Request for Comment on Whether EPA’s Approval of a Clean Water Act Section 404 Program Is NonDiscretionary for Purposes of Endangered Species Act Section 7 Consultation (pdf) (242.2 KB, May 21, 2020, Docket ID No.Thus, EPA will consult on the approval under Section 7 of the Endangered Species Act Section, if such approval may affect ESA-listed species. Memorandum stating EPA has determined we have discretion when approving state and tribal requests to assume a Clean Water Act Section 404 program. Memorandum on Endangered Species Act Section 7(a)(2) Consultation for State and Tribal Clean Water Act Section 404 Program Approvals (pdf) (313.6 KB, August 27, 2020).Link to Advisory Council on Historic Preservation.National Historic Preservation Act (PDF).Letter to Advisory Council on Historic Preservation (PDF). (2 pp, 182 K).The EPA will also engage in consultation consistent with section 106 of the National Historic Preservation Act and its implementing regulations at 36 CFR part 800 on all complete program requests to assume a CWA section 404 program received from states and tribes (see “August 24 Letter from former Assistant Administrator Dave Ross to former Chairperson Aimee Jorjani”). Federal Register Notice “ Request for Comment on Whether EPA’s Approval of a Clean Water Act Section 404 Program Is Non-Discretionary for Purposes of Endangered Species Act Section 7 Consultation” (PDF)(3 pp, 248 K). Memorandum on Endangered Species Act Section 7(a)(2) Consultation for State and Tribal Clean Water Act Section 404 Program Approvals (PDF).As such, going forward, the EPA has determined that it should consult with the Services under section 7 of the Endangered Species Act if a decision to approve a state or tribal CWA section 404 program may adversely affect ESA-listed species or designated critical habitat (see "Memorandum: Endangered Species Act Section 7(a)(2) Consultation for State and Tribal Clean Water Act Section 404 Program Approvals"). The EPA determined that approval of state and tribal requests to assume a CWA section 404 program is a discretionary action.
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