Agency Activities

James M. Stuhltrager
Mid-Atlantic Environmental Law Center

On February 22, 2001, the Environmental Protection Agency (EPA), the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) announced that they signed a Memorandum of Agreement (MOA) "designed to enhance coordination" between the agencies during ESA Section 7 consultation on EPA's promulgation of water quality standards (WQS), review of State and Tribal WQS, and approval of State or Tribal assumption of National Pollution Discharge Elimination System (NPDES) permitting programs. 66 Fed. Reg. 11202 (February 22, 2001).

The MOA provides a framework for completing work on a Section 7 consultation backlog involving EPA promulgation of aquatic life water quality criteria for 45 pollutants. The MOA also commits EPA to propose amendments to its WQS regulations (40 C.F.R. Part 131) to include specific provisions for the protection of threatened or endangered species and their critical habitat. Specifically, EPA commits to include in the proposal a prohibition on the use of "mixing zones" and variances that would be likely to jeopardize a listed species.

In addition to the national Section 7 consultation and rulemaking, the MOA also outlines the ongoing ESA/CWA relationship and respective roles of the agencies during EPA review of State and Tribal WQS and State and Tribal NPDES permitting programs.

FWS Announces New 4(d) Rule Regulating the Take of Preble's Meadow Jumping Mouse

Sean Skaggs

On May 22, 2001, the Fish and Wildlife Service (FWS) issued final special regulations under section 4(d) of the Endangered Species Act (ESA) for the Preble's meadow jumping mouse. 66 Fed. Reg. 28125 (May 22, 2001). The Preble's is a threatened species that occurs in riparian areas along the Front Range of Colorado. The special rule is designed to provide temporary Section 9 take exemption for a limited set of activities during the pendency of regional Habitat Conservation Plan (HCP) development. The special rule is set to expire 36 months from the date of promulgation.

FWS created four categories to be exempt from the Section 9 take prohibitions. The four categories are: 1) rodent control within 10 feet of or inside of any structure, 2) ongoing agricultural activities (defined as existing in 1998 at the time of species listing), 3) maintenance and replacement of existing landscaping and related structures and improvement and 4) existing use of water associated with the exercise of perfected water rights. FWS stated that one purpose of the special rule was to make advance general decisions that certain common activities do not need Section 10 permits because the impacts to the species are minimal. In response to public comments that noted that it made little sense to exempt agricultural activities and use of water, but not the maintenance of water supply ditches, FWS stated that it was considering an amendment to the rule to add an exemption for certain maintenance practices on water supply ditches.