Endangered Species Law & Policy

On April 11, 2017, the United States District Court for the District of Oregon ruled on parties’ objections to a federal magistrate judge’s findings and recommendations in a case challenging the U.S. Environmental Protection Agency’s (EPA) approval of temperature increases for over a dozen water bodies in Oregon under the Clean Water Act (CWA), the Endangered Species Act (ESA), and the Administrative Procedure Act (APA). The court ruled against EPA and overturned the magistrate judge’s findings and recommendations with respect to environmental plaintiff’s challenges to EPA’s approval of temperature total maximum daily loads (TMDLs) because it failed to consult under ESA section 7.

In 2003, the State of Oregon revised its existing water quality standards to establish new designated uses with regard to trout and salmon species, many of which were ESA-listed as threatened or endangered, and to incorporate natural conditions criteria for temperature. The natural conditions criteria allowed Oregon to increase temperature limits comparable to those that existed naturally before human interference over the previously established biologically based criteria.

Following issuance of biological opinions from the U.S. Fish & Wildlife Service and the National Marine Fisheries Service (collectively, the Services) concurring that the revised water quality standards may affect but are not likely to adversely affect listed species, the EPA approved the revised water quality standards in 2004 and went on to approve TMDLs from 2004 through 2010. In 2012, the magistrate judge held the section 7 consultations on the revised water quality standards were illegal and vacated the associated biological opinions.

The district court overturned the magistrate judge and held that EPA could not rely on the section 7 consultation conducted for the 2003 revised water quality standards to satisfy the consultation requirements for the TMDLs, even though the TMDLs were approved before the court invalidated the biological opinions in 2012. Further, EPA’s determination that two of the TMDLs would have no effect on listed species could not be extended to the rest of the approved TMDLs for which EPA made no effect determination.  EPA was required to make separate findings [for] each of the TMDLs, e.g., no effect, may affect, but not likely to adversely affect, or may adversely affect and seek section 7 consultation with the Services for any but a no effect determination.

The court agreed with the magistrate judge that EPA had violated the CWA and the APA by approving temperature TMDLs based on the natural conditions criteria, which EPA failed to demonstrate were protective of the designated uses associated with trout and salmon.