Part 1.1.5 of the 2017 CGP requires you to determine your eligibility with regard to protection of threatened and endangered species and designated critical habitat. You must make the determination before you submit a Notice of Intent (NOI) for permit coverage.

• Steps to Determining your Endangered Species Act (ESA) Eligibility under the CGP
• Criteria Determination Flow-Chart
• Documenting Eligibility in the NOI and SWPPP
• U.S. Fish and Wildlife Service (USFWS) Contact
• National Marine Fisheries Service (NMFS) Contact
• Notice on Adverse Incidents

Steps to Determining your Endangered Species Act (ESA) Eligibility under the CGP

Appendix D – Eligibility Procedures Relating to Threatened and Endangered Species Protection – Follow these procedures to assess the effects of your discharges and discharge-related activities on threatened and endangered species (“ESA-listed species”) and designated critical habitat. You must specify the basis for your selection of the applicable eligibility criterion, and if required, provide documentation that is the basis for your determination with the NOI form; and include all documentation supporting your eligibility in your Stormwater Pollution Prevention Plan (SWPPP).

Review this summary of the required steps in Appendix D:

Step 1 - Determine if you are eligible under Criterion B.

• Criterion B: Eligibility requirements met by another operator under the 2017 CGP. The construction site’s discharges and discharge-related activities were already addressed in another operator’s valid certification of eligibility for your “action area” under eligibility Criterion A, C, D, E, or F of the 2017 CGP and you have confirmed that no additional ESA-listed species and/or designated critical habitat under the jurisdiction of USFWS and/or NMFS not considered in that certification may be present or located in the “action area.” To certify your eligibility under this criterion, there must be no lapse of NPDES permit coverage in the other CGP operator’s certification. By certifying eligibility under this criterion, you agree to comply with any conditions upon which the other CGP operator's certification was based. You must include in your NOI the NPDES ID from the other 2017 CGP operator’s notification of authorization under this permit. If your certification is based on another 2017 CGP operator’s certification under criterion C, you must provide EPA with the relevant supporting information required of existing dischargers in criterion C in your NOI form.
• Note: “Action area” is defined as “all areas to be affected directly or indirectly by the discharger and not merely the immediate area involved in the action.” See Appendix A for the full definition.
• If you are not eligible under Criterion B, continue to Step 2.

Step 2 - Determine if ESA-listed species and/or designated critical habitat are present in your “action area.”

• To make this determination, you must use information from BOTH the National Marine Fisheries Service (NMFS) and U.S. Fish and Wildlife Service (USFWS). Both the NMFS and USFWS maintain lists of ESA-listed species and designated critical habitat. Operators must consult both when determining their eligibility.
  Recommended: Identify how you determined the presence/absence of ESA-listed species and designated critical habitat in the basis statement in section VIII of the NOI. For example, in addition to identifying any ESA-specific protective measures or assessments, include a phrase such as: "...used the NMFS CGP waters of concern map..." or "...used IPaC database, results attached to NOI."

1. To check whether your project area discharges to waters where ESA-listed species under NMFS jurisdiction occur, you can either use the NMFS CGP waters of concern map, check the NMFS regional websites identified below, or use information within the official ESA-listing and critical habitat designation notices for species found in your region. (NOTE: Discharges reaching coastal waters of the Pacific Islands may expose and affect ESA-listed coral species.)
   1. To use the NMFS CGP waters of concern map:
      • Open the map application using the link above and zoom to your project site by typing in the city or town your project is in into the search bar at the top center area of the map or by using your mouse to zoom into the region of interest.
      • Use the zoom feature to see the entire extent of your action area on the screen, including the project site and the surrounding area affected by site discharges.
        • For California, Idaho, Oregon, and Washington: ESA-listed species under NMFS' jurisdiction could be exposed to your discharges if they occur within the pink shaded areas or reach waters within the pink shaded areas on the map.
        • For the remaining areas, ESA-listed species under NMFS' jurisdiction could be exposed to discharges reaching waters highlighted by the pink shading on the map.
      • If your project site's discharges overlap with pink shaded areas, go to the NMFS regional websites identified below to identify the species and designated critical habitat that may be exposed to these discharges.
   2. To check NMFS regional websites for information on NMFS' ESA-listed species and designated critical habitat in your project area:
      • For project areas within California, Idaho, Oregon, and Washington, go to the NMFS West Coast Regional Office webpages and species lists.
      • For project areas within Delaware, Massachusetts, New Hampshire, and Washington DC, go to the NMFS Greater Atlantic Regional Field Office webpages and species list (14 pp, 86 K, About PDF).
      • For project areas within Puerto Rico see the NMFS Southeast Regional Office webpages and species list (2 pp, 49 K, About PDF).
      • For project areas within the Pacific Islands and territories see the NMFS Pacific Islands Regional Office webpages.
       

      If you find that ESA-listed species and/or designated critical habitat under NMFS' jurisdiction may be exposed to your discharges, it is helpful to provide satellite/aerial image(s) of your project area(s) with your NOI. You can obtain these from online mappers or use the CGP NMFS waters of concern by using the Instructions for Using the CGP NMFS Waters of Concern Map.



2. To check whether your site discharges to waters where ESA-listed species under USFWS jurisdiction occur, use the on-line mapping tool IPaC (the Information, Planning, and Consultation System) and follow these steps:
   • Select Get Started.
   • Select Enter Project Location: Use an address, city name or other location to zoom into your project area.
   • Use the zoom feature to see the entire extent of your action area on the screen.
   • Use one of the mapping features (e.g., Polygon or line feature) to draw your action.
   • When you are done, press Continue.
   • Select Request an Official Species List.
   • Complete the fields on the Official Species List Request page, and include “(CGP)” at the end of the project description. − For Classification, select “Water Quality Modification”. Select the appropriate requesting agency/organization type (for most dischargers, this should be “Other”).
   • Submit the request to acquire an Official Species List, which should show both listed species as well as any designated critical habitat that are present in the action area in the previous step.
   • Note: If a link to an Official Species List is not available on the page, follow the web link of the office(s) indicated, or contact the office directly by mail or phone if a web link is not shown.

• If you determine that there are no ESA-listed species and/or designated critical habitat in your “action area”, you are eligible under Criterion A.
• If you determine that ESA-listed species and/or designated critical habitat are present in your “action area,” continue to Step 3.

Step 3 - Determine if your discharges are likely to adversely affect ESA-listed species and/or designated critical habitat.

• If you determine that ESA-listed species and/or designated critical habitat are present in your “action area,” you must next assess whether your discharges or discharge-related activities are likely to adversely affect listed threatened or endangered species or designated critical habitat.
• Potential adverse effects from discharges and discharge-related activities include:
  • Hydrological. Stormwater discharges may cause siltation, sedimentation, or induce other changes in receiving waters such as temperature, salinity, or pH. These effects will vary with the amount of stormwater discharged and the volume and condition of the receiving water. Where a stormwater discharge constitutes a minute portion of the total volume of the receiving water, adverse hydrological effects are less likely. Construction activity itself may also alter drainage patterns on a site where construction occurs that can impact listed species or critical habitat.
  • Habitat. Excavation, site development, grading, and other surface disturbance activities from construction activities, including the installation or placement of stormwater controls, may adversely affect listed species or their habitat. Stormwater may drain or inundate listed species habitat.
  • Toxicity. In some cases, pollutants in stormwater may have toxic effects on listed species.
• If you have difficulty determining whether your project is likely to adversely affect ESA-listed species or critical habitat, or if the NMFS and/or USFWS has already raised concerns to you, you should contact the appropriate NMFS and/or USFWS office for assistance (see contact links below).
• If adverse effects to ESA-listed species or their critical habitat are not likely, then are eligible under Criterion C.
• If adverse effects to ESA-listed species or their critical habitat are likely, continue to Step 4.

Step 4 - Determine if you can install appropriate measures to avoid adverse effects.

• If you make a preliminary determination in Step 3 that adverse effects from your construction activity’s discharges or discharge-related activities are likely to occur, you can still receive coverage under eligibility criterion C of the CGP if appropriate measures are undertaken to avoid or eliminate the likelihood of adverse effects prior to applying for CGP coverage. These measures may involve relatively simple changes to construction activities such as re-routing a stormwater discharge to bypass an area where species are located, relocating stormwater controls, or by modifying the “footprint” of the construction activity.
• If you are able to install and implement appropriate measures to avoid the likelihood of adverse effects, you are eligible under Criterion C.
• If you cannot determine which measures to implement to avoid the likelihood of adverse effects, continue to Step 5.

Step 5 - Determine if you are eligible under Criterion D, E or F.

• If in Step 4 you cannot ascertain which measures to implement to avoid the likelihood of adverse effects, you must contact the USFWS and/or the NMFS (see contact links below). You may still be eligible for CGP coverage if likely adverse effects can be addressed through meeting Criterion D, E, or F.
  • Criterion D: Coordination with USFWS and/or NMFS has successfully concluded. Coordination between you and the USFWS and/or NMFS has concluded. The coordination must have addressed the effects of your site’s discharges and discharge-related activities on ESA-listed species and/or designated critical habitat under the jurisdiction of USFWS and/or NMFS, and resulted in a written concurrence from USFWS and/or NMFS that your site’s discharges and discharge-related activities are not likely to adversely affect listed species and/or critical habitat. You must include copies of the correspondence with the participating agencies in your SWPPP and this NOI.
  • Criterion E: ESA Section 7 consultation has successfully concluded. Consultation between a federal agency and the USFWS and/or NMFS under section 7 of the ESA has concluded. The consultation must have addressed the effects of the construction site’s discharges and discharge-related activities on ESA-listed species and/or designated critical habitat under the jurisdiction of USFWS and/or NMFS. To certify eligibility under this criterion, indicate the result of the consultation: I. biological opinion from USFWS and/or NMFS that concludes that the action in question (taking into account the effects of your site’s discharges and discharge-related activities) is not likely to jeopardize the continued existence of listed species, nor the destruction or adverse modification of critical habitat; or II. written concurrence from USFWS and/or NMFS with a finding that the site’s discharges and discharge-related activities are not likely to adversely affect ESA-listed species and/or designated critical habitat. You must include copies of the correspondence between you and the USFWS and/or NMFS in your SWPPP and this NOI.
  • Criterion F: Issuance of section 10 permit. Potential take is authorized through the issuance of a permit under section 10 of the ESA by the USFWS and/or NMFS, and this authorization addresses the effects of the site’s discharges and discharge-related activities on ESA-listed species and designated critical habitat. You must include copies of the correspondence between you and the participating agencies in your SWPPP and your NOI.

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Determination Flow-Chart

To further assist operators, EPA created a summary flow-chart that provides an at-a-glance guide for determining ESA eligibility criteria under the CGP. This flow-chart should be used as an additional resources and is not a substitute for following the full procedures outlined in Appendix D.

Documenting Eligibility in the NOI and SWPPP

For all eligibility criteria (criteria A, B, C, D, E, and F):

• In your NOI form, identify the criterion you are eligible under and provide the necessary content for a supportive basis statement (the required content is detailed in Appendix D and the NOI form).
• Include all documentation supporting your eligibility determination in your SWPPP.

Go to CGP-NeT to complete your NOI for permit coverage.

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U.S. Fish and Wildlife Service Contact

• FWS Regional Contact List

National Marine Fisheries Service Contact

• NMFS West Coast Regional Office
• NMFS Greater Atlantic Regional Field Office
• NMFS Southeast Regional Office
• NMFS Pacific Islands Regional Office

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Notice on Adverse Incidents

Notwithstanding any of the other corrective action trigger and notification requirements, if you become aware of an adverse incident affecting a ESA-listed species or its designated critical habitat, which may have resulted from a discharge from your construction site, in addition to your obligation to notify EPA (see Part I.12.6 in Appendix I), it is in your best interest to immediately notify NMFS if the case involves an anadromous or marine species under NMFS’ jurisdiction. This notification should be made by telephone and email addresses, to the contacts listed in the above contact information, immediately upon becoming aware of the adverse incident, and should include at least the following information:

• The caller’s name and telephone number,
• Operator name and mailing address,
• The name of the affected species,
• How and when the Operator became aware of the adverse incident,
• Description of the location of the adverse incident,
• Description of the adverse incident, and
• Description of any steps the Operator has taken or will take to alleviate the adverse impact to the species.

Additional information on ESA-listed species and designated critical habitat is available from NMFS for anadromous or marine species. Note: In an adverse incident affecting ESA-listed species or designated critical habitat, you should leave the affected organisms alone, make note of any circumstances likely causing the death or injury, note the location and number or extent of aquatic organisms involved and, if possible, take photographs. In some circumstances, you may be asked to carry out instructions provided by the NMFS to collect specimens or take other measures to ensure that evidence intrinsic to the specimen is preserved.

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