Construction General Permit Threatened and Endangered Species
- EPA’s Construction General Permit (CGP) Requirements for Endangered and Threatened Species and Critical Habitat
- Action Area under EPA’s CGP
- Interactive Mapping Tools for Endangered and Threatened Species and Critical Habitat
- Notice on Adverse Incidents
- Resources Related to Protection of Endangered and Threatened Species and Critical Habitat
Section 9 of the Endangered Species Act (ESA) prohibits take (e.g., harm or harassment) of ESA-listed species.
Part 1.1.5 and Appendix D of the 2022 CGP require you to determine your eligibility with regard to protection of threatened and endangered species and designated critical habitat. You must make this determination before you submit a Notice of Intent (NOI) for permit coverage. Take note of the criterion (A, B, C, D, E or F) under which you are eligible because you will need to select this and provide supporting documentation in your NOI.
- See Endangered Species Requirements to determine your Endangered Species Act Eligibility under the CGP.
When evaluating the potential effects of your activities, you must consider effects to listed species or critical habitats within the “action area” of your construction activity, as identified by the U.S. Fish and Wildlife Service (USFWS) IPaC and/or the National Oceanic and Atmospheric Administration (NOAA) website resources.
Example of An “Action Area” with Respect to Requirements under EPA’s CGP for Protection of ESA-Protected Species and Critical Habitat
“Action Area” – All areas to be affected directly or indirectly by the federal action and not merely the immediate area involved in the action. See 50 CFR 402. For the purposes of this permit and for application of the threatened and endangered species protection eligibility requirements, the following areas are included in the definition of action area:
- The areas on the construction site where stormwater discharges originate and flow toward the point of discharge into the receiving waters. This includes: areas on the construction site where excavation, site development, or other ground disturbance activities occur; and areas where stormwater controls will be constructed and operated, including any areas where stormwater flows to and from the stormwater controls and the immediate vicinity.
- The areas in the vicinity of the construction site where stormwater discharges flow from the construction site to one or more points of discharge into receiving waters. (Example: Where stormwater flows into a ditch, swale, or gully that leads to receiving waters.)
- The extent of the receiving water potentially affected by stormwater discharges from your construction site through alteration of water chemistry, turbidity, temperature, or bank structure (i.e., erosive flow), regardless of whether the construction site is adjacent to the receiving water.
U.S. Fish and Wildlife Service (USFWS)
For USFWS species information, use the on-line mapping tool IPaC (Information, Planning, and Consultation System) (http://ecos.fws.gov/ipac/), and follow these steps:
- Select Get Started.
- Search or zoom to find your location: Use an address, city name or other location to find your facility then use the zoom in/out feature to see the entire extent of your action area on the screen.
- Define your action area: Use one of the mapping features (e.g., sketch, polygon or line drawing tool) to draw your entire action area.
- For the aquatic portion of your action area, trace the waterbody(ies) with the tool to characterize your action area.
- If your proposal will include any upland activities (i.e., discharge-related activities), or if there is some aspect of your discharge that would potentially result in effects to terrestrial species, include the corresponding upland areas within your action area.
- When you are done, go to confirm and press Continue.
- Select Define Project to request an Official Species List.
- Complete the fields on the Official Species List Request page, and include “(CGP)” at the end of the project description.
- For Classification, select “Water Quality Modification.”
- Select the appropriate requesting agency/organization type (for most operators, this should be “Other”).
- Submit the request to acquire an Official Species List, which should show both listed species as well as any designated critical habitat that are present in the action area in the previous step.
- Note: If a link to an Official Species List is not available on the page, follow the web link of the office(s) indicated, or contact the office directly by mail or phone if a web link is not shown.
National Marine Fisheries Service (NMFS)
For NMFS species and critical habitat information, use the following webpages:
- Northeastern U.S.: NOAA Fisheries Greater Atlantic Region ESA Section 7 Mapper
- Southeastern U.S. and Puerto Rico: ESA Section 7 Mapper Southeast Region
- Western U.S.: West Coast Region Protected Resources App
- Pacific Islands: Contact the Pacific Islands Regional Office (firstname.lastname@example.org) or (808) 725-5000
To determine the field office that corresponds to your site, go to NMFS (https://www.fisheries.noaa.gov/) and select the tab for “Regions.”
Notwithstanding any of the other corrective action trigger and notification requirements, if an operator becomes aware of an adverse incident affecting a Federally-listed threatened or endangered species or its federally designated critical habitat, which may have resulted from a discharge from the operator’s construction site, in addition to the obligation to notify EPA (see Appendix I of the CGP), it is in the best interest of the operator to immediately notify NMFS if the case involves an anadromous or marine species under NMFS’ jurisdiction, as applicable. This notification should be made by telephone and email addresses, to the contacts listed on NMFS’ website, immediately upon the operator becoming aware of the adverse incident, and should include at least the following information:
- Caller’s name and telephone number,
- Operator name and mailing address,
- Name of the affected species,
- How and when the operator became aware of the adverse incident,
- Description of the location of the adverse incident,
- Description of the adverse incident, and
- Description of any steps the operator has taken or will take to alleviate the adverse impact to the species.
Additional information on Federally-listed threatened or endangered species and federally-designated critical habitat is available from NMFS (https://www.fisheries.noaa.gov/) for anadromous or marine species. Note: In an adverse incident affecting Federally-listed threatened or endangered species or designated critical habitat, the operator should leave the affected organisms alone, make note of any circumstances likely causing the death or injury, note the location and number or extent of aquatic organisms involved and, if possible, take photographs. In some circumstances, the operator may be asked to carry out instructions provided by the NMFS to collect specimens or take other measures to ensure that evidence intrinsic to the specimen is preserved.
- Spanish Language Erosion and Sediment Control Fact Sheet / Hoja Informativa sobre Control de Erosión y Sedimentación (pdf)
- Spanish Language Pollution Prevention Fact Sheet / Hoja Informativa sobre Prevención de la Contaminación (pdf)
- U.S. Fish and Wildlife Service’s Wildlife-Friendly Erosion Control Products webpage provides recommendations on the type of erosion control netting practices that are considered “wildlife friendly,” including those that use natural fiber or 100 percent biodegradable materials and that use a loose weave with a non-welded, movable jointed netting, as well as those products that are not wildlife friendly including square plastic netting that are degradable (e.g., photodegradable, UV-degradable, oxo-degradable), netting made from polypropylene, nylon, polyethylene, or polyester.