Water Act NPDES permits, Underground Injection Control ("UIC") permits, and Resource Conservation and Recovery Act ("RCRA") permits where the regulations expressly refer to the consideration of the ESA when issuing permits under those statutes, the PSD regulations are silent as to the interplay between the CAA and the ESA. In re Metcalf Energy Ctr., PSD Appeal Nos. 01-07 & 01-08, at 42 n.20 (Aug. 1, 2001); see also In re Ash Grove Cement Co., 7 E.A.D. 387, 428-29 (EAB 1997) (referring to EPA's RCRA regulations at 40 C.F.R. § 270.3(c)); In re Dos Republicas Resources Co., 6 E.A.D. 643, 649 & n.27 (EAB 1996) (referring to EPA's NPDES regulations at 40 C.F.R. § 122.49); In re Renkiewicz SWD-18, 4 E.A.D. 61, 65 (EAB 1992) (referring to EPA's UIC regulations at 40 C.F.R. § 144.4). This question is vexing because it appears that the various EPA Regions have, at times, interpreted the synergy between these two statutes differently and have not always taken consistent approaches to the ESA in their delegation agreements and practices. See Amended Petition at 44; Pet'rs Post-Consultation Br. at 13-15 (pointing out the regional differences as well as mentioning the fact that Region 5 has now initiated consultation for other IEPA PSD permits). Compare IEPA Suppl. Br. at 8 (explaining that IEPA's "delegation agreement is silent with respect to the treatment of ESA-related issues") with Metcalf, slip op. at 42 (noting that, in the Region 9/Bay Area District PSD delegation agreement, Region 9 retains ESA responsibilities even though the District has been delegated authority to issue PSD permits). IEPA itself indicates that there has been a lack of "meaningful guidance" on this issue, IEPA Suppl. Br. at 9, which may have led, at least in part, to the ESA-related problems in this case. For these reasons, the Board requested that OGC offer its views on this matter. 145 See, e.g., Order Requesting OGC to File a Brief (Dec. 1, 2005); Order Requesting OGC to Answer Remaining Questions (Jan. 27, 2006).

In the most recent brief filed in response to the Board's request, OGC/OAR state that, in their view, "section 7(a)(2) of the ESA applies to the issuance of a federal [PSD] permit by EPA or a state delegated to act on EPA's behalf."146

145 This particular question was first joined by Region 5's original determination that consultation with the FWS "was not appropriate because EPA lacks discretionary authority." See Amended Petition, Ex. P at 1. IEPA, in its earlier briefs in this appeal, stated that "[t]he responsibilities borne by federal agencies under the ESA are generally non-delegable to state permit authorities," IEPA Response at 104, and thus "defer[red] to its federal counterparts at USEPA/Region 5 and/or the Office of General Counsel for any interpretations of applicable law in this matter," id. at 105. The relevant EPA offices, however, did not initially provide a position on this issue, arguing that the issue was either moot or unripe. See Response of OGC to the Board's February 3, February 4, and March 19, 2004 Orders at 2-3. OGC/OAR now argue that this question has been mooted by Region 5's consultation with the Service. OGC Post-Consultation Br. at 2, 3-4; OAR Post-Consultation Br. at 4-5. This question is discussed further below.

146 OGC/OAR indicate that this is likewise true for those local pollution control districts to which EPA has delegated the PSD program. OAR Post-Consultation Br. at 1 n.1. Because a state-delegated program is at issue in this case, we will for purposes of simplicity only refer to "states" in the remainder of our discussion.

OAR Post-Consultation Br. at 1 (footnote omitted); accord id. at 5. OGC/OAR explain that, under the ESA and its implementing regulations, issuance of a federal PSD permit qualifies as an "action authorized, funded, or carried out by EPA," thereby implicating ESA section 7(a)(2). Id. at 5. OGC/OAR further explain that:

Federal PSD permits can include permits issued directly
by EPA or, as in this case, by a delegated state acting on
EPA's behalf. Where EPA delegates administration of the
federal PSD program, the delegate state implements the
substantive and procedural aspects of the federal PSD reg-
ulations on behalf of EPA pursuant to a negotiated agree-
ment. Thus, in issuing the Indeck permit pursuant to a del-
egation agreement with EPA, IEPA simply stands in the
shoes of EPA, and the permit remains a federal action for
ESA purposes.

Id. at 5-6 (internal citations omitted). 147 OGC/OAR also state that although they construe the scope of their discretion under the PSD permitting program "to be limited by the terms of section 165 of the CAA, section 165 arguably provides EPA limited discretion to consider and address impacts on listed species that may result from issuance of a federal PSD permit." Id. at 6 (internal footnote omitted). They emphasize that, although ESA section 7(a)(2) applies to the issuance of these PSD permits, this does not always mean that consultation is required because the Agency may conclude that the permit has no effect on listed species or critical habitat. Id. at 6-7.

Upon consideration of the CAA, the ESA, the PSD regulations, and the ESA implementing regulations, we generally agree with and adopt the OGC/OAR analysis and interpretation on this point. As the Board has explained on several occasions, PSD permits issued pursuant to a delegation agreement between EPA and a state are considered federally-issued permits under the Agency's regulations. E.g., In re Three Mountain Power, L.L.C., 10 E.A.D. 39, 40 n.1 (EAB 2001); In re W. Suburban Recycling & Energy Ctr., 6 E.A.D. 692, 695 n.4, 703 (EAB 1996) (noting that "IEPA stands in the shoes of EPA for purposes of implementing the federal PSD permit program"); In re SEI Birchwood, Inc., 5 E.A.D. 25, 26 (EAB 1994); see also 40 C.F.R. § 124.41 (defining the term "EPA" to mean the delegate agency in situations where the Agency has delegated authority to administer the PSD program to the agency); 45 Fed. Reg. 33,412 (May 19, 1980) ("For purposes of Part 124, a delegate State stands in the shoes of the Regional

147 OGC/OAR note that their analysis would differ for those PSD permits issued by states or eligible Indian tribes under a PSD program approved by EPA in a state or tribal implementation plan. OAR Post-Consultation Br. at 6 n.2.

Administrator [and must] follow the procedural requirements of part 124. * ** A permit issued by a delegate is still an 'EPA-issued permit' ***.").

As a federally-issued permit, a PSD permit issued by a delegated state would therefore fall within the meaning of federal "action" as that term is used in the ESA. Consequently, ESA section 7(a)(2) would apply to such permit issuance unless the Agency somehow lacks "discretionary involvement or control." 50 C.F.R. § 402.03. This term has not been explicitly defined by the FWS in its regulations. See id. § 402.02 (definitions section). Federal courts, however, have determined that an agency retains discretionary involvement or control when it has "the ability to implement measures that inure to the benefit of the protected species." E.g., EPIC v. Simpson Timber Co., 255 F.3d 1073, 1080 (9th Cir. 2001) (quoting Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir. 1995)); accord Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv., 340 F.3d 969, 974 (9th Cir. 2003). In other words, "where there is no agency discretion to act, the ESA does not apply." Natural Res. Def. Council v. Houston, 146 F.3d 1118, 1125-26 (9th Cir. 1998); accord Ground Zero Ctr. for Non-Violent Action v. U.S. Dep't of the Navy, 383 F.3d 1082, 1092 (9th Cir. 2004). On occasion, courts have found circumstances in which an agency did not have discretionary involvement or control over its action. E.g., Ground Zero, 383 F.3d at 1092; EPIC, 255 F.3d at 1082; Sierra Club, 65 F.3d at 1509. For example, where the Bureau of Land Management ("BLM") granted a right-of-way to a private party prior to the enactment of the ESA, and the BLM could take no further action relevant to a threatened or endangered species prior to the private party's exercise of its contractual rights, thereby rendering any consultation meaningless, the reviewing court concluded that BLM lacked the requisite discretion. Sierra Club, 65 F.3d at 1509.

Likewise, in EPIC v. Simpson Timber Company, the Court of Appeals for the Ninth Circuit held that, because the FWS did not retain discretionary control to alter an incidental take permit it had issued prior to the listing of two species and could not take any action to inure to the benefit of those newly-listed species, the Service was not required to reinitiate the consultation process. EPIC, 255 F.3d at 1083. The initial issuance of a PSD permit does not appear analogous to either of those situations, both of which involved agency activity that had already been completed and for which there was no ongoing regulatory authority. Moreover, we have found no PSD provisions or regulations that purport to proscribe the consideration of a facility's impacts on threatened or endangered species, nor do either IEPA or EPA point to any that do. Cf. Ground Zero, 383 F.3d at 1082 (explaining that, where the agency has no discretion to site the project because the President has already made that decision, consultation by the Navy over the risk of siting the project at that location "would be an exercise in futility").

In fact, we find the converse is true. The CAA provides that, in establishing BACT limits, the permit issuer is to "tak[e] into account energy, environmental, and economic impacts and other costs." CAA § 169(3), 42 U.S.C. § 7479(3)

(emphasis added). We think "environmental impacts" is most naturally read to include ESA-identified impacts to endangered or threatened species. Furthermore, the CAA essentially requires an analysis of the "soils and vegetation *** in the area potentially affected by the emissions," which may likewise be informed by ESA-identified impacts on endangered or threatened vegetative species. CAA § 165(e)(3)(B), 42 U.S.C. § 7475(e)(3)(B); accord 40 C.F.R. § 52.21(0). These statutory predicates would appear to provide the necessary authority to address ESA-related concerns through the provision of ameliorative conditions in the permit, particularly where the endangered or threatened species is a plant species (i.e., is "vegetation"). C.f. Turtle Island, 340 F.3d at 977 (finding that statute allowing action agency to issue permits entrusted action agency with discretion to condition permits to inure to the benefit of listed species). We therefore conclude that the CAA's PSD requirements and the ESA requirements are appropriately viewed as complementary in nature, such that impacts on ESA-identified threatened and/or endangered species can be taken into account when considering a PSD permit application and establishing a permit's terms and conditions. As the Ninth Circuit has noted, "an agency cannot escape its obligation to comply with the ESA merely because it is bound to comply with another statute that has consistent, complementary objectives." Wash. Toxics Coal. v. EPA, 413 F.3d 1024, 1031 (9th Cir. 2005) (concluding that "compliance with FIFRA [the Federal Fungicide, Rodenticide, and Rodenticide Act] requirements does not overcome an agency's obligation to comply with environmental statutes with different purposes," in particular, the ESA), cert. denied, CropLife Am. v. Wash. Toxics Coal., 126 S. Ct. 1024 (2006); see also Headwaters, Inc. v. Talent Irrigation Dist., 243 F.3d 526, 531-32 (9th Cir. 2001) (finding that FIFRA and the Clean Water Act ("CWA") have different and complementary purposes and thus the registration and labeling of a substance under FIFRA does not exempt a party from its CWA obligations).

In short, we find that federal PSD permits, including those issued by a delegated state, fall within the meaning of federal "action" as that term is used in the ESA. Accordingly, ESA consultation is required in this setting when the permitting decision "may affect" listed species or designated critical habitat. 50 C.F.R. § 402.14(a).

b. What Is the Time Frame for Complying With The ESA's
Consultation Requirements and Was It Met In This Case?

Although the ESA regulations allow a federal agency, upon written notice to the FWS, to designate non-federal representatives to perform certain section 7 activities, including conducting informal consultations, the federal agency retains "[t]he ultimate responsibility for compliance with section 7." 50 C.F.R. § 402.08. Thus, in this case, Region 5 had the ultimate responsibility for ensuring compliance with the ESA in the context of the permit before us. The question now at hand pertains to when during the PSD permitting process consultation should

occur and the attendant question of whether Region 5 met this deadline in this case. Petitioners argue that the two processes - ESA consultation and PSD permit development - must be performed in a concurrent and integrated fashion. Pet'rs Post-Consultation Br. at 13-15. OGC/OAR, however, take the position that ESA consultation, whether formal or informal, may proceed entirely separate from the PSD process. OAR Post-Consultation Br. at 8. OGC/OAR further posit that consultation should "ordinarily" conclude before issuance of a final federal PSD permit, but does not "necessarily" have to be completed prior to the issuance of the draft permit and the public comment period. Id. Moreover, with respect to the case at hand, they argue that, because Petitioners appealed Indeck's permit to the Board, which essentially delayed "final agency action" on the permit and thereby allowed the Agency to initiate and complete consultation prior to the permit becoming a "final agency action," consultation was timely. OAR Post-Consultation Br. at 9 & n.5.

We agree with the proposition that to ensure compliance with the law, any consultation required under the ESA148 should in the ordinary course conclude prior to issuance of the final federal PSD permit. Notably, neither the CAA PSD provisions nor the associated PSD regulations specifically mention the ESA or in any way require that the PSD and ESA processes be performed concurrently or be integrated. Although Petitioners argue that several statutory and/or regulatory provisions should be "read together" to require that the two processes be performed in this manner, see Pet'rs Post-Consultation Br. at 11, we do not find this argument persuasive because none of the cited PSD provisions reference the ESA, much less specify a time frame for ESA consultation. Consequently, we conclude that the PSD and ESA processes are separate and need not necessarily be performed simultaneously or in a wholly integrated fashion. 149

This being said, while neither the ESA nor its implementing regulations specify when the consultation process needs to be completed vis-à-vis the associ

148 Again, consultation is not required for all PSD permits. As OAR/OGC points out, consultation is required only when the federal action "may affect" listed species or designated critical habitat. OAR/OGC Brief at 6.

149 In a somewhat analogous situation, we considered the question of when National Environmental Policy Act ("NEPA”) reviews should be performed in the PSD permitting context. See In re Hadson Power-Buena Vista 14, 4 E.A.D. 258, 297-300 (EAB 1992). Unlike the ESA, NEPA is actually referenced by the PSD regulations. See 40 C.F.R. § 52.21(s). Specifically, the PSD regulations provide that review "conducted pursuant to this section [of the regulations] shall be coordinated with the broad environmental reviews under [NEPA] *** to the maximum extent feasible and reasonable." Id. Because the PSD regulations do not mandate precisely how the two analyses be conducted or linked, we concluded that "coordination [of the PSD and NEPA reviews] is all that is required of the PSD permitting authority, and only to the extent feasible and reasonable." Hadson Power, 4 E.A.D. at 299. Such an interpretation of the permitting authority's requirements applies even more strongly here where there are no regulations that specifically link the PSD and ESA requirements.