How 316(b) Protects Threatened and Endangered Species

In conjunction with the promulgation of the Clean Water Act 316(b) rule, the U.S Environmental Protection Agency (EPA) consulted jointly with U.S. Fish and Wildlife Service and National Marine Fisheries Service (the Services) pursuant to Section 7 of the Endangered Species Act (ESA).  On May 19, 2014, EPA finalized its rule and the Services issued the final Biological Opinion (Opinion).  The Opinion describes the technical assistance process that must be followed by EPA Regional Administrator and/or State Director (Director) to allow continued operation of a facility to be exempt from the take prohibitions in ESA Section 9.  Generally, the technical assistance process allows the Services to review National Pollutant Discharge Elimination System permit applications and draft permits and to suggest control measures, including monitoring and reporting requirements, to minimize incidental take of listed species and adverse modification of designated critical habitat.  On December 11, 2014, EPA issued an instructional memorandum regarding implementation of the technical assistance process between the Services and the Directors as required by the Opinion.  This presentation will discuss details of the technical assistance process, applicability of ESA Section 10 permitting requirements to 316(b) studies, and the Services’ interest in assisting with study designs.