In the last decade the National Marine Fisheries Service (NMFS) has issued an unprecedented number of endangered and threatened salmonid listings(1) under the Endangered Species Act (ESA).(2) These listings affect virtually every major watershed in the Pacific Northwest(3) and are reminders that these water bodies and the species they support are in peril.(4) Such results should come as no surprise, given that over 870 water bodies in the State of Oregon alone fail to meet water quality standards(5) under the Clean Water Act (CWA).(6) While degraded water quality is one of many factors leading to the decline and extinction of salmonid populations,(7) ESA listings expose the failure of the Clean Water Act to achieve its congressionally mandated goal of fishable waters.(8)
ESA listings also raise important liability issues for state agencies administering Clean Water Act programs like the National Pollutant Discharge Elimination System (NPDES) permit program,(9) as well as private actors who must comply with the CWA and the ESA.(10) State agencies responsible for CWA programs face an unusual predicament: they must comply with minimum federal CWA requirements, but their actions are not federal activities triggering ESA consultations.(11) This uneasy duality arises because the Clean Water Act authorizes states to assume responsibility under state laws for water pollution control programs in lieu of programs admirestered by the federal government.(12) One potential result of the CWA's peculiar cooperative federalism structure is that state authorities may issue to private permittees NPDES permits that comply with the CWA but not with the ESA. This anomaly leaves private actors uneasy and uncertain about the duties and liabilities the ESA places on them and their state-issued permits.(13) As more aquatic species are listed under the ESA,(14) it is crucial for federal and state agencies to understand how the ESA and the CWA can complement one another to protect aquatic species and their habitat.
In an effort to provide stronger protection for listed species and to create "greater regulatory predictability for States, Tribes, and the public,"(15) the Environmental Protection Agency (EPA), the Fish and Wildlife Service (FWS), and NMFS developed coordination procedures in several draft Memoranda of Agreements (MOAs) for approving and reviewing state permit and water quality standards programs.(16) Most notably, the draft MOA procedures rely on water quality standards as the vehicle to protect endangered species. To ensure that water quality standards are protective of listed species, the latest draft MOA calls for ESA consultations when EPA triennially reviews state water quality standards.(17) Without a similar federal action triggering mechanism in state permit programs, the draft MOA instead proposes to establish a federal fish and wildlife review of state-issued permits, which must also comply with water quality standards protective of endangered species.(18) While EPA's efforts to take affirmative steps to integrate the complementary goals of the CWA and the ESA are commendable and potentially signal important change, the true measure of success will turn on the actual protection provided by water quality standards to endangered and threatened species.
This Comment evaluates whether EPA's proposed approach to species protection under state-administered Clean Water Act programs is an effective one. As the agency institutes these new procedures in state CWA programs, will ESA consultations ensure that water quality standards--the baseline for state-issued permits--afford endangered and threatened species the level of protection mandated under the ESA? Moreover, will state and federal agencies embrace these material changes to improve water quality in order to meet the needs of endangered species? Part II of this Comment provides the statutory background of the CWA and ESA, …