Fish & Wildlife Service Advises EPA Region 9 That Groundwater Pumping and Related Impacts Caused by Urban Growth Are Effects of Storm Water Discharge Permits

Norman D. James
Fennemore Craig

In a letter written to Region 9 of the Environmental Protection Agency (EPA), the Fish and Wildlife Service (FWS) has stated that consultation under Section 7 of the Endangered Species Act (ESA) is necessary regarding the Region’s general permit for storm water discharges from construction activities (CGP), and other permits issued under Section 402 of the Clean Water Act, based on increased water use and other impacts resulting from urban growth. The letter, written in April 2000 by the Field Supervisor of the Arizona Ecological Services Field Office in Phoenix, focuses on private development activities in Sierra Vista, Arizona. According to FWS, EPA must consider potential indirect effects such as increased groundwater pumping by local utilities in determining whether an applicant qualifies for coverage under the CGP. The analysis in the letter would virtually guarantee a "may affect" determination, regardless of whether the applicant’s storm water discharges and related activities (e.g., storm water management measures) would actually impact listed species or critical habitat.

Sierra Vista is a community of approximately 40,000 people with an incorporated area of 130 square miles. It is located approximately 75 miles southeast of Tucson, and is adjacent to Fort Huachuca, a U.S. Army installation. Sierra Vista is a commercial center for Cochise County and parts of northern Mexico. The area’s temperate climate, strong local economy and recreational opportunities have caused the city to grow rapidly over the past 20 years.

The Service’s concerns relate primarily to the San Pedro River, which is located several miles east of Sierra Vista and provides riparian habitat for some 400 bird species. The river contains designated critical habitat for several listed species, including the southwestern willow flycatcher, the loach minnow and the spikedace. In order to provide long-term protection for this segment of the San Pedro, Congress established the San Pedro Riparian National Conservation Area in 1988. Groundwater pumping in the vicinity of Sierra Vista and Fort Huachuca has been cited by environmental organizations as a major threat to the long-term viability of the San Pedro ecosystem.

In his letter to EPA, the Service’s Field Supervisor expressed concern that "[CGPs] and point [source] discharge permits may be issued for housing development projects that will increase domestic water consumption or degrade watershed condition and water quality without full evaluation of effects to listed species and critical habitat." The Field Supervisor went on to emphasize that "particular attention should be paid to consumptive water use and effects of such use on the regional groundwater aquifer and the upper San Pedro River" when determining effects resulting from the permit.

In the Service’s view, increased groundwater pumping by local utilities to serve new homeowners constitutes either an "interrelated" or an "interdependent" action, the effects of which must be considered in conjunction with determining whether an applicant may receive coverage under the Region’s CGP. As explained by the Service:

Because waste water treatment and storm water discharge are integral parts of most developments, if a development includes groundwater use, that use likely would not occur but for the issuance of a NPDES permit from your agency. Thus, the effects of NPDES permit issuance may include the effects of groundwater use by the development because groundwater use is interrelated and interdependent to permit issuance.

The Service thus views the issuance of a permit or, more precisely, coverage under the CGP as being so integrally related to the private development that all impacts associated with the development must be evaluated. In reaching this conclusion, the Service relies on an extremely attenuated "but for" analysis, under which any effect resulting from the development is attributable to issuance of the permit, regardless of the permit’s purpose and the issuing agency’s jurisdiction.

The Service’s ultimate goal is apparently to force a programmatic consultation with Region 9 that would deal with all NPDES permits issued in the upper San Pedro River basin, including CGP coverage determinations. In the concluding paragraph of that letter, the Field Supervisor expressed his belief that "standard formulas could be devised for most permits to calculate effects and determine appropriate mitigation, if necessary." In other words, the Service would issue a biological opinion containing reasonable and prudent alternatives (RPAs) to avoid jeopardy. The RPAs would presumably contain various restrictions and requirements that, for example, would limit homeowners’ water consumption or allow only low density development. The letter does not address the issue of whether EPA, in connection with regulating storm water discharges from construction sites, would have jurisdiction to impose these types of conditions in a permit. Arguably, such jurisdiction would not exist. See American Forest and Paper Ass’n v. U.S. Environmental Protection Agency, 137 F.3d 291, 297-99 (5^th Cir. 1998) (holding that EPA cannot invoke the ESA as a means of creating and imposing requirements that are not authorized by the Clean Water Act).

At this time, it is uncertain what, if any, action Region 9 has taken in response to the Service’s letter. However, the analysis employed by the Service and the Service’s apparent desire to compel a sister agency to use its permitting authority to restrict private land use activities is disturbing. Moreover, these sorts of conflicts are likely to increase. In recent years, species have been listed by the Service and the National Marine Fisheries Service that may be found in areas that are growth corridors for urban areas, such as the coastal California gnatcatcher and the cactus ferruginous pygmy owl. At the same time, regulatory programs administered by other Federal agencies, such as EPA’s regulation of storm water discharges, are continuing to expand. In the southwestern United States, for example, most real estate developments require some sort of permit under the Clean Water Act, potentially triggering consultation under Section 7 of the ESA. When these regulatory developments are combined with an extreme effects analysis, such as the example discussed above, the Services effectively become super zoning authorities.