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rRCN :DeltaKeeper =AX N0. :2094645174 Se_. 23 2002 22:2'_ Section 9 of the federal Endangered Species Act(ESA) prohibits the "take" of a listed species of fish or wildlife. 16 USC § 1538. The definition of"take" is to "harass, harm, pursue, hunt, shoot, wound,kill, trap, capture, or collect, or to attempt to engage in any such conduct." 16 LSC § 1532(19). The USFWS defines the term "harmi' to include any act which actually kills or injures fish or wildlife and emphasizes that such acts include significant habitat modification or degradation that significantly impairs essential behavioral patterns of fish or wildlife. 40 FR 44412:46 FR 547-:8. This definition has been upheld by the U.S. Supreme Court as a reasonable interpretation or the term (See Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 115 S. Ct. 2407, 2418, 1995). Subsequently, N.IIFS has defined the term "harm" to include "significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding or shclierng." 64 FR 60727. Examples of activities that can cause death or injury to fish include"idiischar- r.2 pollutants,such as oil, toxic chemicals, radioactivity, carcinogens, mutagens, teratogens or orgaric nutrient-laden water including sewage water into a listed species habitat." 64 FR 60730. Toxicity, reductions in food supply or thermal or water quality barriers to migration constitute ha--m. Id, at 60727, 60728. Any Permit regulating the discharge of toxic pollutants to habitat of listed species must be rigorously protective of aquatic life. It must also ensure that compliance with Permit lim-irs is achieved within the shortest possible time-frame. 1. The Hearing Notice states that persons wishing to comment on this noticed hearin, mast submit comments by 10 September 2002 and that comments received after that date will not be accepted or incorporated into the administrative record if doing so would prejudice any party. We refer staff to 40 CFR § 124.12(4)(c) that explicitly requires that "[tjhe public continent period Linder Sec. 124.10 shall automatically be extended to the close of any public hearing under this section." We are concerned that individuals and organization may be deterred from su^miltin. comments under an erroneous belief that the cornmcnt period has expired. The Permit and scheduled hearing must be re-noticed. 2. The interested parties list for the Perrnit failed to include the USFWS and the NIv1"rS. We referstaff to 40 CFR §124.10(c)(1)(iv) which explicitly requires that the Services receive notice of any NPDL•S permit and 40 CFR §124.10(c) which requires that the Services be mailed a copy of the Permit Application,Fact Sheet and Pcrmii. The USEPA has pledged, under the drat DeltaKeeper Common Lc, Marley Cooling Tower NPDFC Permir, 23 Scptcrnhcr 2002, page 2.