Chicago area. If the plant were located further south,
outside the ozone nonattainment area, the plant would be
expected to have similar if not greater impact on ozone in
the Chicago area. These effects are demonstrated by the
assessment performed by the [IEPA] of the effects of new
power plants on ozone air quality, which conservatively
assumes that all existing plants continue to operate. This
evaluation shows that emissions from this plant and other
proposed power plants would not cause violations of the
1-hour ozone air quality standard. They also would not
jeopardize timely attainment of the standard.

Similarly, as PM2.5 is formed in the atmosphere from
SO2 and NOx emissions, locating the plant further south,
outside the ozone nonattainment area, would not necessa-
rily have a significant effect on its contribution to PM2.5
in the Chicago area. More importantly, reductions in
PM2.5 levels in the Chicago area require regional reduc-
tions in the emissions of PM2.5 precursors from all major
existing sources given the measured high background
levels of PM2.5.

Responsiveness Summary at 38-39 (Response to Comment #109).

Further, in response to a comment suggesting that IEPA failed in its obligations to allow for sufficient public input on site selection or to adequately consider other reasonable sites, IEPA stated:

The relevant provision of the Clean Air Act (Section
165(a)(2)) specifically requires that a public hearing be
held "with opportunity for interested persons be able [sic]
to appear and submit written or oral presentations on the
air quality impact of such source, alternatives thereto,
control technology requirements, and other appropriate
considerations." This statutory PSD requirement concerns
the scope of the public hearing and was satisfied by the
public hearing and comment period held by the [IEPA].
Information on the existing air quality at the site of the
proposed plant, as is relevant to the permit, was made
available by the [IEPA]. Beyond this, there is no legal re-
quirement that a draft PSD permit must address alterna-
tives to a proposed project, as suggested by this comment,
nor would it be appropriate for the permit to address an
alternative project that was not actually the subject of the
permit.

Id. at 42 (Response to Comment #121).

Here again, Petitioners' arguments are little more than a restatement of their earlier comments and fail to demonstrate why the IEPA's responses to comments in this regard were clearly erroneous or otherwise warrant review. Accordingly, review is denied on this issue. See In re Cardinal FG Co., 12 E.A.D. 153, 160 (EAB 2005) (explaining that in order to establish that review is warranted, petitioners must explain why the permit issuer's previous responses were clearly erroneous or otherwise warrant review); In re Steel Dynamics, Inc., 9 E.A.D. 740, 744 (EAB 2001).128

J. ESA Challenges

Petitioners also raise several ESA challenges to the final permit. These issues are, to a significant extent, intertwined with Petitioners' claims regarding the soils and vegetation analysis, which we have already addressed. See supra Part II. B. Even though we are remanding the permit because we have found that IEPA erred in its soil and vegetation analysis, we still consider Petitioners' ESA arguments to the extent that they raise issues separate and distinct from those raised in connection with the soils and vegetation analysis.

In considering the ESA issues, we first summarize the statutory and regulatory provisions relevant to Petitioners' claims. We then describe the development of the ESA issues in this case, which have evolved during the pendency of this appeal because of the unusual procedural history of these claims. Finally, we analyze the substantive questions raised by Petitioners' claims.

128 Moreover, even if Petitioners had satisfied the requirements for Board review on this issue, the record before us indicates that both Indeck and IEPA adequately addressed and documented their respective consideration of alternatives to the proposed facility and that petitioners had an adequate opportunity to comment on this issue. See Resp't Ex. CC (Alternative Siting Issues Raised During Public Review for the Permit to Construct, prepared by Indeck-Elwood, LLC (Aug. 14, 2003) & MM (Memorandum to File from Christopher Romaine, Re: Review of Analysis of Alternatives, Indeck-Elwood (Oct. 10, 1003)); Responsiveness Summary at 37-42. There is simply no indication in the record that IEPA's determinations in this regard were clearly erroneous or otherwise warrant Board review. See In re Sutter Power Plant, 8 E.A.D. 680, 689 (EAB 1999) (rejecting petitioner's argument that EPA's review of alternative sites was inadequate because petitioner did "not identify any error in the Region's decision not to reconsider the siting decision in the context of issuing a PSD permit"); see also In re Tondu Energy Co., 9 E.A.D. at 717 (EAB 2001) (holding that the petitioner's assertions regarding the inappropriateness of the proposed facility location failed to "identify specific permit conditions that she is challenging as erroneous and whose revision or removal could redress her concerns").

1. Relevant ESA Statutory Provisions andImplementing Regulations

The ESA, 16 U.S.C. §§ 1531-1544, was enacted in 1973 in response to increasing concerns about the impacts of human activities on fish, wildlife, and plants and their natural habitats. Endangered Species Act of 1973, Pub. L. 93-205, 81 Stat. 884 (1973) (codified at 16 U.S.C. §§ 1531-1544). Of particular concern were those species that had been rendered extinct or whose numbers were so depleted as to be in danger of or threatened with extinction. ESA § 2(a)(1)-(2), 16 U.S.C. § 1531(a)(1)-(2). Thus, one of the ESA's primary purposes is "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, [and] to provide a program for the conservation of such endangered species and threatened species." ESA § 2(b), 16 U.S.C. § 1531(b). In order to accomplish this goal, the ESA contains provisions for the "listing" of endangered or threatened species and the designation of critical habitat for those species by the Secretary of the Interior and the Secretary of Commerce.129 See ESA § 4, 16 U.S.C. § 1533; see also Interagency Cooperation - Endangered Species Act of 1973, as Amended, 51 Fed. Reg. 19,926, 19,928 (June 3, 1986) (codified at 50 C.F.R. pt. 402) [hereinafter "ESA Consultation Regulations"] (noting that the two agencies share duties under the ESA). In addition, the ESA imposes a number of specific substantive and procedural obligations on the activities of federal agencies, including EPA. See, e.g., ESA §§ 7(a)(1), (a)(2), 9(a)(1), (a)(2), 16 U.S.C. §§ 1536(a)(1), (a)(2), 1538(a)(1), (a)(2); see also 50 C.F.R. § 402.06(a) (noting both procedural and substantive requirements under the ESA).

Of particular relevance to this case is section 7(a)(2), which contains important substantive and procedural requirements. See Sierra Club. v. Babbitt, 65 F.3d 1502, 1504-05 (9th Cir. 1995). This section requires that:

Each Federal agency shall, in consultation with and with
the assistance of the [FWS], insure that any action author-
ized, funded, or carried out by such agency * * * is not

129 For the most part, the two "Secretaries" share responsibilities under the ESA, and the term "Secretary" is used throughout the Act to denote either one Secretary or the other. ESA § 3(15); 16 U.S.C. § 1532(15); 50 C.F.R. § 402.01(b); ESA Consultation Regulations, 51 Fed. Reg. 19,926, 19,926 (June 3, 1986). Generally, the Secretary of the Interior acts through the U.S. Fish and Wildlife Service ("FWS") to implement the requirements of this section of the ESA with respect to terrestrial species, whereas responsibilities for marine species are vested in the Secretary of Commerce and have been delegated to the National Oceanic and Atmospheric Administration's National Marine Fisheries Service ("NMFS"). 50 C.F.R. § 402.01(b); 51 Fed. Reg. at 19,926. In some limited cases, such as sea turtle species that live on land and in the sea, jurisdiction may be shared by the two "Services." 50 C.F.R. §§ 17.2 (b), 222.309(a); see also Hawksbill Sea Turtle v. FEMA, 126 F.3d 461, 470 (3d Cir. 1997) (finding that the two agencies share jurisdiction over sea turtles). Because the species at issue in this case are terrestrial, this opinion will primarily use the term "FWS" (or "Service") from this point onward when referring to duties and responsibilities of the "Secretaries" or the "Services."

likely to jeopardize the continued existence of any endan-
gered species or threatened species or result in the de-
struction or adverse modification of habitat of such spe-
cies which is determined by the [FWS] *** to be
critical, unless such agency has been granted an exemp-
tion for such action ***

ESA § 7(a)(2), 16 U.S.C. § 1536(a)(2). Notably, agency "action" has been broadly defined by regulation to include "the granting of licenses, contracts, leases, easements, rights-of-way, [or] permits." 50 C.F.R. § 402.02; see also In re Dos Republicas Resources Co., 6 E.A.D. 643, 649 (EAB 1996) (noting that "[c]overed ESA Federal actions include the granting of a permit"); Envtl. Prot. Info. Ctr. (“EPIC”) v. Simpson Timber Co., 255 F.3d 1073, 1075 (9th Cir. 2001) (same). Section 7(a)(2), therefore, imposes a substantive duty on federal agencies to ensure that none of their actions, including the issuance of a permit,130 is likely to jeopardize listed species or destroy or adversely modify such species' critical habitat.131 See 51 Fed. Reg. at 19,926; see also In re Phelps Dodge Corp., 10 E.A.D. 460, 485 (EAB 2002); Dos Republicas, 6 E.A.D. at 649, 666.

As a key means of ensuring fulfillment of this substantive objective, ESA section 7(a)(2) also imposes a procedural duty on federal agencies to consult with the FWS132 - and this consultation obligation applies to any agency action “in

130 As discussed more fully below, in the most recent brief filed by EPA's Office of General Counsel on this issue, OGC, on behalf of the Office of Air and Radiation (OAR), states that "EPA interprets issuance of a federal PSD permit to qualify as [an] action" under the ESA. See OAR Post-Consultation Br. at 5.

131 The ESA defines "critical habitat" as:

(i) the specific areas within the geographical area occupied by the spe-
cies, at the time it is listed in accordance with the provisions of section
1533 of [the ESA], on which are found those physical or biological fea-
tures (I) essential to the conservation of the species and (II) which may
require special management considerations or protection; and

(ii) specific areas outside the geographic area occupied by the species at
the time it is listed in accordance with the provisions of section 1533 of
[the ESA], upon a determination by the Secretary that such areas are
essential for the conservation of the species.

ESA § 3(5)(A), 16 U.S.C. § 1532(5)(A).

132 Consultation may take one of the following forms: (1) early consultation, 40 C.F.R. § 402.11; (2) biological assessment, id. § 402.12; (3) informal consultation, id. § 402.13; or (4) formal consultation, id. § 402.14. The consultation procedures are intended to give the FWS the opportunity to determine whether the federal action is likely to jeopardize protected species or adversely impact critical habitat. ESA § 7(b)(3)(A); 16 U.S.C. § 1536(b)(3)(A). If such impacts are likely, the consultaContinued

which there is discretionary Federal involvement or control." 50 C.F.R. § 402.03; see Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir. 1995) (discussing whether the Bureau of Land Management had retained any discretion to influence action when it had previously granted a right-of-way to a private entity). According to the regulations implementing this provision of the ESA, consultation with the FWS is required when an agency determines that its action "may affect' listed species or critical habitat." 50 C.F.R. § 402.14(a); 133 Phelps Dodge, 10 E.A.D. at 485-86; see also EPIC, 255 F.3d at 1075. The term "may affect" is broadly construed by FWS to include "[a]ny possible effect, whether beneficial, benign, adverse, or of an undetermined character," and thus is easily triggered. 51 Fed. Reg. at 19,926. If an agency determines that its action meets this low threshold and "may affect" a listed species or adversely modify its critical habitat, formal consultation with the FWS is required, with limited exceptions. 134 50 C.F.R. § 402.14(a), (b). One such exception relevant to this case is where the agency

(continued)

tion process allows for identification of reasonable and prudent alternatives to avoid such unfavorable impacts. Id.; 50 C.F.R. § 402.14(g)(5).

133 Section 402.14 of 50 C.F.R. provides as follows:

(a) Requirement for formal consultation. Each Federal agency shall re-
view its actions at the earliest possible time to determine whether any
action may affect listed species or critical habitat. If such a determina-
tion is made, formal consultation is required, except as noted in para-
graph (b) of this section. The Director may request a Federal agency to
enter into consultation if he identifies any action of that agency that may
affect listed species or critical habitat and for which there has been no
consultation. When such a request is made, the Director shall forward to
the Federal agency a written explanation of the basis for the request.

(b) Exceptions. (1) A Federal agency need not initiate
formal consultation if, as a result of the preparation of a
biological assessment under § 402.12 or as a result of in-
formal consultation with the Service under § 402.13, the
Federal agency determines, with the written concurrence
of the Director, that the proposed action is not likely to
adversely affect any listed species or critical habitat.

(2) A Federal agency need not initiate formal consultation if a prelimi-
nary biological opinion, issued after early consultation under § 402.11, is
confirmed as the final biological opinion.

50 C.F.R. § 402.14.

134 If an agency determines there will be no effect on any federally-listed species or critical habitat (for example, where the agency determines there are no listed species or critical habitat in the proposed "action area"), the agency need not formally consult. See 50 C.F.R. § 402.14(a); see also Phelps Dodge, 10 E.A.D. at 486. Of course, an agency's "no effect" determination should be supportable under the ESA.