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� r.r City of Stockton and County of San Joaquin Page 31 NPDES Permit CAS0083470 Response to Comments The USFWS and NMFS may allow acts prohibited by§ 1538 of ESA if the taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. An incidental take permit may be issued if the applicant submits a habitat conservation plan that specifies: 1) the likely impact, 2) steps that will be taken to minimize and mitigate any impacts and the funding available to implement such steps, 3) alternative actions being considered and why those actions are not being utilized and 4) such other measures that the agencies may require as necessary or appropriate. 40 USC § 1539(a)(2)(A). If the agencies find, after public comment, that: 1) the taking will be incidental, 2)the applicant will, to the maximum extent practicable,minimize and mitigate the impacts of the taking, 3) the applicant will ensure that adequate funding will be provided, 4)the taking will not appreciably reduce the likelihood of survival and recovery of the species and 5)the additional measures required by the agency will be met, an incidental take permit may be issued. 40 USC § 1539(a)(2)(B). The Permit should require that the Discharger's seek an incidental take permit and prepare a habitat conservation plan,pursuant to Section 10 of the ESA (16 USC 1539), from the USFWS and NMFS. Section 7 of the ESA requires that"[e]ach Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species..." 40 USC § 1536(a)(2). Following consultation the USFWS and NMFS will provide a statement that specifies: 1) the impact of incidental taking, 2) the reasonable and prudent measures that are necessary or appropriate to minimize impacts, and 3) the terms and conditions (including reporting requirements) that must be complied with to implement the reasonable and prudent measures. 40 CFR § 1536(b)(4). The EPA has delegated issuance of NPDES permits to the State of California. EPA has discretionary authority to approve or reject state issued permits. EPA has provided operating funds to support the NPDES permitting functions of the Regional Board. EPA has provided grant fiords to the Regional Board that have been redirected to the Dischargers. DeltaKeeper believes this delegation of responsibility and the granting of funds to the Regional Board and Dischargers necessitates a consultation with USFWS and NMFS under Section 7 of the ESA. The Dischargers and the Regional Board should request that EPA serve as the federal nexus partner to initiate formal consultation with the Services and to develop and implement a habitat conservation plan. This is similar to the process that the California Department of Boating and Waterways followed in asking the U.S. Department of Agriculture to serve as its federal nexus partner in securing consultation under ESA for its water hyacinth and egeria densa control programs. DeltaKeeper acknowledges that EPA does not share the view that state-issued NPDES permits are subject to mandatory Section 7 consultation. However, EPA has pledged itself to certain actions and coordination under the draft Memorandum of Agreement between the Environmental Protection Agency, Fish and Wildlife Service and National Marine Fisheries Services Regarding Enhanced Coordination under the Clean Water Act and Endangered Species Act (CWA/ESA MOA). EPA has promised to use its oversight responsibility ensure that states comply with existing CWA regulations to provide notice and copies of draft permits to the Services. See 40 CFR 124.10(c)(1)(iv) and(e). The USFWS and NMFS are not listed on the service list as being sent a copy of the Permit.