Background

Section 9 of the Endangered Species Act (ESA) prohibits take (e.g., harm or harassment) of ESA-listed species.

Part 1.1.5 and Appendix D of the 2022 Construction General Permit (CGP) require you to determine your eligibility with regard to protection of threatened and endangered species and designated critical habitat. You must make this determination before you submit a Notice of Intent (NOI) for permit coverage. Take note of the criterion (A, B, C, D, E or F) under which you are eligible because you will need to select this and provide supporting documentation in your NOI.

Action area under EPA’s CGP

When evaluating the potential effects of your activities, you must consider effects to listed species or critical habitats within the “action area” of your construction activity, as identified by the U.S. Fish and Wildlife Service (USFWS) IPaC and/or the National Oceanic and Atmospheric Administration (NOAA) website resources.

“Action Area” – All areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action. See 50 CFR 402. For the purposes of this permit and for application of the threatened and endangered species protection eligibility requirements, the following areas are included in the definition of action area:

The areas on the construction site where stormwater discharges originate and flow toward the point of discharge into the receiving waters. This includes: areas on the construction site where excavation, site development, or other ground disturbance activities occur; and areas where stormwater controls will be constructed and operated, including any areas where stormwater flows to and from the stormwater controls and the immediate vicinity.

The areas in the vicinity of the construction site where stormwater discharges flow from the construction site to one or more points of discharge into receiving waters. (Example: Where stormwater flows into a ditch, swale, or gully that leads to receiving waters.)

The extent of the receiving water potentially affected by stormwater discharges from your construction site through alteration of water chemistry, turbidity, temperature, or bank structure (i.e., erosive flow), regardless of whether the construction site is adjacent to the receiving water.

Notice on Adverse

Incidents Notwithstanding any of the other corrective action trigger and notification requirements, if an operator becomes aware of an adverse incident affecting a Federally-listed threatened or endangered species or its federally designated critical habitat, which may have resulted from a discharge from the operator’s construction site, in addition to the obligation to notify EPA (see Appendix I of the CGP), it is in the best interest of the operator to immediately notify National Marine Fisheries Service (NMFS) if the case involves an anadromous or marine species under NMFS’ jurisdiction, as applicable. This notification should be made by telephone and email addresses, to the contacts listed on NMFS’ website, immediately upon the operator becoming aware of the adverse incident, and should include at least the following information:

• Caller’s name and telephone number
• Operator name and mailing address
• 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
• Description of any steps the operator has taken or will take to alleviate the adverse impact to the species.

In an adverse incident affecting Federally-listed threatened or endangered species or designated critical habitat, the operator 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, the operator 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.

Applicable laws & regulations

50 CFR 402 — Interagency cooperation — Endangered Species Act of 1973, as amended

16 U.S.C. 1538 — Prohibited acts

Part 1.1.5 and Appendix D of the 2022 Construction General Permit (CGP)

Related definitions

"Critical habitat" is the specific habitat designated as necessary to support the recovery of species listed under the ESA.

Penalties

The Clean Water Act provides that any person who negligently violates permit conditions implementing Sections 301, 302, 306, 307, 308, 318, or 405 of the Act is subject to criminal penalties of not less than $2,500 nor more than $25,000 per day of violation, or imprisonment of not more than one year, or both. In the case of a second or subsequent conviction for a negligent violation, a person shall be subject to criminal penalties of not more than $50,000 per day of violation or by imprisonment of not more than two years, or both.

Key to remember

The CGP requires you to determine your eligibility with regard to protection of threatened and endangered species and designated critical habitat .When evaluating the potential effects of your activities, you must consider effects to listed species or critical habitats within the “action area” of your construction activity.