331 F. Supp. 3d 1210
W.D. Wash.2018Background
- Wild Fish Conservancy (Conservancy) challenges EPA's 2011 approval of Washington's 1996 sediment management revisions, which exempt marine finfish rearing facilities (net pens) from general sediment standards; Conservancy alleges risks to listed Puget Sound salmonids.
- EPA previously delayed initial review of the 1996 revisions until after litigation; EPA approved them in 2008 after informal consultation with NMFS, which the Conservancy successfully challenged in 2010 (WFC I) for failing to use certain recovery plans as best available science.
- EPA reconsulted in 2011 (incorporating additional materials) and again concluded informal consultation was sufficient and that approval was "not likely to adversely affect" listed species; Conservancy filed this suit challenging the 2011 process and result.
- Conservancy also alleges EPA and NMFS failed to reinitiate consultation after post-2011 events (2012 infectious salmon virus outbreak, 2016 steelhead critical-habitat designation, 2017 net-pen collapse and mass escapement) that could reveal new effects on listed species.
- Defendants moved to dismiss: Cooke (intervenor) invoked res judicata based on WFC I; Federal Defendants argued EPA had no duty to consult or to reinitiate because its approval was nondiscretionary or did not change the baseline, and NMFS lacked authority to be compelled to reinitiate.
- The court denied the motions: held res judicata did not bar the new claims; held EPA had a Section 7 duty to consult on water-quality-standard approvals and retained discretionary involvement to require reinitiation; and held NMFS shares the duty/authority to reinitiate consultation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Res judicata as to 2011 claims | WFC: 2011 consultation/approval is distinct from 2008 and not precluded | Cooke: prior WFC I judgment bars identical claims | Denied — 2011 action differs in time/substance; WFC I did not resolve these claims on the merits |
| Duty to consult under ESA on EPA approval of state water-quality standards | WFC: EPA action to approve/disapprove is a federal action that may affect listed species and triggers Section 7 consultation including net-pen effects | EPA: approval merely reviewed 1996 baseline; no "agency action" triggering ESA duty or scope excluding net-pen effects | Denied — EPA approval is an ESA-triggering agency action and consultation scope includes net-pen effects (disease, escapement) |
| Duty to reinitiate consultation (discretionary involvement/control) | WFC: post-approval events and new info (2012, 2016, 2017) required reinitiation because EPA retains authority to act under CWA/agency policies | Defs: EPA lacks ongoing discretionary control over state standards; no ability to implement measures benefiting species, so no reinitiation duty | Denied — EPA retains discretionary involvement/control under CWA and agency MOA/memos, so reinitiation duty can be triggered by new information/events |
| NMFS authority/duty to reinitiate consultation | WFC: NMFS (consulting agency) shares duty to reinitiate when triggers occur | Defs: NMFS can only request reinitiation; ultimate duty falls on action agency (EPA) | Denied — Ninth Circuit precedent supports that consulting agency (NMFS) shares duty/authority to reinitiate consultation |
Key Cases Cited
- Tennessee Valley Authority v. Hill, 437 U.S. 153 (U.S. 1978) (ESA gives endangered species priority and broad conservation mandate)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility standard for pleadings)
- Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must state a plausible claim)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (U.S. 1984) (agency statutory interpretation entitled to deference)
- National Ass'n of Home Builders v. Defenders of Wildlife, 551 U.S. 644 (U.S. 2007) (consultation obligation limited to actions with discretionary federal involvement)
- Salmon Spawning & Recovery Alliance v. Gutierrez, 545 F.3d 1220 (9th Cir. 2008) (duty to reinitiate consultation lies with both action and consulting agencies)
- Gifford Pinchot Task Force v. U.S. Fish & Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) (new facts mandate reinitiation of formal consultations)
- Environmental Protection Information Center v. Simpson, 255 F.3d 1073 (9th Cir. 2001) (analysis of agency retained authority and ongoing obligations to protect species)
- Cottonwood Environmental Law Center v. U.S. Forest Service, 789 F.3d 1075 (9th Cir. 2015) (agency discretion to act for species recovery can trigger consultation/reinitiation obligations)
- Washington Toxics Coalition v. Environmental Protection Agency, 413 F.3d 1024 (9th Cir. 2005) (EPA discretion to take measures under FIFRA/CWA places actions within ESA §7 ambit)