Northwest Environmental Advocates v. United States Environmental Protection Agency

Filing 149

ORDER: The Court ADOPTS IN PART Magistrate Judge Acostas Summary Judgment F&R 132 . NWEAs motion 78 for summary judgment is granted with regard to Claims 1, 2, 6, and 7, with the exception of NWEAs Claim 1, 6, and 7, based on TMDLs approve d by the EPA prior to September 27, 2006; and denied as moot with regard to Claims 3, 4, and 5. The EPAs cross motion 88 for summary judgment and Intervenor-Defendants cross motions 92 , 95 , and 96 for summary judgment joining in the EPAs cros s-motion, are denied in all respectsexcept as to NWEAs Claim 1, 6, and 7, to the extent it is based on TMDLs approved by the EPA prior to September 27, 2006. The Court ADOPTS Magistrate Judge Acostas Voluntary Remand F&R 133 . The EPAs motion 89 f or voluntary remand is granted. During the remand period, the Willamette Mercury TMDL should be left in place. The EPA and Oregon must submit a revised Willamette mercury TMDL and Klamath temperature TMDL within two years of the date below. Plaintiff shall prepare an appropriate Judgment consistent with this Order, and after conferring with counsel for Defendants and Intervenors, shall submit it to the Court for signature within 30 days of the date below. If the parties cannot agree on a Judgment, they should notify this Courts Courtroom Deputy, who will schedule a telephone conference. IT IS SO ORDERED. Signed on 4/11/2017 by Judge Marco A. Hernandez. (ecp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

NORTHWEST ENVIRONMENTAL
ADVOCATES,
Plaintiff,
No. 3:12-cv-01751-AC
v.
ORDER
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendant,
and
STATE OF OREGON, OREGON WATER
QUALITY STANDARDS GROUP, and
THE FRESHWATER TRUST,
Intervenor-Defendants.

1 – ORDER

HERNÁNDEZ, District Judge:
Before this Court are two Findings & Recommendations (“F&Rs”), referred from
Magistrate Judge Acosta, addressing cross-motions for summary judgment in a case brought by
Plaintiff Northwest Environmental Advocates (“NWEA”). NWEA alleges that Defendant
Environmental Protection Agency (“EPA”) violated the Administrative Procedures Act (“APA”),
Clean Water Act (“CWA”), and Endangered Species Act (“ESA”). NWEA brings 10 claims
against the EPA. The State of Oregon (“Oregon”), Oregon Water Quality Standards Group
(“OWQSG”), and The Freshwater Trust have intervened as defendants.
NWEA challenges the EPA’s review and approval, or lack of approval, of certain
temperature and mercury Total Maximum Daily Loads (“TMDLs”) submitted by Oregon.
Specifically, NWEA’s claims target 14 Oregon temperature TMDLs (“temperature TMDLs”)
approved by the EPA between 2004 and 2010; the Klamath Basin temperature TMDL (“Klamath
Basin TMDL”) submitted by Oregon but never approved by the EPA; and the Willamette Basin
mercury TMDL (“Willamette Basin TMDL”) approved by the EPA in September of 2006. Sec.
Am. Compl. ¶¶ 3-10, ECF 11.
Magistrate Judge Acosta’s first F&R [132] (“Summary Judgment F&R”) addresses the
temperature TMDL claims and partially grants summary judgment to NWEA and partially grants
summary judgment to the EPA. See Summ. J. F&R 46, ECF 132. NWEA, the EPA, Oregon, and
OWQSG all object to the F&R.
The second F&R [133] (“Voluntary Remand F&R”) addresses the Klamath Basin TMDL
and the Willamette Basin TMDL. See Vol. Remand F&R, ECF 133. Judge Acosta grants the
EPA’s motion for voluntary remand of these two TMDLs. Id. at 27. OWQSG objects.

2 – ORDER

The matter is now before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal
Rule of Civil Procedure 72(b). When any party objects to any portion of the Magistrate Judge's
Findings & Recommendation, the district court must make a de novo determination of that
portion of the Magistrate Judge's report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d
930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc). The Court has conducted such a review and adopts portions of the F&Rs and declines to
adopt other portions, as explained below. The Court has also reviewed the pertinent portions of
the record de novo and finds no other errors in the F&Rs beyond what are discussed in this
Order. Because Judge Acosta’s F&Rs include all of the necessary factual background regarding
this case, this Order does not repeat the facts except when necessary.
I.

Claims 1-3: CWA Claims
The parties do not object to Judge Acosta’s findings and recommendations as to Claims

1, 2, and 3. The Court finds no errors and, accordingly, adopts this portion of the Summary
Judgment F&R.
I.

Claims 4-5: Potentially Moot CWA Claims
The Court adopts Judge Acosta’s recommendation to deny NWEA’s fourth and fifth

claims as moot. No party has objected to Judge Acosta’s determination that the invalidation of
the NCC should be applied retroactively and that, therefore, the EPA’s approvals of temperature
TMDLs based on the NCC were arbitrary and capricious. Therefore, entirely new TMDLs (that
are not based on the NCC) will need to be established. The issue is whether NWEA is entitled to
a ruling on the merits underlying Claims 4 and 5 to determine whether there are additional
reasons that the EPA’s approval of the TMDLs was arbitrary and capricious.

3 – ORDER

This Court concludes that, even if Claims 4 and 5 are not technically moot, it is not
necessary to reach the merits of these claims. See, e.g., Air Line Pilots Ass'n, Int'l v. UAL Corp.,
897 F.2d 1394, 1397 (7th Cir. 1990) (“Although the word ‘moot’ is sometimes used to refer to an
issue that need not be decided in light of the resolution in the same opinion of another issue . . . it
has never been thought that a court that does decide it thereby violates Article III's implied
prohibition against deciding moot cases. The conceptual reason is that it is cases rather than
reasons that become moot.”) (internal citations omitted). Judge Acosta properly exercised his
discretion to decline to address alternative reasons why the TMDLs’ approval was arbitrary
capricious. See, e.g., Wilderness Watch, Inc. v. U.S. Fish & Wildlife Serv., 629 F.3d 1024, 1032
n. 5 (9th Cir. 2010) (“Because we hold that Plaintiffs prevail on their claim under the Wilderness
Act, we need not and do not reach their claim under the National Environmental Policy Act.”);
Air Line Pilots Ass'n, 897 F. 2d at 1397(“Whether a court gives one or ten grounds for its result
is not a question to which Article III prescribes an answer.”). The Court adopts his
recommendation.
II.

Claims 6-7: ESA Claims
The Court declines to adopt Judge Acosta’s findings and recommendation as to Claims 6

and 7. Judge Acosta granted summary judgment to the EPA and the Intervenors. This Court
grants summary judgment to NWEA instead.
NWEA’s sixth and seventh claims allege that the EPA violated the Endangered Species
Act (“ESA”), 16 U.S.C. § 1540(g)(1)(A), in two ways. First, the EPA failed to consult with Fish
and Wildlife Service or the NOAA Fisheries Service (collectively, “the Services”), prepare
biological assessments, or make a “no-effects” finding before approving Oregon’s Temperature

4 – ORDER

TMDLs.1 Second, the EPA failed to consult with the Services on the full scope of the Willamette
Basin Temperature TMDL.
The Supreme Court has called the ESA “the most comprehensive legislation for the
preservation of endangered species ever enacted by any nation.” Tennessee Valley Auth. v. Hill,
437 U.S. 153, 176 (1978). The ESA reflects “a conscious decision by Congress to give
endangered species priority over the ‘primary missions' of federal agencies.” Id. at 185.
“The heart of the ESA is section 7(a)(2), 16 U.S.C. § 1536(a)(2).” W. Watersheds Project
v. Kraayenbrink, 632 F.3d 472, 495 (9th Cir. 2011). Section 7 imposes on all agencies a duty to
consult with the Services before engaging in any discretionary action that may affect a listed
species or critical habitat. Karuk Tribe of California v. U.S. Forest Serv., 681 F.3d 1006, 1020
(9th Cir. 2012) (citing Turtle Island Restoration Network v. Nat'l Marine Fisheries Serv., 340
F.3d 969, 974 (9th Cir. 2003)). The purpose of consultation is to obtain the expert opinion of
wildlife agencies to determine whether the action is likely to jeopardize a listed species or
adversely modify its critical habitat and, if so, to identify reasonable and prudent alternatives that
will avoid the action's unfavorable impacts. Id.
Section 7(a)(2) of the ESA provides:
Each Federal agency shall, in consultation with and with the assistance of the Secretary,
insure that any action authorized, funded, or carried out by such agency (hereinafter in
this section referred to as an “agency action”) is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the destruction or
adverse modification of [critical] habitat of such species....
16 U.S.C. § 1536(a)(2) (emphasis added). Regulations implementing Section 7 provide:
Each Federal agency shall review its actions at the earliest possible time to determine
whether any action may affect listed species or critical habitat. If such a determination is
made, formal consultation is required[.]
NWEA’s Complaint states that this claim does not apply to Oregon’s Snake River TMDL or the
Willamette Basin TMDLs. Sec. Am. Compl. 38, fn. 13, ECF 11.
1

5 – ORDER

50 C.F.R. § 402.14(a) (emphasis added).
In order to be an “agency action” requiring Section 7 consultation, the Court must
conclude that the action was an “action authorized, funded, or carried out by [a federal] agency.”
Karuk, 681 F.3d at 1020 (citing 16 U.S.C. § 1536). In addition, the ESA implementing
regulations limit Section 7’s application to “actions in which there is discretionary Federal
involvement or control.” Id. Therefore, the obligation of a federal agency to consult with the
Services is based on a two-fold inquiry. Id. at 1021. “First, we ask whether a federal agency
affirmatively authorized, funded, or carried out the underlying activity. Second, we determine
whether the agency had some discretion to influence or change the activity for the benefit of a
protected species.” Id.
Judge Acosta addressed the second part of the Karuk inquiry first. He found that the EPA
had the requisite discretion to influence or change the activities authorized in the TMDL for the
benefit of a protected species. Summ. J. F&R 36. However, when examining the first part of the
Karuk inquiry, Judge Acosta concluded that the EPA’s approval of the TMDLs was not an
affirmative action for the purposes of the ESA. Summ. J. F&R 42. Alternatively, he found that
the EPA’s consultation with regard to Oregon’s water quality standards, including the NCC,
covered the TMDLs subsequently approved by the EPA as implementing the NCC, thereby
eliminating the need for a second ESA consultation on TMDLs implementing NCC-Based
Criteria. Summ. J. F&R 42. Therefore, even though Judge Acosta disagreed with the EPA’s
assertion that its “no effect” finding for the Willamette Basin TMDL could be imputed to
subsequent TMDLs, Judge Acosta found no ESA violation. In addition, Judge Acosta found that
NWEA’s claim based on TMDLs approved by the EPA prior to September 27, 2006 is barred by

6 – ORDER

the applicable statute of limitations on all claims except NWEA’s Second Claim for Relief under
the CWA.
Both NWEA and the EPA object to Judge Acosta’s conclusions regarding Claims 6 and
7. NWEA objects to Judge Acosta’s conclusion, under the first Karuk factor, that the EPA’s
decision approving a TMDL is not an “affirmative action” triggering ESA § 7 consultation
requirements. NWEA also objects to Judge Acosta’s alternative finding that the EPA was not
required to consult on its approval of the NCC-based TMDLs because they were subsumed
within the EPA’s prior consultation on the NCC. Finally, NWEA objects to Judge Acosta’s
conclusion that NWEA’s ESA claims for the four older TMDLs are time-barred.
Even though Judge Acosta granted summary judgment in its favor, the EPA raises two
objections. The EPA disagrees with Judge Acosta’s conclusion, under the second Karuk factor,
that the EPA had discretion to take action to benefit listed species by disapproving the TMDLs.
The EPA also objects to the conclusion that it was required to make separate explicit findings
that each of the TMDLs had “no effect” on listed species. The EPA contends that its two
arguments provide additional reasons for why ESA § 7 consultation was not required. In
addition, the EPA argues that the Court does not need to reach Claims 6 and 7 at all, because if it
adopts the F&R regarding Claims 1-3, the TMDLs will be unlawful due to CWA violations,
regardless of any potential ESA violations.
In this Order, the Court addresses the Karuk factors in the order that has been laid out by
the Ninth Circuit. Therefore, the Court first discusses whether the EPA’s approval of a TMDL is
an affirmative agency action. Then, the Court considers whether the EPA had discretion to
change the action for the benefit of a protected species. After analyzing these two Karuk factors,
the Court addresses the remaining objections regarding whether the EPA was required to make

7 – ORDER

separate findings that each of the TMDLs had “no effect” on the listed species; whether the
EPA’s prior consultation on the NCC relieved it of a duty to consult on its approval of the NCCbased TMDLs; and whether the ESA claims for the four older TMDLs are time-barred.
A. The EPA’s decision approving a TMDL is an affirmative action triggering ESA
§ 7 consultation requirements.
The first issue under Karuk is whether the EPA’s approval of a TMDL is an affirmative
agency action. The ESA’s use of the term “agency action” is to be construed broadly. Karuk, 661
F.3d at 1021. Examples of such action include, but are not limited to, actions intended to
conserve listed species or their habitat; the promulgation of regulations; the granting of licenses,
contracts, leases, easements, rights-of-way, permits, or grants-in-aid; or actions directly or
indirectly causing modifications to the land, water, or air. 50 C.F.R. § 402.02. An agency must
consult with the Services under Section 7 only when it makes an “affirmative” action or
authorization. Id.
Judge Acosta concluded that the EPA’s approval of a TMDL is not an “affirmative
agency action,” such that it would trigger Section 7 consultation. In reaching his decision, Judge
Acosta relied on two district court cases. See Grand Canyon Trust v. U.S. Bureau of
Reclamation, No. CV078164PCTDGC, 2008 WL 4417227 (D. Ariz. Sept. 26, 2008); Shell Gulf
of Mexico v. Center for Biological Diversity, Inc., Case No. 3:12-cv-00048-RRB, Order on
Summ. J., ECF 159 (D. Alaska Aug. 5, 2013).
Grand Canyon considered whether the United States Bureau of Reclamation (“the
Bureau”) violated the ESA by failing to consult with the Fish and Wildlife Service (“FWS”) each
time the Bureau prepared an annual operating plan (“AOP”) for the Glen Canyon Dam (“Dam”),
which creates Lake Powell in Arizona. Id. at *8. The Bureau only had a duty to consult with the
FWS if each AOP was an affirmative agency action that triggered the ESA’s consultation
8 – ORDER

requirements. Id. at *8-9. Thus, the court had to decide whether an AOP is an affirmative agency
action.
The Grand Canyon court agreed with the Bureau that the AOP was nothing more than a
report to Congress and relevant Governors on past and projected Dam operations and, thus, was
not an affirmative agency action. Id. at *9. In reaching its conclusion, the court examined the
history of Dam operation decisions and the nature of AOPs. Id. at *11.
The Bureau operates the Dam using a water release system known as the “modified low
fluctuating flow” or “MLLF.” Id. at *1. The decision to use the MLLF approach was made when
the Secretary of the Interior accepted the Bureau’s Final Environmental Impact Statement
recommendation by signing a Record of Decision in 1996. Id. at *13. Then, the Bureau formally
established Operating Criteria for the Dam as required by Congress in the Grand Canyon
Protection Act. Id. (referencing Pub. L. No. 102-575, 106 Stat. 4600, §§ 1801-1809). The Act
also required the Bureau to “transmit to the Congress and to the Governors of the Colorado River
Basin states a report . . . on the preceding year and the projected year operations undertaken
pursuant to this Act. Id. at *11; see also Grand Canyon Trust v. U.S. Bureau of Reclamation, 691
F.3d 1008, 1018 (9th Cir. 2012), as amended (Sept. 17, 2012) (Bureau “is required by statute to
prepare and submit an AOP each year”).
The 2008 AOP at issue in Grand Canyon set forth projected releases from several
reservoirs in the Colorado River Basin from October 2007 through September 2008. Id. at *14.
The projections were based on “forecasted in-flows and the criteria established in the 1996 ROD
and the Operating Criteria.” Id. The actual releases from the Dam were governed by the MLFF
flow regime adopted in the 1996 ROD and the Operating Criteria. Id.

9 – ORDER

The Grand Canyon court concluded that the AOP was not an affirmative agency action
because it was merely an “educated guess” as to what the actual releases would be from the Dam
for the following year. Id. at 15. The court explained that the plaintiff’s “true complaint was with
the use of the Bureau’s MLFF system, a decision made in the ROD and Operating Criteria, not in
the AOP.” Id. In addition, the Bureau did not exercise discretion in the AOP that could benefit
the humpback chub, an endangered species. Id. The Secretary’s selection of MLFF in the ROD
and the issuance of the Operating Criteria constrained the Bureau’s discretion and
“foreordain[ed] the use of MLFF in the AOP.” Id.
The Ninth Circuit affirmed the Arizona District Court’s conclusion that the AOP was not
an affirmative agency action. Grand Canyon Trust v. U.S. Bureau of Reclamation, 691 F.3d 1008
(9th Cir. 2012), as amended (Sept. 17, 2012). In addition to concurring with the conclusion that
the Bureau did not exercise discretion “that inures to the benefit of the chub” by preparing each
AOP, the Ninth Circuit reiterated that “[i]t is truly the selection of MLFF as the operating criteria
which creates the environmental effects of concern to the Trust” rather than the “agency’s
routine reporting in each AOP.” Id. at 1021. Because the agency had complied with ESA
consultation requirements before the Secretary chose MLFF, there was no ESA violation. Id. The
Ninth Circuit concluded:
Our decision on this is also pragmatically required. It is called for and legally required to
permit environmental challenge under the ESA for want of consultation about an
endangered or threatened species whenever the agency establishes material operating
criteria for a dam, and when it embarks on a significant new direction in its operations.
But to allow ESA challenge on an annual basis for each AOP would be unduly
cumbersome and unproductive in addressing the substance of environmental issues.
Annual challenges could not likely be resolved fully before the next AOP came along,
and there is no benefit to endangered species in having an unending judicial process
concerning annual reporting requirements that Congress mandated.
Id.

10 – ORDER

In Shell Gulf, the court considered whether oil response plans submitted by Shell and
approved by the Department of Interior’s Bureau of Safety and Environmental Enforcement
(“BSEE”) were the type of agency action that triggered ESA consultation. Shell Gulf of Mexico
v. Center for Biological Diversity, Inc., Case No. 3:12-cv-00048-RRB, Order on Summ. J. 34,
ECF 159 (D. Alaska Aug. 5, 2013). The court concluded that the oil response plan approvals
were not affirmative agency actions because they merely stated that the oil response plans met
regulatory and statutory requirements. Id. Approval of the plans would not lead to any oil-spillresponse activities because the BSEE does not have the authority to authorize any oil spill
cleanup response. Id. Such authority lies with other agencies; therefore, the BSEE’s action in
approving the oil response plans would have no effect on listed species or critical habitat. Id.
This Court also considers Karuk Tribe of California v. United States Forest Service, 681
F.3d 1006 (9th Cir. 2012). In Karuk, the Ninth Circuit considered whether the Forest Service’s
approval of miners’ Notices of Intent (“NOI”) to operate mining activities constituted agency
action triggering Section 7 consultation requirements. Id. at 1012-13. A miner who might cause
disturbance of surface resources is required to submit a NOI to the appropriate District Ranger,
who in turns notifies the miner within 15 days whether the NOI is approved or whether a more
detailed plan is required. Id. at 1013. The Ranger requires a plan if, in his discretion, he
determines that the operation will likely cause significant disturbance of surface resources. Id.
The Ninth Circuit held that, when the Forest Service approves a NOI, that approval
constitutes an affirmative action for Section 7 purposes because it affirmatively authorizes
mining activities. Id. at 1021. The Court rejected the argument that the Forest Service advised
rather than authorized mining activities by approving a NOI. Id. at 1023. A NOI approval “marks
the consummation of the agency’s decision making process and is an action from which legal

11 – ORDER

consequences will flow.” Id. (quoting Hells Canyon Pres. Council v. U.S. Forest Serv., 593 F.3d
923, 930 (9th Cir. 2010)). The Court also rejected the argument that the underlying mining
activities are authorized by the General Mining Law, rather than the agency’s approval of the
NOIs. Id. The Court explained that “private activities can and do have more than one source of
authority, and more than one source of restrictions on that authority.” Id. Finally, the Court
rejected the notion that approval of a NOI was “merely a decision not to regulate the proposed
mining activities.” Id. Instead, the Court concluded that the Forest Service authorizes mining
activities when it approves a NOI and affirmatively decides to allow the mining to proceed. Id.
Drawing lessons from Grand Canyon, Shell Gulf, and Karuk, this Court concludes that
the EPA’s approval of the TMDLs in this case was an affirmative action that triggered ESA § 7
consultation requirements. The Court respectfully disagrees with Judge Acosta that approval of a
TMDL merely implements the criteria found in the water quality standards. The EPA’s approval
of the TMDLs changed the water quality standards. “[T]he higher numerical temperature criteria
contained in the TMDLs effectively revised the Biologically-Based Criteria” and, therefore,
revised the relevant water quality standard. See Summ. J. F&R 31-32. In other words, during the
time period that the TMDLs were approved, 2004-2010, the Biologically-Based Criteria were the
applicable water quality standard and, thus, the EPA’s approval of the TMDLs is what allowed
for higher temperatures. Id. at 26. This approval was affirmatively authorized by the EPA. As
NWEA argues, “[b]ecause Judge Acosta found that the NCC-derived TMDLs are actually
revised water quality standards and EPA was under a mandatory duty to consider them under
CWA section 303(c), it necessarily follows that any EPA approval of the NCC-derived TMDLs
is the functional equivalent of an approval under section 303(c), which indisputably triggers
section 7 consultation.” NWEA Obj. to Summ. J. F&R 23, ECF 140.

12 – ORDER

As in Karuk, the EPA’s approval of TMDLs authorizes the state’s implementation of
pollution controls to proceed. In addition, just as the approval of NOIs in Karuk was enforceable
by the Forest Service, the EPA’s approval of a TMDL has binding legal effects and affects the
entire CWA enforcement regime. Finally, just as the Forest Services’ rules in Karuk require the
agency to respond to a NOI and affirmatively act to approve or deny, the CWA requires the EPA
to affirmatively approve or deny a state’s TMDL within 30 days of submission. See 33 U.S.C. §
1313(d)(1)(D)(2).
Grand Canyon and Shell Gulf are distinguishable. In Grand Canyon, the court
determined that the selection of MLFF, not the issuance of the AOP, created the environmental
effects at issue. In contrast, here, the TMDL approval itself is what authorized the higher
temperatures that allegedly would harm the listed species. As to Shell Gulf, the approval of oil
response plans differs from the approval of TMDLs. The oil response plan approvals merely
stated that the plans met regulatory and statutory requirements. In contrast, approval of the
TMDLs changed the applicable water quality standards and, thus, is an affirmative act or
authorization. Further, when the EPA approves a TMDL, “the state must incorporate the . . .
TMDLs into its ‘continuing planning process.’” Pronsolino v. Nastri, 291 F.3d 1123, 1128 (9th
Cir. 2002). TDML approval has legal effects and is not merely a statement that it meets statutory
requirements.
In sum, the Court concludes that, contrary to Judge Acosta’s findings and
recommendation, the EPA’s approval of the TMDLs in this case was an affirmative action that
triggered ESA § 7 consultation requirements.

///

13 – ORDER

B. Judge Acosta correctly found that the EPA had some discretion to influence or
change the activity for the benefit of a protected species.
The next question is whether the EPA had “some discretion to influence or change the
activity for the benefit of a protected species.” Karuk, 681 F.3d at 1021. Judge Acosta concluded
that the EPA had the requisite discretion to influence or change the activities in the TMDL for
the benefit of a protected species. The Court agrees.
Judge Acosta explained that, because the NCC-Based Criteria contained in the TMDLs
do not implement the applicable water quality standards, the EPA had the discretion to
disapprove the TMDLs under 33 U.S.C. § 1313(d). Summ. J. F&R 36. Alternatively, if the NCCBased Criteria set forth in the TMDLs revised the existing water quality standard, then the EPA
had a duty to consult with regard to water quality standards and, thus, had the discretion to deny
such water quality standards for the benefit of a protected species under 33 U.S.C. § 1313(c). Id.
The EPA objects to Judge Acosta’s finding. The EPA argues that its authority to deny
TMDLs because they are inconsistent with the applicable water quality standards, or any
authority to deny them because do not comply with 33 U.S.C. § 1313(c), “is not tantamount to
discretion to deny TMDLs for the benefit of listed species.” EPA Obj. 6, ECF 138. Instead, “it is
simply authority to deny the TMDLs because they do not meet CWA requirements.” Id. The
EPA argues that it had no legal authority to disapprove the TMDLs once it concluded that the
TMDLs met the water quality standards and other requirements. Thus, ESA Section 7 procedures
did not apply.
The parties appear to agree that the benchmark for approval of a TMDL is whether it is
set at a level that will meet the applicable water quality standards. See 33 U.S.C. § 1313(d)(1)(C)
(providing that a TMDL “shall be established at a level necessary to implement the applicable
water quality standards with seasonal variations and a margin of safety which takes into account
14 – ORDER

any lack of knowledge concerning the relationship between effluent limitations and water
quality.”). However, they disagree about whether an assessment of the benefit of a TMDL’s
disapproval on ESA-listed species must be included in a determination of a TMDL’s satisfaction
of water quality standards.
NWEA’s argument requires the Court to connect the dots between various parts of the
CWA statute. First, as noted above, the EPA must determine whether a TMDL is established at a
level necessary to implement the applicable water quality standards. 33 U.S.C. § 1313(d)(1)(C).
“Standards,” as used in the statute, includes both “criteria” and “designated uses.” 33 U.S.C. §
1313(c)(2)(A)(water quality standard “shall consist of the designated uses of the navigable
waters involved and the water quality criteria for such waters based upon such uses”); see also
Anacostia Riverkeeper, Inc. v. Jackson, 798 F. Supp. 2d 210, 228 (D.D.C. 2011) (“subsection
(1)(C)’s instruction to develop a TMDL protective of water quality standards is an instruction to
determine the pollutant load level necessary to safeguard all designated uses”). Oregon’s coldwater salmonids, many of which are listed as threatened and endangered under the ESA are
relevant designated uses for temperature quality standards. See AR0465, AR0466; Or. Admin. R.
340-014-0028 (“The purpose of the temperature criteria in this rule is to protect designated
temperature-sensitive, beneficial uses, including specific salmonid life cycle stages in waters of
the State.”).
Thus, according to NWEA, the CWA imposes upon the EPA a duty to determine whether
a TMDL is established at a level necessary to implement water quality standards that do not
negatively impact salmonids. The ability to approve the TMDL based on whether it implements
standards as to threatened and endangered species is what gives the EPA the discretion to take
action to benefit the listed species.

15 – ORDER

The EPA argues that it had no legal authority to disapprove the TMDLs once it
concluded that the TMDLs met the water quality standards and other requirements. However,
Judge Acosta found that the TMDLs did not meet the water quality standards. Because the
TMDLs did not meet the water quality standards, the EPA had the authority to disapprove them.
This authority is the basis for the EPA’s discretion to take action by disapproving the TMDLs in
order to implement water quality standards for the benefit of endangered or threatened species.
Therefore, Judge Acosta correctly found that the EPA had discretion to change the activity for
the benefit of a protected species.
C. Judge Acosta correctly concluded that the EPA was required to make separate
findings that each of the TMDLs had “No Effect” on the listed species.
At summary judgment, the EPA argued that it was not required to consult with the
Services on the TMDLs because it had determined that approval of the TMDLs in implementing
the NCC would have “no effect” on listed species. Judge Acosta disagreed and the Court adopts
his findings and recommendation as to this issue.
The ESA requires consultation when an agency’s action is likely to result in jeopardy to
protected species or critical habitat. 50 C.F.R. § 402.12(a). However, formal consultation is not
required where the agency makes a determination the action will have no effect on the listed
species. Sw. Ctr. for Biological Diversity v. U.S. Forest Service, 100 F.3d 1443, 1447 (9th Cir.
1996).
It is undisputed that the EPA made a “no effect” finding for the Willamette Basin TMDL,
yet failed to engage in the same analysis in the subsequent TMDLs. Judge Acosta concluded that
the “no effect” finding for the Willamette Basin TMDL did not automatically apply to all
subsequent TMDLs, even if the analysis would have been similar or identical. Summ. J. F&R 44

16 – ORDER

(“While the rationale of the Willamette Basin TMDL “no effect” finding may apply to the
subsequent TMDLs, the EPA, not the court is obligated to engage in such analysis.”).
The EPA objects to the F&R because it alleges that the stated rationale for the EPA’s “no
effect” determination for the Willamette TMDL and the Snake River-Hells Canyon TMDL
applies equally to all TMDLs. At most, according to the EPA, its error was harmless.
Even if the EPA’s analysis of the Willamette Basin TMDL would have applied to
subsequent TMDLs, that is not for the Court to decide. The EPA’s failure to document its
decision as to the subsequent TMDLs deprives the Court from being able to review the decision
and assess whether formal consultation was, in fact, unnecessary. See, e.g., Nat'l Wildlife Fed'n
v. Fed. Emergency Mgmt. Agency, 345 F. Supp. 2d 1151, 1175 (W.D. Wash. 2004) (“The lack of
any documentation to support FEMA's ‘no effect’ determination precludes any judicial review of
FEMA’s apparent ‘determination’ and undermines the other Section 7(a)(2) consultation
procedures that only allow an agency to avoid formal consultation through a biological
assessment or a concurrence letter following informal consultation with FWS or NMFS.) (citing
50 C.F.R. § 402.14(b)(1)).
The EPA raises other objections it contends were raised in its summary judgment brief
but not addressed by Judge Acosta. The Court has considered the EPA’s additional objections
and concludes that they do not form any basis by which to reconsider Judge Acosta’s conclusion.
In sum, the EPA was required to make separate findings that each of the TMDLs had “No
Effect” on the listed species.
D. Judge Acosta erred in concluding that the EPA fulfilled the consultation
requirement by consulting on Oregon’s 2004 water quality standards.
Even if the EPA’s approval of the TMDLs triggered Section 7 consultation because it
was an affirmative agency action involving the exercise of agency discretion, Judge Acosta
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found that the EPA satisfied the ESA’s consultation requirement. According to Judge Acosta,
“[a]gency approvals of actions that were contemplated in the prior approval of an action subject
to an ESA consultation are subsumed within the prior consultation.” Summ. J. F&R 39 (citing
Shell Gulf of Mexico, Inc. v. Ctr. for Biological Diversity, Inc., No. 1:12-CV-00010-RRB, 2013
WL 11311847, at *1 (D. Alaska Aug. 5, 2013), rev'd and remanded on other grounds sub nom.
Shell Gulf of Mexico Inc. v. Ctr. for Biological Diversity, Inc., 771 F.3d 632 (9th Cir. 2014)). The
Court respectfully disagrees and declines to adopt this portion of Judge Acosta’s F&R.
On February 4, 2004, the EPA issued a “Biological Evaluation of the Revised Oregon
Water Quality Standards for Temperature, Intergravel Dissolved Oxygen, and Antidegradation”
(“the NCC BiEv”). AR 464. In the NCC BiEv, the EPA discussed Oregon’s proposed natural
condition criteria (NCC) and concluded that “criteria based on natural conditions” was “fully
protective of salmonid uses, even if the natural conditions are higher than the numeric criteria for
some waterbodies, because river temperatures prior to human impacts clearly supported healthy
salmonid populations.” AR 464 at 25680. The EPA further concluded that the NCC “may affect,
but is not likely to adversely affect” several species such as bull trout, Lahontan cutthroat trout,
Oregon chub, Warner sucker, Lost River sucker, shortnose sucker, and Modoc sucker. Id. at
25681.
On February 24, 2004, the FWS issued a “Biological Opinion for EPA’s Proposed
Approval of Revised Oregon Water Quality Standards for Temperature, Intergravel Dissolved
Oxygen, and Antidegradation” (“FWS BiOp”). AR 465. The FWS agreed with the EPA’s
conclusion as to the effect of the NCC on the “subject species.” Id. at 25797. The FWS wrote:
“We concur with EPA’s determination of may affect, not likely to adversely affect the subject
species. Natural conditions can create situations which are adverse to a species; however, the

18 – ORDER

extent of this adverse effect is not anticipated to cause significant harm or injury.” Id. The NMFS
also agreed with the EPA’s conclusion in its biological opinion issued on February 23, 2004
(“NMFS BiOp”). AR 466.
Judge Acosta concluded that the FWS’ and the NMFS’ February 2004 biological
opinions satisfied the EPA’s duty to consult under the ESA. According to Judge Acosta, “it is
clear both the EPA and the Services considered the possibility the NCC-Based Criteria would
exceed the Biologically-Based Criteria and would lead to adverse effects on listed species.”
Therefore, Judge Acosta concluded that the subsequent approvals of TMDLs issued pursuant to
the NCC were covered by the ESA consultation on the NCC with FWS and NMFS and did not
require a second consultation.
NWEA objects to Judge Acosta’s conclusion for two reasons: (1) NWEA contends that
there are no prior consultations on the NCC that could subsume consultation on the NCC-based
TMDLs because, in Judge Acosta’s earlier Opinion in this dispute2, Judge Acosta held that the
NCC was illegal and vacated the biological opinions from the prior consultation; and (2) even if
such prior consultation remained valid, it could not subsume the EPA’s duty to consult on the
NCC-based TMDLs because the assumptions underlying the consultation were false and the
biological opinions were unlawful. See Nw. Envtl. Advocates v. U.S. E.P.A., 855 F. Supp. 2d
1199, 1204 (D. Or. 2012).
The Court agrees with NWEA’s first objection. The ESA Remedy Order vacated the
biological opinions from the prior consultation and, therefore, those opinions could not subsume

2

The parties in this case have been involved in litigation over Oregon’s water quality standards for many
years. The first two cases resulted in the vacatur of major provisions of Oregon’s water quality standards
for temperature. See Nw. Envtl. Advocates v. U.S. Envtl. Prot. Agency, 268 F. Supp. 2d 1255 (D. Or.
2003) (“NWEA I”); Nw. Envtl. Advocates v. U.S. Envtl. Prot. Agency, 855 F. Supp. 2d 1199 (D. Or. 2012)
(“NWEA II”).
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the need for consultation on the NCC-based TMDLs. See NWEA’s Obj. Ex. B, Stipulated Order
on Nonpoint Source and Endangered Species Act Remedies (“ESA Remedy Order”), ECF 140-1.
Therefore, the EPA did not satisfy the ESA’s consultation requirement.
E. NWEA’s sixth claim under the ESA is time-barred as applied to the Applegate,
Walla Walla, and Sandy Basin TMDLs.
In Claim 6, NWEA alleges that the EPA failed to consult with the Services before
approving Oregon’s temperature TMDLs. Sec. Am. Compl. 38, ECF 11. In addition to ruling
against NWEA’s sixth claim on the merits, Judge Acosta held it was time-barred by the six-year
statute of limitations at 28 U.S.C. § 2401(a) as to the Applegate, Walla Walla, and Sandy Basin
TMDLs. Summ J. F&R 11-15. The Court agrees with Judge Acosta.
The general civil action statute of limitations found in 28 U.S.C. § 2401(a) applies to
actions brought against the federal government under the ESA. Alsea Valley Alliance v. Evans,
161 F. Supp. 2d 1154, 1160 (D. Or. 2001). Section 2401(a) provides that every civil action
against the United States “shall be barred unless the complaint is filed within six years after the
right of action first accrues.” A right of action first accrues under § 2401(a) when an
administrative action becomes final. Crown Coat Front Co. v. United States, 386 U.S. 503, 522
(1967).
Judge Acosta concluded that the action accrued when the EPA approved the TMDLs.
Because more than six years passed from the approval of the Applegate, Walla Walla, and Sandy
Basin TMDLs until the filing of the complaint, any ESA claims based on the approval of these
TMDLs are time-barred. NWEA objects, arguing that the EPA’s failure to consult is a continuing
violation and, thus, each day the agency fails to act (consult) is a new violation and so the claim
cannot be time-barred.

20 – ORDER

NWEA relies on Institute for Wildlife Protection v. United States Fish and Wildlife
Service, No. 07-CV-358-PK, 2007 WL 4117978 (D. Or. Nov. 16, 2007) (F&R adopted by Judge
Brown). In that case, the ESA required the FWS to designate critical habitat within a year after
listing a species as endangered and perform status reviews of the listed species every five years.
Id. at *1. Judge Brown found that the statute of limitations did not apply to claims alleging that
FWS failed to perform a mandatory, statutory duty to designate critical habitat. Id. at *6. Judge
Brown noted that “the statute of limitations was inapplicable because the plaintiff did not
‘complain about what the agency has done but rather about what the agency has yet to do’ in
order to comply with its binding statutory duty to identify and to manage wilderness in the
national park system.” Id. (quoting Wilderness Soc'y v. Norton, 434 F.3d 584, 589 (D.C. Cir.
2006)). Judge Brown concluded that each day that FWS failed to designate critical habitat was a
discreet, single violation of the ESA. Id.
NWEA argues that, similar to Institute for Wildlife Protection, its sixth claim does not
challenge what the EPA has done (approve the TMDLs under the CWA), but what it has yet to
do (consult under Section 7 of the ESA). NWEA cites several cases in which claims were based
on alleged agency failures to take required action.
NWEA’s objection is unavailing. NWEA’s claim is premised on the allegations that the
EPA affirmatively took action, through the exercise of its discretion, by approving Oregon’s
temperature TMDLs despite a failure to consult with the Services. The EPA’s obligation to
comply with the Section 7 consultation requirement is only triggered when making an
affirmative act or authorization, such as approving the TMDLs. See Karuk, 681 F.3d at 1021.
Thus, the statute of limitations began to run when the EPA approved the TMDLs, at which point
Plaintiff could have initiated litigation on its claims. See, e.g., Nw. Envtl. Advocates v. U.S. Envtl.

21 – ORDER

Prot. Agency, 268 F.Supp.2d 1255, 1264 (D. Or. 2003) (finding that challenges to the EPA’s
failure to exercise discretionary duty “first accrued” when the EPA rejected state-submitted
criteria); Forest Guardians v. U.S. Forest Serv., 370 F. Supp. 2d 978, 984 (D. Ariz. 2004)
(finding that cause of action accrued when agency issued permit); Nw. Envtl. Advocates v. U.S.
Envtl. Prot. Agency, No. C14-196-RSM, Order on Motions to Dismiss, ECF 51 (W.D. Wash.
July 2, 2015). Therefore, the Court adopts Judge Acosta’s F&R to the extent he concludes three
of the TMDLs at issue in NWEA’s sixth claim are time-barred.
III.

Claims 8-10: Voluntary Remand
The EPA moves to voluntarily remand the Klamath Basin temperature TMDL and the

Willamette Basin mercury TMDL. The Court adopts Judge Acosta’s recommendation to grant
the motion, without vacatur, and impose a two-year remand timeline within which the EPA and
Oregon must comply.
A. Klamath Temperature TMDL
In 2004, Oregon adopted and the EPA approved the NCC. In 2005, NWEA sued the
EPA, challenging the validity of the NCC. See NWEA II, 855 F. Supp. 2d at 1199. In February of
2012, Judge Acosta struck down the validity of the NCC. Id. However, from 2004 to 2010,
Oregon continued to submit temperature TMDLs, based on the NCC, and the EPA approved the
TMDLs.
On December 21, 2010, Oregon submitted the Klamath TMDL. In May of 2012, the EPA
issued a memorandum in which it postponed action on the TMDL until the issuance of a final
order in NWEA II. The EPA never approved the Klamath TMDL and, on February 11, 2015,
Oregon withdrew its submission of the TMDL.
NWEA’s Claim 8 alleges that the EPA violated the CWA by failing to approve or
disapprove the Klamath TMDL within 30 days of its submission by Oregon. OWQSG argues
22 – ORDER

that NWEA’s claim regarding the Klamath TMDL is moot because the EPA cannot approve or
disapprove the TMDL, given that Oregon withdrew its request for the EPA’s approval.
Accordingly, OWQSG contends that Claim 8 is moot because the requested relief cannot be
granted.
OWQSG also objects to the form of relief granted—an order that the EPA and Oregon
submit a revised Klamath TMDL within two years of the adoption of the F&R. QWQSG argues
that the EPA has no authority under the CWA to establish a TMDL until and unless it has
disapproved a TMDL submitted by the state. See U.S.C. § 1313(d)(2). In addition, Oregon has
no obligation to establish and submit the TMDL within any specific schedule and NWEA did not
seek any relief against Oregon in its Second Amended Complaint.
Oregon and the EPA do not object to the F&R, nor do they respond to OWQSG’s
objections. NWEA, however, does respond. NWEA originally opposed the EPA’s motion for
voluntary remand. See ECF 100. However, NWEA is satisfied with Judge Acosta’s decision
because the “proposed timeline for new TMDLs undoubtedly represents a significant benefit to
the environment.” NWEA Resp. to OWQSG Obj. 3, ECF 145.
This Court concludes that Judge Acosta’s F&R provides a practical and reasonable
solution to the fact that this TMDL has been in limbo for over six years. Accordingly, the Court
adopts this portion of the F&R.
B. Willamette Basin Mercury TMDL
Judge Acosta also recommends remanding the Willamette Basin TMDL and imposing a
two-year deadline for Oregon and the EPA to revise the TMDL. No party objects to this part of
the Voluntary Remand F&R. The Court has reviewed the F&R and, finding no error in this
portion, adopts Judge Acosta’s recommendation. Furthermore, the Court declines to strike Judge

23 – ORDER

Acosta’s recitation of the law as stated in Anacostia Riverkeeper, 798 Supp. 2d at 224, as
requested by OWQSG.
IV.

Miscellaneous Issue
NWEA requests that the Court make three minor changes to the Summary Judgment

F&R because Judge Acosta cites to an incorrect provision of the CWA. According to NWEA,
pages 28 and 31 of the F&R contain citations to 303(d)(1)(D) that should instead be citations to
303(d)(1)(C). NWEA Obj. 43, ECF 140. The EPA agrees. EPA Resp. 33, ECF 143. No other
party responds. Therefore, the Court grants NWEA’s request to make those changes.
CONCLUSION
The Court ADOPTS IN PART Magistrate Judge Acosta’s Summary Judgment F&R
[132]. NWEA’s motion [78] for summary judgment is granted with regard to Claims 1, 2, 6, and
7, with the exception of NWEA’s Claim 1, 6, and 7, based on TMDLs approved by the EPA
prior to September 27, 2006; and denied as moot with regard to Claims 3, 4, and 5. The EPA’s
cross motion [88] for summary judgment and Intervenor-Defendants’ cross motions [92], [95],
and [96] for summary judgment joining in the EPA’s cross-motion, are denied in all respects
except as to NWEA’s Claim 1, 6, and 7, to the extent it is based on TMDLs approved by the
EPA prior to September 27, 2006.
The Court ADOPTS Magistrate Judge Acosta’s Voluntary Remand F&R [133]. The
EPA’s motion [89] for voluntary remand is granted. During the remand period, the Willamette
Mercury TMDL should be left in place. The EPA and Oregon must submit a revised Willamette
mercury TMDL and Klamath temperature TMDL within two years of the date below.
Plaintiff shall prepare an appropriate Judgment consistent with this Order, and after
conferring with counsel for Defendants and Intervenors, shall submit it to the Court for signature

24 – ORDER

within 30 days of the date below. If the parties cannot agree on a Judgment, they should notify
this Court’s Courtroom Deputy, who will schedule a telephone conference.
IT IS SO ORDERED.

DATED this ________________ day of _________________________________ , 2017.

____________________________________________________
MARCO A. HERNÁNDEZ
United States District Judge

25 – ORDER