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

• Author: Rosen, Elizabeth

1. 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.

2. 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.

   1. 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...