Posted on May 26, 2016 by Kevin Beaton
Until recently I thought state water quality agencies with oversight from EPA were in charge of setting water quality standards, establishing mixing zones and similar activities. However, the National Marine Fisheries Service (NMFS) and the United States Fish and Wildlife Service (USFWS) has recently served notice that they are the new water quality sheriffs in the Northwest.
It is well known that the Endangered Species Act (ESA) is a comprehensive statute designed to protect and recover species that are listed as threatened or endangered by the USFWS and the NMFS (collectively referred to as “Services”). One of the key provisions in the ESA is 16 USC § 1636 (or Section 7) which requires federal agencies to utilize their authority to conserve endangered species and “consult” with the Services whenever any discretionary action by the acting federal agency has the potential to negatively affect listed species. Many no doubt recall the decision in TVA v. Hill, 437 U.S. 153 (1978), in which the Court determined that Section 7 required the acting federal agency to halt construction of an almost completed major federal dam in Tennessee (Tellico Dam) because it would undisputedly eradicate the listed species (“snail darter” or perch), destroy its critical habitat and therefore completion of the dam would clearly violate Section 7.
What constitutes “jeopardy” and destruction of critical habitat under the ESA has come a long way since TVA v. Hill. The ESA gets a lot of play in the Northwest principally because there are large tracts of undeveloped federal land, human population is relatively sparse and pristine waters combine to provide habitat for many listed aquatic species such as various species of salmon. In one of the latest iterations of what constitutes “jeopardy” the Services recently determined in lengthy biologicalopinions that EPA’s approval (some twenty years ago) of Idaho’s Water Quality Standards for certain toxic metals would jeopardize the continued existence of listed species and destroy or adversely modify critical habitat.
There is a question whether EPA approval of state water quality standards pursuant to § 303 of the CWA is the type of discretionary action that even triggers ESA consultation. See National Association of Homebuilders v. Defenders of Wildlife, 551 U.S. 644 (2007) (Section 7 consultation not required when EPA authorizes state to take over the NPDES permit program under § 402 of the CWA). Assuming consultation is required, certainly there had been a lengthy delay in EPA and the Services completing consultation on Idaho Water Quality Standards (over twenty years). This delay gave rise to a lawsuit brought by regional environmental groups to force completion of the consultation. SeeNorthwest Environmental Advocates v. The National Marine Fisheries Service, USDC Idaho, Case No. 1:13-cv-00263-EJL.
But, how can a water quality criteria jeopardize the existence of an endangered species? Water quality standards under the CWA are goals set by each state for state surface waters. NPDES Permits must meet state water quality standards and if a waterbody is not meeting standards then states must adopt pollution control plans (known as “TMDLs”) to bring a waterbody into compliance also subject to EPA approval. Adoption of criteria itself cannot jeopardize endangered species or for that matter save a species.
If one has the fortitude to power through the Services lengthy biological opinions, which were not subject to public comment, there is no finding that state standards at or below the current criteria are actually harming any fish in the thousands of miles of streams and rivers affected by the opinions. Rather the Services take exception to the somewhat esoteric process by which EPA develops national recommended water quality criteria (which most states ultimately follow). The Services found EPA should have relied on different laboratory studies in developing and approving criteria. Many of the laboratory studies the Services relied upon do not even involve listed species.
The Services then suggested that EPA must adopt replacement criteria (or force the state to do so) over the next few years via reasonable and prudent alternatives (or RPAs) to avoid the alleged jeopardy. An RPA are measures “suggested” by the Services under Section 7 to the action agency (EPA) to avoid jeopardy which are within the discretion of the action agency and are economically and technically feasible. In the meantime the Services suggested as an interim measure how EPA should regulate point source dischargers into waters containing listed species by meeting certain prescribed mixing zones.
While the Services’ jeopardy determinations on Idaho’s standards are a far cry from jeopardy to the snail darter caused by the construction to the Tellico Dam many years ago, the Services’ findings may go unchallenged. It is likely EPA will follow the RPA’s (or force the state to do so) for fear of another lawsuit that EPA is violating its obligations under Section 7. Likely the only remedy to question the Services’ jeopardy determinations may be a judicial challenge to the Biological Opinions. However in such a challenge a court would be forced to evaluate the “science” behind the Services’ jeopardy determinations which is an area the courts generally will defer to the expertise of the agency. One would think that EPA or state water quality agencies would be the experts on setting water quality standards and establishing mixing zones, but the Services will no doubt claim they are now the experts. Sometimes it is difficult to figure out who is in charge.