State/Tribal Permitting Programs Sample Clauses

State/Tribal Permitting Programs. The final MOA addresses the procedures that we will follow in overseeing the operation of State/Tribal NPDES permits to ensure that listed species and critical habitats are protected. Several commenters raised concerns that the coordination process described in the MOA was equivalent to the section 7 consultation process. This is incorrect. Section 7 consultations are governed by the specific procedures contained in 50 CFR part 402. The coordination procedures in the MOA do not track the consultation process. Rather, the coordination procedures simply outline the interaction that we envision between EPA, the Services and the State/Tribe should a particular permit raise issues of concern for listed species. The MOA also makes clear that EPA’s oversight of State/Tribal permits will continue to be governed by EPA’s CWA authorities. For example, EPA may only object to a permit that is ‘‘outside the guidelines and requirements’’ of the CWA as provided in section 402(d) of the CWA. We are confident that EPA’s CWA authorities are sufficiently broad and the MOA sufficiently flexible to address the broad range of situations that arise in the NPDES program. Some commenters expressed concerns that the permit coordination procedures not be used to ‘‘force’’ States and Tribes to undertake activities not otherwise required by the CWA. As stated previously, the MOA only provides internal procedural guidance for EPA and the Services and does not impose any requirements on States and Tribes. States and Tribes are specifically directed by current EPA regulations under the CWA to provide the Services with copies of draft NPDES permits, and they must consider and respond to any significant comments by any party, including comments provided by the Services. See 40 CFR §§ 124.10(c)(iv) and (e); 124.11; 124.17. See also 40 CFR § 124.59(b) and (c) (addressing consideration of Service comments and coordination between the permitting authority and the Services). The MOA does not augment these existing obligations, but is intended to facilitate the delivery of comments by the Services and EPA to States and Tribes, and the consideration of those comments in the permitting process. One commenter argued that the MOA was inconsistent with the decision in AFPA v. EPA 137 F.3d 291 (5th Cir. 1998) because, while it does not place conditions on approval of State NPDES programs, it nonetheless places conditions on ‘‘approval’’ of State permits. This contention is incorrect. First, EPA does n...
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