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United States Department of the Interior U.S. Fish and Wildlife United States Department of the Interior U.S. Fish and Wildlife Service 2321 West Royal Palm Road, Suite 103 Phoenix, Arizona 85021 Telephone: (602) 242-0210 FAX: (602) 242-2513 AESO/SE 02-21-02-F-0504 June 21, 2004 Mr. Doug Eberhardt Clean Water Act Standards and Permits Office (WTR-5) U.S. Environmental Protection Agency, Region IX 75 Hawthorne Street San Francisco, California 94105 Dear Mr. Eberhardt: This constitutes the U.S. Fish and Wildlife Service’s (FWS) biological and conference opinion (BO) pursuant to section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531-1544), as amended (Act), on the effects of the U.S. Environmental Protection Agency’s (EPA) approval of the State of Arizona’s proposed revisions to existing Water Quality Standards (WQS) for Surface Waters as submitted by the Arizona Department of Environmental Quality (ADEQ) on January 16, 2002. ADEQ’s final rule results from the required State triennial review and revision process pursuant to 40 CFR §131.20 and the Clean Water Act. All of the proposed or listed threatened and endangered species and their designated or proposed critical habitats in, adjacent to, or dependent on, surface waters in Arizona are considered in this biological opinion and are referenced in Appendix 1. Although EPA requested consultation on the whooping crane (Grus americana), the whooping crane is not currently known to occur in Arizona and is not considered in this BO. This BO is based on information provided in the September 18, 2002 biological evaluation (BE), ADEQ Final Rule dated January 16, 2002, telephone conversations between us and EPA and/or ADEQ, meetings, and other sources of information. Literature cited in this BO is not a complete bibliography of all literature available on the species of concern, or on other subjects considered in this opinion. A complete administrative record of this consultation is on file at Arizona Ecological Services Field Office in Phoenix, Arizona. Mr. Doug Eberhardt 2 Consultation History January 10, 1992: ADEQ completed a water-quality standard program revision. February 18, 1992: ADEQ adopted and submitted water quality standards to EPA. May 21, 1993: EPA initiated formal consultation with this office pursuant to Section 7 of the ESA, which was the first programmatic consultation on the Arizona WQS. February 16, 1996: We completed the biological opinion on the first programmatic consultation on the Arizona WQS. April 26, 1996: ADEQ submitted further revisions to the WQS to the EPA. June 27, 1996: EPA initiated section 7 consultation on the 1996 WQS revisions. December 11, 1998: We issued a biological opinion on the 1996 WQS revisions. May 21, 2001: ADEQ transmitted to this office two copies of ADEQ’s draft proposed revisions to the Surface WQS rules. January 16, 2002: ADEQ issued “Notice of Final Rulemaking; Title 18. Environmental Quality; Chapter 11. Department of Environmental Quality Water Quality Standards”. March 28, 2002: ADEQ transmitted to EPA Region 9 their submission of revised water quality standards as required by 40 CFR §131.6 (triennial review process). September 18, 2002: ADEQ transmitted to EPA a proposed schedule by which ADEQ will develop implementation procedures for antidegredation, narrative toxics standard, narrative bottom deposits/sediment standard, and narrative nutrients standard. This correspondence also expressed ADEQ’s intent to revise certain standards in a supplemental rulemaking, after the current triennial review process is completed. September 18, 2002: EPA transmitted a letter and a Biological Evaluation (BE) to us which requested concurrence under section 7 of the Act for the approval of ADEQ’s Water Quality Standards for Surface Waters final rule dated January 16, 2002. EPA determined the proposed action “may affect, but is not likely to adversely affect” 31 federally-listed or proposed species (associated with aquatic habitats statewide) or their designated or proposed critical habitat. October 22, 2002: EPA transmitted letter of approval to ADEQ regarding ADEQ’s revisions to surface WQS with the exception of those revisions formally submitted for EPA review in a subsequent, supplemental rulemaking. Mr. Doug Eberhardt 3 October 22, 2002: We transmitted a letter to EPA acknowledging their request for concurrence under section 7 of the Act but did not provide concurrence with EPA’s “is not likely to adversely affect” determination and requested further information prior to initiation of formal section 7 consultation in accordance with 50 CFR §402.14(c). This correspondence also requested that EPA reinitiate section 7 consultation on potential effects of ADEQ’s existing surface WQS on the newly listed threatened Chiricahua leopard frog. December 16, 2002: EPA transmitted a letter to this office declining our request for reinitiation of section 7 consultation on potential effects of ADEQ’s existing surface WQS on the Chiricahua leopard frog. EPA based their decision on conditions set forth in the National Memorandum of Agreement between EPA, FWS, and NMFS Regarding Enhanced Coordination Under the Clean Water Act and Endangered Species Act. This correspondence also requested initiation of formal consultation on this current proposed action. January 14, 2003: We transmitted a letter to EPA requesting further information. Specifically, we requested that EPA analyze the effects of relaxing the numeric water quality standards for 11 chemical constituents from the reclassification in designated uses of 26 streams in 5 drainage basins from Aquatic and Wildlife cold water (A&Wc) to Aquatic and Wildlife warm water (A&Ww). March 19, 2003: EPA transmitted a letter to this office which amended their effects determination for all species with respect to revised rules R18-11-101 (Definitions #7 and #10), R18-11-105 (Tributaries; Designated Uses #2 and #3), and Appendix B to R18-11-101 et seq. which is the “List of Surface Waters and Designated Uses”. The EPA changed the determination from “may affect, not likely to adversely affect” to “no effect” citing the rationale that the applicable species listed in Appendix 1: 1) have been known to previously exist at elevations below 5000 feet; 2) have been known to occur in or around streams previously designated as A&Ww by ADEQ; 3) are classified as warm water taxa; and 4) are known to be tolerant of fluctuations in temperature or habitat types. April 23, 2003: We transmitted a letter to EPA which acknowledges the amendment made in their effects determinations discussed above and initiated formal consultation on the remainder of the project. September 17, 2003: A meeting was held between representatives from the EPA, ADEQ, and us regarding coordination during section 7 consultation as well as various aspects of the this BO (in draft form at the time of the meeting). In this meeting, EPA agreed to amend their BE to incorporate specific conservation measures. October 27, 2003: ADEQ transmitted a letter to EPA pursuant to a request made for such during the September 17, 2003 meeting. The letter discussed issues pertaining to the proposed suspended sediment concentration standard replacing the turbidity standard and the actions ADEQ is willing to take to address potential adverse effects of the new standard. Mr. Doug Eberhardt 4 November 06, 2003: EPA transmitted a letter to us which included an addendum to the September 18, 2002 BE which established conservation measures or Reasonable and Prudent Measures (depending on whether an Incidental Take Permit is issued) that ADEQ suggested in their October 27, 2003 letter. January 02, 2004: We transmitted a draft BO opinion to EPA for review. January 20, 2004: EPA provided comments on the draft BO. January 20 - June 16, 2004: Negotiations were held and consensus reached between involved parties regarding the Incidental Take Statement in its draft form. BIOLOGICAL OPINION Description of the Proposed Action Section 303 of the Clean Water Act (CWA) requires States to develop water quality standards which are designed to protect the public health or welfare, enhance the quality of water, and serve the purposes of the CWA. Water quality standards consist of : 1) designated uses of waterways (e.g., protection and propagation of fish, shellfish, and wildlife); 2) criteria which will ensure the protection of designated uses; and 3) an anti-degradation policy that protects existing uses and provides a mechanism for maintenance of high water quality. The CWA directs States to take into consideration, among other things, the “propagation of fish and wildlife” when revising or adopting WQS (33 U.S.C. § 1313(c)(2)(A)). Pursuant to section 303(c)(1) of the Clean Water Act (CWA), States must review their water quality standards at least once every three years and revise them where it is appropriate to do so. Under the Arizona Revised Statutes (A.R.S.) §49-202(A), ADEQ is responsible for conducting the review of Arizona’s water quality standards, holding public hearings, and, as appropriate, revising and adopting standards every three years as part of a continuing triennial review process. Results of such reviews are submitted to EPA, pursuant to CWA section 303(c)(2)(A). The revised or new water quality standards consist of the designated uses of surface waters and the water quality criteria for such waters. Such standards should provide protection for both human health and aquatic life. Section 303(c)(2)(B) of the CWA requires the State to adopt numeric criteria for all toxic pollutants listed pursuant to the CWA section 307(a)(1) for which criteria have been published under section 304(a). Under section 304(a), EPA has produced a series of scientific water quality criteria guidance documents which are considered when adopting regulatory criteria. Pursuant to section 303(c)(3) of the CWA, the EPA approves and/or disapproves all or portions of Arizona’s revised or new water quality standards.
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