Nw. Envtl. Advocates v. United States Fish & Wildlife Serv.
| Docket Number | 3:18-cv-01420-AR |
| Decision Date | 27 November 2023 |
| Parties | NORTHWEST ENVIRONMENTAL ADVOCATES, a non-profit organization, Plaintiff, v. UNITED STATES FISH AND WILDLIFE SERVICE, a United State Government Agency, and UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, a United States Government Agency, Defendants. |
| Court | U.S. District Court — District of Oregon |
FINDINGS AND RECOMMENDATION
Oregon's bull trout is a threatened species under the Endangered Species Act (ESA), and this case concerns potentially harmful concentrations of zinc, arsenic, and selenium allowed in its habitat. The parties' cross-motions for summary judgment ask this court to decide whether federal agencies-the Environmental Protection Agency (EPA) and the Fish and Wildlife Service (FWS)-properly followed their legal obligations under the Administrative Procedure Act (APA) when they ultimately approved changes the State of Oregon made to the permissible concentrations of those pollutants. Plaintiff Northwest Environmental Advocates (NWEA) asserts that those agencies did not; that their actions were arbitrary and capricious. In this Findings and Recommendation, the court, given the substantial deference due to EPA and FWS under the APA, is not persuaded by NWEA's arguments. As explained below NWEA's motion for summary judgment should be denied and FWS and EPA's motion should be granted.[1]
NWEA brought this action against FWS and EPA under the APA, 5 U.S.C. § 701 et seq., and the ESA, 16 U.S.C § 1531 et seq. NWEA challenges FWS's 2012 Oregon biological opinion (Oregon BiOp) and EPA's subsequent approval of Oregon's proposed water quality standards (WQS) criteria for toxic pollutants. It asserts that the agencies erred in reaching a “no jeopardy” decision for bull trout with respect to acute arsenic and acute and chronic zinc levels in the 2012 Oregon BiOp. NWEA brings one claim under the APA against FWS alleging that it failed to use the best available science and that portions of the Oregon BiOp are arbitrary and capricious (Claim One). NWEA brings three claims against the EPA under the ESA's citizen-suit provisions, alleging that its actions were arbitrary and capricious when it: (1) approved Oregon's proposed WQS (Claim Two); (2) failed to re-initiate consultation with FWS when it learned new information in 2015 about the effects of arsenic and zinc on bull trout (Claim Three); and (3) failed to consult with FWS in April 2014 before approving Oregon's revised freshwater acute and chronic selenium criteria (Claim Four).
The ESA is intended to conserve and protect endangered and threatened species and their habitats. 16 U.S.C. §§ 1531 (b), (c). Substantive and procedural provisions of the ESA “prescribe[ ] the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora.” Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644, 652 (2007). Section 7 of the ESA “prohibits federal agencies from taking any action ‘likely to jeopardize the continued existence' of any listed or threatened species or ‘result in the destruction or adverse modification' of those species' critical habitat.” San Luis & Delta-Mendota Water Auth. v. Locke, 776 F.3d 971, 987 (9th Cir. 2014) (Locke) (quoting 16 U.S.C. § 1536(a)(2)). A federal action jeopardizes the continued existence of a species if it “reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.” 50 C.F.R. § 402.02.
Each federal agency is required to “review its actions at the earliest possible time to determine whether any action may affect listed species or critical habitats.” 50 C.F.R. § 402.14(a). When an agency-here, EPA-proposes an action that “may affect” a protected species or its habitat, Section 7(a)(2) requires the agency to “engage in informal or formal consultation with the Secretary of the Interior” or her designee-here, FWS.[2] Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 807 F.3d 1031, 1036 (9th Cir. 2015); 16 U.S.C. § 1536(a)(3). If FWS concludes that the agency action is likely to adversely affect a protected species or its habitat, formal consultation is required. Id. (citing San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 596 (9th Cir. 2014) (Jewell)). “After consultation, investigation, and analysis, the consulting agency then prepares a biological opinion.” Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 924 (9th Cir. 2008).
In the biological opinion (BiOp), the consulting agency must “evaluate the effects of the proposed action on the survival of species and any potential destruction or adverse modification of critical habitat” based on “the best scientific and commercial data available.” Id. (citing 16 U.S.C. §§ 1536(a)(2) & (b)); 50 C.F.C. 402.14(g)(8). The BiOp summarizes the information upon which it is based, includes a detailed discussion the proposed agency action's effects on protected species or its critical habitat, and sets out the consulting agency's opinion on whether the proposed action and its cumulative effects “is likely to jeopardize the continued existence of listed species or result in the destruction or adverse modification of critical habitat.” 16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. §§ 402.14(g)(4), (h)(1)-(3) (). “In making its jeopardy determination, the consulting agency evaluates ‘the current status of the listed species or critical habitat, ' the ‘effects of the action, ' and ‘cumulative effects.'” Nat'l Wildlife Fed'n, 524 F.3d at 924 (quoting 50 C.F.R. § 402.14(g)(2)-(3)). “Effects of the action” include direct and indirect effects of an action that add to the “environmental baseline.” Id. “Cumulative effects” are future State or private activities “that are reasonably certain to occur within the action area.” 50 C.F.R. § 402.02.
If the consulting agency determines that jeopardy or adverse modification of critical habitat for listed species is likely, the agency's action must be modified, and the consulting agency may suggest “reasonable and prudent alternatives” that it believes would not violate Section 7(a)(2). Bennett v. Spear, 520 U.S. 154, 158 (1997); 16 U.S.C. § 1536(b)(3)(A). If the consulting agency determines that the proposed action is not likely to jeopardize or adversely modify critical habitat and that the incidental taking of listed species will not violate Section 7(a)(2), the consulting agency “can issue an Incidental Take Statement which, if followed, exempts the action agency from the prohibition on takings found in Section 9 of the ESA.” Ctr. for Biological Diversity v. FWS, 807 F.3d at 1036 (quoting Nat'l Wildlife Fed'n, 524 F.3d at 924-25) (simplified); Locke, 776 F.3d at 988 (citing 50 C.F.R. § 402.02).
After formal consultation has concluded, there may be other circumstances that trigger agency re-initiation of consultation. For example, an agency must re-initiate consultation “where discretionary Federal involvement or control over the action has been retained or is authorized by law” and new information “reveals effects of the action that may affect listed species or critical habitat in a manner or to an extent not previously considered.” 50 C.F.R. § 402.16(a)(2). Additionally, “an agency cannot meet its [S]ection 7 obligations by relying on a [b]iological [o]pinion that is legally flawed[.]” Ctr. for Biological Diversity v. U.S. Bureau of Land Mgmt., 698 F.3d 1101, 1127 (9th Cir. 2012).
The Clean Water Act (CWA) is intended “to restore and maintain the chemical, physical, and biological integrity of the Nation's waters.” 33 U.S.C. § 1251(a). “States have the ‘primary responsibilities and rights' to ‘prevent, reduce, and eliminate pollution' and ‘to plan the development and use (including restoration, preservation, and enhancement) of land and water resources[.]'” Deschutes River All. v. Portland Gen. Elec. Co., 249 F.Supp.3d 1182, 1186 (D. Or. 2017) (quoting 33 U.S.C. § 1251(b)). The CWA imposes certain duties on states, including Section 303, which requires states to adopt and revise water quality standards for waters within the state. 33 U.S.C. §§ 1313(a)-(c)(1). The EPA periodically develops and publishes recommended WQS reflecting the latest scientific knowledge to provide guidance for states when establishing their respective WQS. 33 U.S.C. § 1314(1). The CWA directs states to submit any new or revised WQS to EPA for review. 33 U.S.C. §§ 1251(d), 1313(c)(2)(A).
Bull trout are salmonids native to the coastal and intermountain west of North America. (Pl.'s Mot. Summ. J. at 4, ECF No 48.) The bull trout's range includes the Pacific Northwest, from coastal drainages in the Puget Sound to Southern Oregon, and most major rivers basins, such as the Columbia, Willamette, and Klamath Rivers and their tributaries. (Id.) Bull trout exhibit resident or migratory behavior. Endangered and Threatened Wildlife and Plants; Determination of Threatened Status for Bull Trout, 64 Fed.Reg. 58910 (Nov. 1, 1999), available at 1999 WL 981804. Resident and migratory bull trout may be found together and may produce offspring exhibiting either...
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