Association Weighs in on ESA Interagency Cooperation Rulemaking

rules(September 25, 2018) – NACWA recently submitted comments on a proposed rulemaking by the US Fish and Wildlife Services (FWS) and the National Marine Fisheries Service (NMFS) that would revise the Endangered Species Act (ESA).  As outlined in the comments, NACWA believes these changes would benefit member agencies with a more efficient process in relevant regulatory activities, such as reviews of water quality standards.

On July 25, 2018, FWS and NMFS proposed three rulemakings that would revise various aspects of the ESA, and of the three proposals, NACWA submitted comments on Revisions of Regulations for Interagency Cooperation. This proposed rulemaking specifically aims to improve the ESA’s interagency consultation processes and make the them more efficient and consistent.

There are a variety of instances when the clean water community encounters ESA obligations. A particularly relevant instance for clean water utilities occurs when EPA conducts triennial review of state and tribal water quality standards—triggering an informal or formal consultation process under Section 7(a)(2) of the ESA. Currently, there is no deadline to complete informal consultations. The proposed rule offers to add a 60-day deadline which NACWA supports. In addition, the proposed rule seeks to identify what documentation is necessary when initiating a formal consultation. If more clarity is provided at the outset of formal consultations, the process will be less confusing and more systematic and straightforward.

The issue of ESA review continues to be an important consideration for clean water utilities, especially as NACWA members face increased challenges with siting new facilities or expanding existing treatment plants. These challenges underscore the need for improved efficacy and clarity when implementing various provisions of the ESA.

Contact Emily Remmel, NACWA’s Regulatory Director, to discuss further.