Addendum A of the NPDES General Permit for Stormwater Discharges from Small MS4s contains guidance for meeting the requirement of endangered species protection. MassDEP has summarized Addendum A but recommends applicants read the entire permit and appendices.
EPA is obligated by the Endangered Species Act (ESA) to issue a permit that does not adversely affect Federal listed endangered and threatened species and critical habitat. EPA passes on those requirements to permittees by having them certify at the time the NOI is filed, and throughout the implementation of the stormwater management program, that none of their stormwater discharges, allowable non-stormwater discharges, of discharge related activities will likely impact Federal threatened or endangered species.
The act of certification requires the permittee to look at five Criteria listed in the general permit, at Part I, B (2) (e), and choose which one identifies the action the permittee took at the time of filing the NOI. If not all the outfalls have been identified at the time of filing the NOI, permittees must remember to meet the ESA requirements throughout the implementation of the stormwater program and document which criteria was chosen and why.
The permittee may have to consult with the U.S Fisheries and Wildlife Service (US FWS) for assistance in making its determination. The permittee should always document for their files how the determination of eligibility was reached.
A. How to Get Started
1. To determine eligibility, both at the time the NOI is filed and throughout the implementation of your stormwater management program as outfalls are identified, you must know the following:
- Where your discharge outlets are located
- If any Endangered Species and Critical Habitat are in your county and in proximity to your MS4 or discharge locations
2. Start by checking whether any discharges from your MS4 system are to the water body locations listed below. Discharges to these water bodies require consultations with the appropriate US FWS and/or National Marine Fisheries office because of the possible impacts to the short-nose sturgeon and dwarf wedge mussels. These species have been specifically identified as needing protection.
- Consult the US FWS, Hadley, MA at 413-253-8200, or email, Web site and/or
- Marine Fisheries: Gloucester, at 978-281-9300
3. Specific Species Sited as Needing Special Protection
- Short-nose sturgeon:
Connecticut River: main stem, downstream from Turner's Falls, MA
Merrimac River: Below Lawrence Dam
- Dwarf wedge mussel:
Mill River, approximately 5 miles in Whatley, MA and Hatfield, MA as well as 1-2 miles along the Mill River Diversion in Northampton, MA
B. Are Listed Species and Critical Habitat Near my MS4 or Discharge Locations?
Federal endangered species information is listed by county. To determine the species in your county, check the websites listed below or call US FWS at 413-253-8200. If you are located close to the border of a county or your MS4 is located in one county and your discharge points are in another, you must look under both counties.
Websites for Federal Listed Endangered Species
- EPA's county list: website
- US Fish and Wildlife's website or call US FWS, Hadley, MA 413-253-8200
- Also check the Marine Fisheries website or call Marine Fisheries: Gloucester, 978-281-9300
If there are listed species in your county, consult with US FWS, Hadley, MA at 413-253-8200, to determine whether your located discharge locations may cause adverse affects to the listed species or critical areas.
- Adverse affects include hydrological, habitat, and toxicity.
- Hydrological: siltation, sedimentation, temp, salinity, pH
- Habitat: excavation, grading, site development, surface disturbance, installing BMPs, ponds can disturb habitat. Stormwater can inundate or drain species habitat.
- Toxicity: pollutants in stormwater may have toxic affects on species.
C. Choosing Eligibility Criteria
When you identify your discharge locations and check for the proximity of listed species and critical habitat, you must decide which eligibility criteria you meet. You should document for your files the results of how you made the criteria determinations and answer "Yes", "No" or "Pending" on the NOI forms if you have met the criteria as follows:
Criteria A. If no species or critical habitats are near the MS4 or discharge points to surface waters, you meet criteria A.
Criteria B. Choose Criteria B if, in a separate action involving the MS4 took place (new source review under the National Environmental Policy Act (NEPA), CWA Sec. 404 dredge/fill permit, or individual NPDES permit) involving a consultation by FWS and/or Marine Fisheries, which addressed the effects of the discharges, and FWS issued a no jeopardy opinion or written concurrence that no adverse affect is likely.
Criteria C. You meet Criteria C if the US FWS has already issued you a Incidental Take Permit (according to Sec. 10 of the ESA), which allows you to proceed with an activity that would otherwise have resulted in an illegal harming of a listed species. This authorization by the US FWS would have required considerable interaction with the US FWS and the filing of a Habitat Conservation Plan by the applicant. The plan would have been designed to offset any harmful effects the proposed activity might have on listed species.
Criteria D. You meet Criteria D if you have done the following:
- used the best scientific and commercial data available and/or have consulted with US FWS, and determined that discharges are not likely to affect species and habitat, or;
- reached an agreement with US FWS on measures to avoid, eliminate or minimize adverse affects.
Criteria E. You can meet Criteria E if another operator certified ESA eligibility for a location of your MS4 and considered all listed species and habitat in discharge related areas. You must agree to implement all measures already outlined in the existing certification.
D. Documenting Eligibility Criteria Determinations
Don't forget to document results of the eligibility criteria determination and the finding that support it. Save the following information:
- The species list, where your MS4 and discharges are located
- Information showing no species or habitat near your system
- The FWS bio opinion and determination
- The FWS letter with Sec. 10 authorization
- How you determined no adverse effects on species and habitat or the agreement reached with US FWS outlining what measures you could implement to avoid, eliminate or minimize adverse effects
- The documents used by a previous owner of the MS4 (or area in MS4) to satisfy documentation of Criteria A, B, C, D