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%NOV .. City of Stockton and County of San Joaquin Page 33 NPDES Permit CAS0083470 Response to Comments "taking"of endangered species and certain threatened species [16 U.S.C. § 1533(d)]. DeltaKeeper suggests that the Permittees should be required to consult with USFWS and NMFS to determine whether Permittees need a"take permit." First,no evidence has been submitted that shows that the Permittees' discharge is causing or has the potential to cause a take of any listed species. Finding 26 in the Tentative Order states that the discharges shall not cause or contribute to violations of water quality standards that would cause or create a condition of nuisance, pollution, or water quality impairment in receiving waters. In addition, Finding 30 states that these requirements implement the Basin Plan,which identifies preservation and enhancement of fish, wildlife, and other aquatic resources as a beneficial use. The Tentative Order therefore addresses the protection of fish, wildlife, and other aquatic resources,whether they are listed under the ESA or not. The following is added to clarify the Regional Board's intent: Finding 41, "This permit does not authorize any take of endangered species. To ensure that endangered species issues were raised to the responsible agencies, the Regional Board notified the U.S.Fish and Wildlife Service,National Marine Fisheries Service, and the California Department of Fish and Game of Regional Board consideration of this Order." Second, neither the ESA nor any other law requires "consultation"with the USFWS or NMFS regarding the necessity of a take permit. Section 9 of the ESA prohibits unpermitted taking of endangered species (16 U.S.C. § 1538). Section 9 does not contain any requirement to consult with USFWS or NMFS. There is no provision in the law for the Permittees to consult with the USFWS or NMFS regarding whether to apply for a take permit. Consultation under the ESA is required under Section 7, which applies only to federal activities [16 U.S.C. § 1536(a)(2); Sierra Club v. Babbitt(9th Cir. 1995) 0 F.3d 1502, 1512]. Further, the ESA is enforceable by federal agencies, not the Regional Board. The Regional Board does not have authority or responsibility to enforce the ESA through NPDES permits. In fact, compliance with the ESA is addressed by federal agency review of state-issued permits (40 C.F.R. § 123.44). 3. Comment: (DK Comment 2(b)) The Permit Must Ensure Compliance With Federal Regulations And Attainment Of Water Quality Standards Within Three Years. As we demonstrate below, the Permit fails to ensure compliance with water quality standards within three years and fails to hold the Permittees' to an MEP standard. We, alternatively, demonstrate that other provisions contained in the Porter Cologne require the Regional Board to establish more protective permit conditions. The regulations prohibit issuance of a permit"when the conditions of the permit do not provide for compliance with the applicable requirements of CWA, or regulations promulgated under CWA" [40 C.F.R. § 122.4(a)] or"when imposition of conditions cannot ensure compliance with the applicable water quality requirements of all affected states." [40 CFR § 122.4(d)]. The regulations also mandate, at 40 CFR § 122.42(d), compliance with permit conditions "as expeditiously as practicable,but in no event later than three years after the date of issuance of the permit"The fact that more flexible BMPs are allowed in lieu of end-of-pipe limitations does not alter the requirement that permits must ensure the attainment of water quality standards within three years.