Construction General Permit Threatened and Endangered Species

Scope

The ESA is not an Environmental Protection Agency (EPA) requirement, but it is included as part of the EPA stormwater Construction General Permit (CGP) requirements. Because of this, it is important to the construction industry.

The ESA usually applies to construction activities under three situations:

1. Construction activities under EPA’s CGP,
2. Actions funded or permitted by federal agencies (other than the CGP) for a construction project, or
3. Construction activities that impact a listed species and/or critical habitat.

Regulatory citations

• 50 CFR 17 — Endangered and threatened wildlife and plants
• 50 CFR 226 — Designated critical habitat
• 50 CFR 402— Interagency cooperation — Endangered Species Act of 1973, as amended
• 16 USC 1531-1544 — Endangered species

Key definitions

• Critical habitat: The specific areas within the geographical area currently occupied by a species, at the time it is listed in accordance with biological features necessary for the conservation of the species and that may require special management considerations, and specific areas outside the geographical area occupied by a species at the time it is listed upon determination by the Secretary that such areas are necessary for the conservation of the species.
• Endangered species: At risk of extinction throughout all or a significant portion of its range.
• Harm: In the definition of “take” in the Act means an act which kills or injures wildlife. Such act may include significant habitat modification or degradation where it kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.
• Take: To harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
• Threatened species: Likely to become endangered in the foreseeable future.

Summary of requirements

Part 1.1.5 and Appendix D of the 2022 CGP require you to determine your eligibility regarding 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.

Conclude if a listed species is present. You must determine, to the best of your knowledge, whether listed species are located on or near your project area. To make this determination, you should:

• Determine if listed species are in your county or township. The local offices of the U.S. Fish and Wildlife Service (FWS), National Marine Fisheries Service (NMFS), and State or Tribal Heritage Centers often maintain lists of federally listed endangered or threatened species online.
• If there are listed species in your county or township, check to see if critical habitat has been designated and if that area overlaps or is near your project area.

Determine if the construction activity’s discharges will negatively affect listed species or habitat. Potential adverse effects from stormwater discharges and stormwater discharge-related activities include:

• A change in siltation, sedimentation, other changes in receiving waters such as temperature, salinity, or pH.
• Excavation, site development, and grading from construction activities, may adversely affect listed species or their habitat. Stormwater may drain or flood a listed species habitat.
• In some cases, pollutants in stormwater may have toxic effects on listed species.

Identify possible measures to avoid negative effects. If you adopt measures to avoid or eliminate adverse effects, you must continue to abide by those measures for the whole construction project and coverage under the CGP. These measures must be described in the Stormwater Pollution Prevention Plan (SWPPP) and are enforceable CGP conditions for meeting the eligibility criteria in Subpart 1.3.

Decide if eligibility requirements of the CGP can be met:

• Contact FWS and/or NMFS to initiate a formal or informal ESA Section 7 consultation. This is done to address the effects of your activities on listed species and critical habitat.
• Your construction activities can be authorized through the issuance of a permit under Section 10 of the ESA that addresses the effects of your stormwater discharge(s) and stormwater discharge-related activities on federally listed species and designated critical habitat.
• Your stormwater discharges and stormwater-discharge-related activities may already be addressed in another operator’s certification of eligibility, which also included your project area.