Background
The Clean Water Act requires states to promulgate water quality standards and directs the EPA to develop nationwide recommendations for criteria. The Endangered Species Act requires federal agencies to consult with the Fish and Wildlife Service before taking agency action that may affect listed species. In 2016, the EPA revised its recommendations for cadmium without consulting the Services, asserting that consultation was only required when approving state standards.
The court’s reasoning
The panel held that the EPA’s publication of section three hundred four recommendations is agency action that may affect listed species. The court found that states are not free to ignore these recommendations, as they serve as a default that states must justify departing from, and the EPA historically uses them when directly promulgating standards for noncompliant states. This predictable influence establishes traceability for standing purposes. The court concluded that consultation would likely lead to stricter recommendations, redressing the injury to the plaintiff’s members.
The dissent
What it means going forward
The decision requires the EPA to engage in formal consultation with the Fish and Wildlife Service before issuing nationwide water quality criteria recommendations that may affect endangered species. It reinforces that non-binding federal guidance can constitute agency action under the Endangered Species Act when it effectively controls state regulatory outcomes.