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City of Stockton and County of San Joaquin Page 32 NPDES Permit CAS0083470 Response to Comments The CWA/ESA MOA states that EPA and the Services will work with States and Tribes to share information on permits that may raise issues regarding impacts to threatened or endangered species or designated critical habitat. If the Services or EPA are concerned that an NPDES permit is likely to have a more than minor detrimental effect on a Federally-listed species or critical habitat,the Service or EPA will contact the appropriate State to discuss identified concerns. If unable to resolve identified issue(s) with the State or Tribe, the Services will contact the appropriate EPA Regional . Branch not later than five working days prior to the close of the public comment period on the State's or Tribe's draft NPDES permit. If contacted by the Services, EPA will coordinate with the Services and the State or Tribe to ensure that the permit will comply with all applicable CWA requirements, including State or Tribal water quality standards, which include narrative criteria prohibiting toxic discharges, and will discuss appropriate measures protective of Federally-listed species and critical habitat. CWA/ESA MOA at 64. EPA may make a formal objection, where consistent with its CWA authority, or take other appropriate action, where EPA finds that a State or Tribal NPDES permit will likely have more than minor detrimental effect on Federally-listed species or critical habitat CWA/ESA MOA at 65. EPA will use the full extent of its CWA authority to object to a State or Tribal permit where EPA finds (taking into account all available information, including any analysis condubted by the Services)that a State or Tribal permit is likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of critical habitat. Id. If EPA objects to a permit and assumes permit-issuing authority for a NPDES permit, EPA will consult with the Service prior to issuance of the permit (as a Federal action) as appropriate under section 7 of the ESA. Id. at 66. Unfortunately, the USFWS and NMFS are not identified on the service list as having been sent a copy of the Permit, as required by 40 CFR 124.10(c)(1)(iv) and (e). Stockton area waterways are habitat for protected species and storm water discharges have already been identified as causing or contributing to 303(d) listed impairments and Toxic Hot Spots. The Permit must be recirculated with copies sent to the USFWS and NMFS to allow the Services the opportunity to evaluate its effects on listed species. Response: The U.S. Fish and Wildlife Service and the National Marine Fisheries Service (as well as the U.S. Army Corps of Engineers and some other potentially interested parties)were not included in the Tentative Order's public notification letter dated 12 July 2002. This oversight was corrected when these agencies were provided a copy of the Tentative Order and an opportunity to comment on it in a letter dated 13 August 2002. The comment period for these agencies was extended to 16 September 2002 to allow them adequate time to respond. None of these agencies submitted comments. DeltaKeeper cites the NMFS's recent identification of the Delta and its tributaries as"Critical Habitat" for the Central Valley spring-run Chinook salmon and Central Valley Steelhead. As that final rule makes clear, the designation of critical habitat does not change any of the existing requirements under the Federal Endangered Species Act(ESA) for listed species [65 Fed. Reg. 7764, 7766 (16 Feb. 2000)]. The only provision of the ESA that is applicable to the Permittees is Section 9 (16 U.S.C. § 1538). Section 9 prohibits any activity that would cause an unpermitted