The Department of Defense filed comments on the draft Biological Opinion by the National Marine Fisheries Service for EPA’s Pesticide General Permit under the Clean Water Act.  NMFS’ draft BiOp concludes that the GP is likely to jeopardize the continued existence of endangered and threatened species and result in the destruction or adverse modification of critical habitat that has been designated for such species, absent the implementation of a Reasonable and Prudent Alternative (RPA).  DoD’s comments argue that DoD facilities should be exempt from these RPAs.

Because each Federal agency, including DoD, has an independent obligation to comply with the Endangered Species Act (ESA), the RPA should not apply to discharges by federal agencies that are subject to the ESA. When DoD has complied with its obligations under Section 7 of the ESA, requiring EPA to apply additional measures as set forth in the RPA would be duplicative. DoD is concerned, though, that the wording of the limitation in lines 5433 and 5434 could lead readers to believe that the limitation only applies when a federal agency engages in formal consultation with the resource agency. DoD is also concerned that ‘existing’ in line 5434 implies that only consultations that have been concluded on the date the PGP is finalized would be considered. DoD recommends that NMFS clarify the limitation as follows:

‘In addition, this RPA is not applicable to a discharge of pesticides into waters of the U.S. by a Federal agency because federal agencies have an independent duty to comply with the Endangered Species Act.’ 

Additionally, DoD requests that EPA incorporate this limitation on applicability of the RPA for Federal agencies in the [Pesticides General Permit]. Thus, in those instances where the PGP applies to a Federal agency, the agency would seek coverage in accordance with the PGP without the additional requirements associated with the RPA because federal agencies will have addressed ESA concerns by complying with their own ESA obligations.” 

Read DoD’s comments attached below.