In its response to comments calling for a Section 7 consultation under the Endangered Species Act (“ESA”) for its recently revised Cadmium Water Criteria, EPA determined that the appropriate time for ESA consultation is during the state adoption process. Several groups, including the National Marine Fisheries Service (“NMFS”), the Center for Biological Diversity, and the California State Water Resources Control Board all submitted public comments on the proposed criteria changes recommending ESA consultation. The groups argued that due to the frequent adoption of the federal criteria by states, EPA should consult with NMFS in order to insure species protection. The groups further argued that deferring consultation until the state adoption process resulted in a “piecemeal approach” that leaves EPA’s adoption process “legally vulnerable.”
In rejecting the commenters’ requests, EPA noted that the federal criteria are non-binding and must be adopted by states and subject to EPA approval. EPA stated that it believes that if ESA consultation occurred during federal criteria development, states may be more likely to modify the criteria by making them less stringent than the federal criteria in instances where a particular state does not have species-specific concerns resulting from an ESA consultation. In responding to NMFS, EPA noted that NMFS indicated that even if consultations occurred at the federal level, consultations during state criteria adoption would also be necessary. Requiring consultation both during the federal adoption process and again during state adoption process would be duplicative. Moreover, it would be difficult to perform an ESA assessment at the national level, given the diversity in habitat and species across the country. Prior to approving any state adoptions of the revised Cadmium criteria, EPA intends to consult with the Services to the extent it determines such approval may impact a listed species.
EPA’s Cadmium criteria were last updated in 2001. The revised criteria slightly reduce the freshwater acute criterion from 2.0 micrograms per liter to 1.8 micrograms per liter, while slightly increasing the freshwater chronic criterion from 0.25 micrograms per liter to 0.72 micrograms per liter based on the latest scientific information.
EPA’s Federal Register Notice of the criteria is available here.