Section 7 of the Endangered Species Act (“ESA”) requires federal agencies which have undertaken “any action authorized, funded or carried out by such agency” to consult with the U.S. Fish & Wildlife Service to ensure that such action is not likely to jeopardize the continued existence of a protected species. See 16 U.S.C. § 1536(a)(2). Likewise, USF&WS’s rules provide that each federal agency shall review its actions to determine whether any action may affect listed species or critical habitat. If such a determination is made, formal consultation is required. See 50 C.F.R. § 402.14(a).
A federal district court in Oregon ruled recently that EPA’s approval of state-issued TMDLs can qualify as “federal actions” which subject EPA to a consultation obligation. See Northwest Environmental Advocates v. USEPA (D. Or. April 11, 2017). There, the court concluded that the operative two-part inquiry had been spelled out in Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1020 (9th Cir. 2012). The two-part test required the court first to ask whether a federal agency “affirmatively authorized, funded or carried out the underlying activity.” Second, the court must determine whether the agency had some discretion to influence or change the activity for the benefit of a protected species.
A U.S. magistrate had recommended that summary judgment be granted to EPA after determining that EPA’s decision approving a TMDL is not an “affirmative action” triggering ESA § 7 consultation requirements. The magistrate found that EPA’s approval was not an affirmative action because the approval of a TMDL merely implements the criteria found in water quality standards that have already been approved by EPA in an earlier “affirmative action.”
The district judge, however, disagreed with both parts of the magistrate’s analysis. First, because the temperature TMDLs at issue in this case effectively modified the existing water quality criterion, the court found the approval of the TMDL to be an “affirmative action.” The water quality standard at issue included both biologically-based numerical temperature criteria and a “natural conditions criteria,” which allowed the state to increase the temperature criteria after determining the water temperatures that existed naturally before human interference exceeded the biologically-based criteria. Those standards are discussed in the magistrate’s original recommended opinion. The TMDLs at issue included temperature thresholds exceeding the biologically-based numeric criteria based on the natural conditions criteria. It is unclear whether the district court would have ruled the same way had it determined that the TMDL did not effectively modify the existing water quality criterion.
Second, the district court found that, in its approval of TMDLs, EPA had some discretion to influence or change the activity for the benefit of a protected species, thereby satisfying the second prong of the test in Karuk. The district ruled that, because the TMDLs did not meet the biologically-based numeric criteria, but instead were based on the alternative natural conditions criteria, EPA had the authority to disapprove them, and that authority provided EPA with discretion to take action for the benefit of endangered or threatened species. EPA had argued that it had no legal authority to disapprove the TMDLs once it concluded that they met existing water quality standards.
This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.