. 1998) (dismissing case for lack of standing); infra notes 177-82 and accompanying text (discussing the two cases).

(120) See, e.g., Water Quality Standards for Alabama, 63 Fed. Reg. 10,799, 10,814-15 (Mar. 5, 1998) (noting that section 7 consultation is required in reviewing WQSs because they are federally authorized actions); see also KELLY NOLAN, INTEGRATING THE PLANNING MANDATES OF THE CLEAN WATER ACT, THE COASTAL ZONE ACT REAUTHORIZATION AMENDMENTS OF 1990, AND THE ENDANGERED SPECIES ACT: TOWARD A COMPREHENSIVE APPROACH TO WATERSHED MANAGEMENT PLANNING 81 (Northwest Water Law & Policy Project 1999) (on file with author).

(121) See 16 U.S.C. [sections] 1536(a)(2) (1994).

(122) See supra notes 57-58 and accompanying text.

(123) See 40 C.F.R. [sections] 131.10 (1999). States have discretion in designating uses for a given water body. See id.

(124) Environmental Law Foundation, Comments on Draft Memorandum Agreement Between the Environmental Protection Agency, Fish and Wildlife Service, and National Marine Fisheries Service Regarding Enhanced Coordination Under the Clean Water Act and the Endangered Species Act 3 (Apr. 15, 1999) (on file with author).

(125) See Healy, supra note 33, at 414-25 (discussing the failure of enforcement of state WQSs). See generally Michael D. Axline & Patrick C. McGinley, Universal Statutes and Planetary Programs: How EPA Has Diluted the Clean Water Act, 8 J. ENVTL. L. & LITIG. 253 (1993) (arguing that EPA's failure to include pollutants in its permit scheme is not a defense to a citizen action for discharging the pollutant without authorization).

(126) S. REP. NO. 103-33, at 14 (1993).

(127) Water Quality Program, Washington Dep't of Ecology's Candidate 1998 List of Impaired and Threatened Waterbodies--The 303(d) List (last modified Oct. 1999) <http://www.wa.gov/ecology/wq/303d/index.html>; Water Quality Program, Oregon Dep't of Envtl. Quality, Water Quality Limited Streams 303(d) List (last modified Oct. 1998) <http://waterquality.dep.state.or.us/wq/303list/303page.htm>.

(128) Interview with Michael C. Blumm, Professor, Northwestern School of Law of Lewis & Clark College (Nov. 2, 1999); see also U.S. ENVTL. PROTECTION AGENCY, FINAL REPORT ON THE FEDERAL/STATE/LOCAL NONPOINT SOURCE TASK FORCE AND RECOMMENDED NATIONAL NONPOINT SOURCE POLICY 2 (1985) (noting that 78% of states have reported that nonpoint source pollution was greater than or equal to point source pollution); supra notes 62-64.

(129) See supra Part II.C.

(130) See supra note 9.

(131) See infra Part III.A.

(132) See infra Part III.B, C.

(133) see Water Quality Standards for Alabama, 63 Fed. Reg. 10,799, 10,814-15 (Mar. 5, 1998). EPA considers triennial review of state WQSs to be a federal action that warrants ESA review. Id.

(134) For a detailed discussion of this lawsuit, see James Wright, The Alabama Department of Environmental Management Takes on the EPA: Opening Skirmish in a National Battle, 28 CUMB. L REV. 663, 670-71 (1998) (describing how EPA and plaintiff, Mudd, reached a settlement whereby EPA agreed to consult on Alabama's water quality standards and to pay Mudd $39,000 in attorney fees even though EPA argued that its MOA had mooted Mudd's claims).

(135) See Coordination Between the Environmental Protection Agency, Fish and Wildlife Service and National Marine Fisheries Service Regarding Development of Water Quality Criteria and Water Quality Standards Under the Clean Water Act 4 (July 27, 1992), reprinted in ENVIRONMENTAL PROTECTION AGENCY, WATER QUALITY STANDARDS HANDBOOK app. F (2d ed. 1993) [hereinafter 1992 Draft MOA]. In addition, EPA agreed to involve the Services when establishing or revising federal aquatic life criteria. Id.; see also 33 U.S.C. [sections] 1314(a) (1994). Federal aquatic criteria serve as scientific and recommended guidelines for states in developing their own water quality standards. Id.

(136) 1992 Draft MOA, supra note 135, at 7-8.

(137) Id. at 8-9. The 1992 Draft MOA never explicitly states that EPA's triennial review authority is the federal action for purposes of triggering section 7(a)(2).

(138) Id. at 1.

(139) Id. at 3.

(140) William H. Satterfield et al., Who's Afraid of the Big Bad Beach Mouse?, NAT. RESOURCES & ENV'T, Summer 1993, at 13, 16, 62 (evaluating the 1992 draft interagency process as duplicative because aquatic species are already covered by the WQSs and claiming that, if implemented, it would violate the Administrative Procedure Act because the MOA establishes new procedures to implement EPA's duties under the CWA and the ESA). Since the signing of the 1992 Draft MOA, EPA has consulted on triennial reviews of state water quality standards in Alabama and Oregon. See supra note 120 and infra Part IV.C.

(141) Satterfield et al., supra note 140, at 62.

(142) Agreement Among the Environmental Protection Agency, Fish and Wildlife Service, and National Marine Fisheries Service Regarding Enhanced Protection and Recovery of Threatened and Endangered Species Under Sections 303(c), 402, 404 and 405 of the Clean Water Act and Section 7 of the Endangered Species Act, Final Review Draft (July 31, 1997) [hereinafter 1997 Draft MOA] (on file with author). For an overview and criticism of the 1997 Draft MOA, see Conroy, supra note 117, at 35-46.

(143) DRAFT MEMORANDUM OF AGREEMENT REGARDING THE CLEAN WATER ACT AND ENDANGERED SPECIES ACT--QUESTIONS AND ANSWERS REGARDING ITS IMPLICATIONS FOR CWA STATE/TRIBAL PERMITTING AND STANDARDS PROGRAMS 2 (1997) [hereinafter 1997 MOA Q&A] (on file with author).

(144) 1997 Draft MOA, supra note 142, [sections] VI. This MOA identifies EPA's triennial review of state WQSs and approval of state NPDES permit programs as discretionary federal actions that trigger section 7 consultation. The MOA also explains that this programmatic consultation is appropriate because it involves "similar individual actions" under 50 C.F.R. [sections] 402.14(c) (1999) (for example, the CWA requires all states to meet the same minimum federal requirements for approval of a permit program). Id. [subsections] VI, IX.

(145) DRAFT MEMORANDUM OF AGREEMENT REGARDING THE CLEAN WATER ACT AND ENDANGERED SPECIES ACT: SUMMARY OF DRAFT MOA [subsections] I, II (1997) [hereinafter 1997 DRAFT SUMMARY] (on file with author).

(146) 1997 Draft MOA, supra note 142, [sections] III ("Achievement of these goals will reduce or eliminate the need to apply the regulatory provisions of the ESA.").

(147) Id. [sections] VII.A. This proposal would amend 40 C.F.R. sections 122 to 144 (NPDES permit program) and section 131 (national water quality standards). The MOA states that "EPA will propose to ... [p]rohibit the issuance of any State or Tribal permit that would likely jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of designated critical habitat...." 1997 Draft MOA, supra note 142, [sections] VII.A. Professor Craig Johnston suggests that EPA could instead rely on the antidegradation policy of the CWA to object to permits that threaten existing uses, such as aquatic species. Interview with Professor Craig Johnston, Northwestern School of Law of Lewis & Clark College (Mar. 11, 1999).

(148) 1997 Draft MOA, supra note 142, [sections] VII.A.2. The proposed amendment for NPDES permit regulations prohibits "the issuance of any State or Tribal permit that would likely jeopardize" federally listed species. Id. [sections] VII.A.1. It is unclear how EPA will enforce this prohibition, because the ESA does not require states to consult with the Services, and EPA may not augment its veto authority.

(149) Id. [sections] VII.A.1.

(150) Id. [sections] VII.B.

(151) Id. Since these guidelines are only recommended, the CWA does not require states to adopt them.

(152) Id. [sections] VIII.A.

(153) Id. [sections] VIII.A.1.

(154) Id. [sections] VIII.A.2. To facilitate greater efficiency, EPA could designate a requesting state to serve as a nonfederal representative to conduct informal consultation with the Services under existing regulations. See 50 C.F.R. [sections] 402.08 (1999).

(155) 1997 Draft MOA, supra note 142, [subsections] VIII, IX.

(156) See infra notes 158-67 and accompanying text.

(157) 1997 Draft MOA, supra note 142, [sections] IX.A.

(158) 1997 DRAFT SUMMARY, supra note 145, [sections] I.

(159) 1997 Draft MOA, supra note 142, [sections] IX.B.1. This section did not cite existing CWA authority, which requires states to provide notice and copies of draft permits to the Services. See 40 C.F.R. [sections] 124.10(c)(1)(iv) & (e) (1999). The accompanying biological opinion, however, did. ENDANGERED SPECIES ACT--SECTION 7 CONSULTATION: DRAFT BIOLOGICAL OPINION AND CONFERENCE REPORT 5 (1997) [hereinafter 1997 DRAFT NATIONAL BO] (on file with author). Cf. infra note 208 and accompanying text.

(160) 1997 Draft MOA, supra note 142, [sections] IX.B.2.

(161) Id. [sections] IX.B.3.

(162) Id. [sections] IX.B.4.

(163) Id. [sections] IX.B.5.

(164) Id. [sections] IX.B.7; see also 40 C.F.R. [subsections] 123.44, 233.50 (1999) (describing EPA's review of and objections to state permits).

(165) 1997 Draft MOA, supra note 142, [sections] IX.B.6, 7. The 1997 Draft MOA does not define "minor." Rather, it distinguishes a minor level with "adverse effects of greater magnitude where the impacts approach jeopardy." Id. [sections] IX.B.6.

(166) Id. [sections] IX.B.8.

(167) Id. See 40 C.F.R. [sections] 122.62 (1999) for circumstances that prevent EPA from modifying an issued state permit

(168) 1997 DRAFT NATIONAL BO, supra note 159.

(169) Id.

(170) Id.; 1997 MOA Q&A, supra note 143, at 3.

(171) 1997 DRAFT NATIONAL BO, supra note 159, at 11.

(172) 1997 Draft MOA, supra note 142, [sections] IX.B.6.

(173) See id.; 1997 DRAFT NATIONAL BO, supra note 159, at 11.

(174) See generally 1997 Draft MOA, supra note 142; 1997 DRAFT NATIONAL BO, supra note 159.

(175) EPA Suggests National, Not State-Level Consultation on Criteria, INSIDE EPA's WATER POL'Y REP., Sept. 2, 1998, at 8.

(176) See supra notes 120-21.

(177) See infra notes 178-82.

(178) 137 F.3d 291 (5th Cir. 1998). There was no district court opinion in this case because under section 509 of the CWA, review of the Administrator's action "in making any determination as to a State permit program submitted under section 1342(b) of this title" goes directly to the federal Circuit Court of Appeals. 33 U.S.C. [sections] 1369(b)(1) (1994).

(179) 137 F.3d at 297; see also 33 U.S.C. [sections] 1342(b)(1)-(9) (1994).

(180) 137 F.3d at 297, 298 n.5. The court relied on Platte River Whooping Crane Trust v. Federal Energy Regulatory Commission, 962 F.2d 27, 34 (D.C. Cir. 1992) (holding that ESA section 7 does not expand an agency's existing statutory authorities to conserve listed species). Other cases have reached similar conclusions. In Riverside Irrigation District v. Andrews, the Tenth Circuit explained that "[t]he Endangered Species Act, does not, by its terms, enlarge the jurisdiction of the Corps of Engineers under the Clean Water Act.... The question in this case is how broadly the Corps is authorized to look under the Clean Water Act in determining the environmental impact of the discharge it is authorizing." 758 F.2d 508, 512 (10th Cir. 1985) (but allowing the Corps to require an individual permit based on ESA concerns).

(181) American Forest & Paper I, 137 F.3d at 298. This negative judicial outcome created a considerable stumbling block, which hindered EPA and the Services from crafting legally binding procedures to protect listed aquatic species under state-administered CWA programs. See Court Sidesteps Key ESA Issue While Dismissing Major Clean Water Case, INSIDE EPA's WATER POL'Y REP., Sept. 16, 1998, at 7, 11.

(182) American Forest & Paper Ass'n v. Environmental Protection Agency, 154 F.3d 1155, 1157-58 (10th Cir. 1998). The Oklahoma Department of Environmental Quality had agreed to adopt coordination procedures largely identical to those proposed by EPA and the Services in order to ensure that state-issued permits address listed species. See Memorandum of Agreement Between Oklahoma Dep't of Envtl. Quality and the U.S. EPA (Region 6), at 26 (revised Aug. 4, 1997). But rather than applying the coordination procedures to all state-issued permits, the MOA between Oklahoma Department of Environmental Quality and FWS limited the scope only to permits discharging into "sensitive waters." Memorandum of Understanding Between Oklahoma Dep't of Envtl. Quality and the U.S. FWS 1 (Mar. 31, 1996). Sensitive waters include "all areas identified by the Service as habitat for threatened or endangered species, and designated critical habitat." Id. The court focused on this distinction, noting that it was unclear "whether the specific consultation procedures at issue in the Fifth Circuit case are the same as the relevant procedures in this case." American Forest & Paper II, 154 F.3d at 1160 n.8.

(183) See generally State Program Requirements; Approval of Application to Administer the National Pollutant Discharge Elimination System (NPDES); Texas, 63 Fed. Reg. 51,164 (Sept 24, 1998).

(184) See infra Part IV.B.

(185) 1999 Draft MOA, supra note 15, at 2742. The EPA extended the public comment period to April 15, 1999. Extension of the Comment Period for the Draft Memorandum of Agreement Between the Environmental Protection Agency, Fish and Wildlife Service, and National Marine Fisheries Service Regarding Enhanced Coordination Under the Clean Water Act and the Endangered Species Act, 64 Fed. Reg. 13,014, 13,014 (Mar. 16, 1999). For a brief overview of the MOA's structure, see NOLAN, supra note 120, at 77-86.

(186) 1999 Draft MOA, supra note 15, at 2742.

(187) Id. In response to some comments, the agencies assert that this draft agreement "is a procedural document that addresses how EPA and the Services intend to exercise our existing statutory and regulatory authorities in a coordinated manner." Id. Accordingly, they argue that it is not subject to notice and comment rulemaking procedures under section 553 of the Administrative Procedure Act (APA). 5 U.S.C. [sections] 553 (1994 & Supp. III 1997). This argument, however, may be challenged given that APA procedures are required whenever an agency issues "a statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency." Id. [sections] 551(4) (1994). These coordination procedures between EPA and the Services, according to some observers, clearly establish "new agency policy with significant future effect" and thus require the procedural safeguards mandated by the APA. Satterfield et al., supra note 140, at 18.

(188) 1999 Draft MOA, supra note 15, at 2743, 2746 (addressing American Forest & Paper I).

(189) Id. at 2742.

(190) Id.

(191) Id. at 2746. EPA claimed that its coordination procedures were within the court's reading because they are within the scope of existing CWA authority and not the ESA. Id.

(192) Id.

(193) Unlike the 1997 Draft MOA, the 1999 Draft MOA limited the programmatic scope of the coordination procedures to water quality standards (CWA section 303(c)) and state permitting programs (CWA section 402), placing the wetlands (CWA section 404) and sewage sludge (CWA section 405) programs on the backburner. Id. at 2743, 2747.

(194) See infra notes 200-02 and accompanying text.

(195) See infra notes 204-09 and accompanying text.

(196) 1999 Draft MOA, supra note 15, at 2750. Cf. supra note 147 (discussing the 1997 Draft MOA proposal). Perhaps the agencies omitted the amendment to the NPDES permitting regulations in response to the Fifth Circuit opinion, thereby limiting EPA's veto authority to existing regulations. See infra notes 205-06 and accompanying text.

(197) 1999 Draft MOA, supra note 15, at 2744.

(198) Id.

(199) Id. at 2751. The 1999 Draft MOA proposed to examine the direct and indirect effects of the forty-five pollutants on listed species. Id. This concept of a national consultation on federal aquatic criteria fleshed out the 1992 Draft MOA provisions. See supra notes 135-37 and accompanying text.

(200) 1999 Draft MOA, supra note 15, at 2751.

(201) Id. New Jersey, Alabama, and Arizona adopted aquatic life criteria in WQSs, while EPA promulgated such criteria for the Great Lakes Basin. See also sources cited supra note 120 (discussing Alabama's water quality standards).

(202) 1999 Draft MOA, supra note 15, at 2752.

(203) Id. at 2755. EPA must institute the basic section 7 consultation procedure when approving new or revised state WQSs. Id, at 2752.

(204) Id. In the preamble, for example, the agencies stated, "the draft MOA makes clear that EPA would retain the ultimate authority for determining whether to object to a State or Tribal permit, and that EPA would do so pursuant to its authorities under the CWA." Id. at 2746 (emphasis added).

(205) See American Forest & Paper Ass'n v. Environmental Protection Agency, 137 F.3d 291, 298 (5th Cir. 1998). The court pronounced that "[t]he upshot is that EPA cannot invoke the ESA as a means of creating and imposing requirements that are not authorized by the CWA." Id. at 299.

(206) 1999 Draft MOA, supra note 15, at 2755; see also American Forest & Paper I, 137 F.3d at 298.

(207) 1999 Draft MOA, supra note 15, at 2755; see also 33 U.S.C. [sections] 1342(d)(2) (1994) ("No permit shall issue ... if the Administrator within ninety days of the date of transmittal of the proposed permit by the State objects in writing to the issuance of such permit as being outside the guidelines and requirements of this chapter."); 40 C.F.R. [sections] 123.44(c)(7) (1999) ("The Regional Administrator's objection to the issuance of a proposed permit must be based upon one or more of the following grounds: ... (7) Issuance of the proposed permit would in any other respect be outside the requirements of CWA, or regulations issued under CWA.").

(208) 1999 Draft MOA, supra note 15, at 2755; see also 40 C.F.R. [sections] 124.10(c)(1)(iv), (e) (1999) (requiring mailing to the Services for public notice). Cf. supra note 159 and accompanying text

(209) See 1999 Draft MOA, supra note 15, at 2745 ("[T]he draft MOA is solely a procedural document that does not impose any obligations on any party, including States and Tribes.").

(210) Id. at 2755.

(211) Id. at 2749; see also 1997 Draft MOA, supra note 142, [sections] V.E.2.

(212) 1999 Draft MOA, supra note 15, at 2755 ("EPA's oversight includes consideration of the impact of permitted discharges on water and species that depend on those waters. EPA does this by determining whether State or Tribal permits indeed attain water quality standards.").

(213) See U.S. FISH & WILDLIFE SERV., FWS BIOLOGICAL OPINION ON PROPOSED AUTHORIZATION OF EPA OF THE ASSUMPTION BY THE STATE OP TEXAS OF THE TEXAS POLLUTION DISCHARGE ELIMINATION SYSTEM (TPDES) 48 (1998).

(214) Id.

(215) Id. FWS, however, explains that the State of Texas provided information indicating that the Texas Surface Water Quality Standards "were sufficient to protect aquatic and aquatic-dependent species including threatened and endangered species." Id. at 52.

(216) 1999 Draft MOA, supra note 15, at 2746 (emphasis added).

(217) Id. at 2755.

(218) 33 U.S.C. [sections] 1342(d)(2) (1994).

(219) See American Forest & Paper Ass'n v. Environmental Protection Agency, 137 F.3d 291, 299 (5th Cir. 1998). The MOA's greatest challenge seems to be whether the programmatic consultation and accompanying biological opinion can satisfy the statutory procedural requirements of the ESA.

(220) See 1999 Draft MOA, supra note 15, at 2755.

(221) Id. at 2752.

(222) Id. It appears that this incidental take statement would extend to states that adopt "scientifically defensible" water quality criteria under the CWA so long as they are identical to or more stringent than EPA's recommended aquatic life criteria. 40 C.F.R [sections] 131.11(b)(1)(iii) (1999).

(223) For example, the MOA only classified the acceptable level of take as "minor." 1999 Draft MOA, supra note 15, at 2755. The MOA distinguishes a "minor" take from "NPDES permits that have adverse effects on Federally-listed species or critical habitat that are more than minor" but provides little other guidance as to what is acceptable. Id. In such cases, the Services and EPA intend to work with the states to reduce adverse effects. Id. If this strategy fails, EPA can, as a last resort, object and "[federalize] the permit where consistent with EPA's CWA authority." Id. The 1997 Draft MOA also struggled with this problem by assigning an "unquantified" level of take to the proposed action" because of the scientific uncertainty and secretive nature of aquatic species. 1997 DRAFT NATIONAL BO, supra note 159, at 11.

(224) 1999 Draft MOA, supra note 15, at 2751

(225) 16 U.S.C. [sections] 1536(a)(4) (1994).

(226) Id.

(227) Id.; see also ROHLF, supra note 93, at 80.

(228) 50 C.F.R. [sections] 402.16(b) (1999).

(229) 16 U.S.C. [sections] 1536(a)(1) (1994).

(230) In its comments on the 1999 Draft MOA, the Environmental Law Foundation noted that this grouping of species or "guilding" approach has also been problematic in other contexts, such as the multispecies habitat conservation plan approved under section 10(a)(2) of the ESA, 16 U.S.C. [sections] 1539(a)(2) (1994). Environmental Law Foundation, supra note 124, at 7.

(231) Sierra Club v. Glickman, 156 F.3d 606, 616 (5th Cir. 1998) (holding that USDA did not employ its affirmative authority to carry out conversation programs for the species dependent on the Edwards Aquifer).

(232) See 50 C.F.R. [sections] 402.14(d) (1999).

(233) 1999 Draft MOA, supra note 15, at 2746, 2755.

(234) See 1999 Draft MOA, supra note 15, at 2755; 1997 Draft MOA, supra note 142, [sections] IX.B.8.

(235) See 1999 Draft MOA, supra note 15, at 2756; 1997 Draft MOA, supra note 142, [sections] IX.B.8.

(236) See 1999 Draft MOA, supra note 15, at 2742.

(237) Id. at 2755.

(238) Id. EPA and the Services could ask a state to reopen an issued permit under its state authority if it "is likely to have an adverse impact on a Federally-listed species or critical habitat" Id. However, at this point, neither agency has any legally enforceable authority to compel state agencies to protect adversely affected species.

(239) Id. There is no requirement that the Services ground their assessment on the best scientific and commercial data available, as is required by the ESA. See 50 C.F.R. [sections] 402.14(g) (1999).

(240) 1999 Draft MOA, supra note 15, at 2755.

(241) See id.

(242) See, e.g., Sierra Club v. Glickman, 67 F.3d 90, 95-96 (5th Cir. 1995) (finding that an agency's action under both sections 7 and 9 of the ESA may not be set aside unless the reviewing court determines it to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" under section 706 of the APA); North Slope Borough v. Andrus, 642 F.2d 589, 609 (D.C. Cir. 1980) (holding that the conclusions of biological opinions "are the pivots around which ESA analysis must turn" because they assess the nature and extent of agency action and whether it is likely to violate the substantive mandates of section 7(a)(2)).

(243) Tribal Village of Akutan v. Hodel, 869 F.2d 1185, 1193 (9th) Cir. 1988) (noting that agency deviation from the Services' recommended alternatives is "subject to the risk that [it] has not satisfied" ESA section 7(a)(2)).

(244) See Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 844-45 (1984) (discussing the principles of agency deference).

(245) See Larry Lago, Chamber May Intervene in Wildlife Case, J. REC., May 9, 1997, available in 1997 WL 14392322 (listing problems posed by mandatory review); PERKINS COIE LLP, supra note 13, at 4 (stating that business and property owners, for example, are concerned that "state and local regulatory responses to ESA listings will impose added costs without achieving ESA compliance certainty or salmon recovery").

(246) More likely, though, the applicant will comply with the demands of EPA and the Services to qualify for a minor take under the programmatic consultation and accompanying incidental take statement. See 1999 Draft MOA, supra note 15, at 2755.

(247) State Water Officials Call on EPA for Open Dialogue on Species Plan, INSIDE EPA'S WATER POL'Y REP., Feb. 18, 1998, at 13.

(248) A mixing zone is a "limited area or volume of water where initial dilution of a discharge takes place and where numeric water quality criteria can be exceeded but acutely toxic conditions are prevented," so long as they do not harm designated uses. ENVIRONMENTAL PROTECTION AGENCY, supra note 135, at 5-2.

(249) State Water Officials Call on EPA for Open Dialogue on Species Plan, supra note 247, at 13.

(250) See Conroy, supra note 117, at 50.

(251) See 1999 Draft MOA, supra note 15, at 2755, 2752.

(252) See Conroy, supra note 117, at 27; NOLAN, supra note 120, at 83. John Steiger, a lawyer with the Department of the Interior, endorses a broad application and interpretation of section 7(a)(2) to delegable federal programs as sound policy because it establishes routine procedures to ensure the conservation of endangered species. Steiger, supra note 30, at 281.

(253) 50 C.F.R. [sections] 402.03 (1999). EPA could even voluntarily subject its oversight authority to consultation. This result is highly unlikely given EPA's steadfast interpretation and the Fifth Circuit's opinion. See supra notes 116-17 and accompanying text.

(254) See Defenders of Wildlife v. Andrus, 627 F.2d 1238, 1244 (D.C. Cir. 1980) (holding that a failure to veto is not a federal action for NEPA purposes in a case involving the Federal Land Policy and Management Act of 1976, 43 U.S.C. [subsections] 1701-1782 (1994 & Supp. III 1997)); Save the Bay, Inc. v. Environmental Protection Agency, 556 F.2d 1282, 1295 (5th Cir. 1977) (finding that a failure to veto a state's NPDES permit did not constitute agency action under section 509 of the CWA). Professor Michael Blumm maintains that such cases make it quite unlikely that a court would conclude that EPA's failure to veto an NPDES permit is a federal "action" under section 7(a)(2) of the ESA, even though there clearly is discretion to act. Interview with Michael C. Blumm, supra note 128.

(255) State Program Requirements; Approval of Application to Administer the National Pollutant Discharge Elimination System (NPDES); Texas, 63 Fed. Reg. 51,164, 51,164 (Sept. 24, 1998). EPA can object to a state permit that fails to satisfy water quality standards protective of listed fish and wildlife. Id. at 51,198. Environmentalists recently filed a lawsuit against EPA for its approval of Texas's NPDES program, alleging that the agency inadequately addressed state funding and regulatory issues. Environmentalists Sue EPA for Approval of Texas Water Program, INSIDE EPA's WATER POL'Y REP., Feb. 3, 1999, at 11.

(256) Memorandum of Agreement Between the Texas Natural Resource Conservation Commission and the U.S. EPA, Region 6, Concerning the National Pollution Discharge Elimination System 34 (Sept. 14, 1998) [hereinafter TX/EPA MOA] (on file with author).

(257) Id. at 34; see also U.S. FISH & WILDLIFE SERV., supra note 213, at 13 ("If unable to resolve identified issue(s) with the State, the Service will contact the appropriate EPA Regional Branch not later than five working days prior to the close of the public comment period on the State's draft [Texas NPDES TPDES)] permit.").

(258) TX/EPA MOA, supra note 256, at 34.

(259) 63 Fed. Reg. at 51,198. When EPA authorizes a state to administer a CWA program, the agency issues a final rule in the Federal Register and enters into an MOA with the respective state administrative agency. 40 C.F.R. [subsections] 123.24(a), 123.61(c) (1999).

(260) 63 Fed. Reg. at 51,199.

(261) Id.

(262) Id.

(263) See TX/EPA MOA, supra note 256, at 33.

(264) Id.

(265) 33 U.S.C. [sections] 1311(b)(1)(c) (994).

(266) 40 C.F.R [sections] 122.44(d)(1) (1999).

(267) 30 TEX. ADMIN. CODE. [sections] 307.6(b)(4) (1998).

(268) See TX/EPA MOA, supra note 256, at 33-34; U.S. FISH & WILDLIFE SERV., supra note 213, at 4-15.

(269) U.S. FISH & WILDLIFE SERV., supra note 213, at 50.

(270) Id. at 14.

(271) id. ("Minor for the purposes of this Biological Opinion means these impacts cannot reach levels that significantly impair or disrupt essential behavior patterns, including but not limited to breeding, feeding, or sheltering.").

(272) See id.

(273) See id.

(274) Id. at 52.

(275) Id.

(276) Id.

(277) Id.

(278) Id. at 14.

(279) See id. at 48.

(280) U.S. NAT'L MARINE FISHERIES SERV., BIOLOGICAL AND CONFERENCE OPINION ON APPROVAL OF OREGON WATER QUALITY FOR DISSOLVED OXYGEN, TEMPERATURE, AND PH 15 (1999). For a history on this consultation process, see Bell & Hanson, supra note 5, at 2, and MICHAEL C. BLUMM, SACRIFICING SALMON: A LEGAL AND POLITICAL HISTORY OF THE DECLINE OF COLUMBIA BASIN SALMON 220-25 (U. Wash. Press, forthcoming 2000).

(281) BLUMM, supra note 280, at 221. The Services have consulted on other state water quality standards. See supra note 120.

(282) U.S. NAT'L MARINE FISHERIES SERV., supra note 280, at 5.

(283) Id. at 9, 22.

(284) Id. at 29.

(285) Id. at 10.

(286) Id. at 19, 23-24.

(287) Id. at 29-30.

(288) Id. at 37-40.

(289) Id. at 15-16.

(290) Id. at 30.

(291) Id. at 57-58.

(292) Id. at 58.

(293) Id. at 49-51.

(294) Id. at 10.

(295) Bell & Hanson, supra note 5, at 6.

(296) U.S. NAT'L MARINE FISHERIES SERV., supra note 280, at 14.

(297) 16 U.S.C. [sections] 1531(b) (1994).

(298) See supra note 119 and accompanying text.

(299) See supra note 119 and accompanying text.

ELIZABETH ROSAN, Associate Editor, Environmental Law, 1999-2000, J.D. and Certificate in Environmental and Natural Resources Law expected May 2000, Northwestern School of Law of Lewis & Clark College; B.A. 1994, Williams College. This Comment received the first place award in the 1999 Northwest Water Law and Policy student writing competition. The author wishes to thank Professors Michael Blumm and Dan Rohlf for their invaluable comments and insights on the relationship between the protection of endangered species and the Clean Water Act.