Opinion
3:18-cv-01420-AR
11-27-2023
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.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD UNITED STATES MAGISTRATE JUDGE
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.
The court finds oral argument is not helpful to resolution of the issues. LOCAL RULE 7-1(d)(1).
BACKGROUND
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).
A. Statutory Scheme
1. Endangered Species Act Section 7
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. 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).
FWS administers the ESA for species under the jurisdiction of the Secretary of the Interior and the National Marine Fisheries Service (NMFS) administers the ESA for species under the jurisdiction of the Secretary of Commerce. Nat'l Ass'n of Home Builders, 551 U.S. at 651.
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) (defining “jeopardy” and “no jeopardy” biological opinions). “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).
2. Clean Water Act Section 303
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).
B. Bull Trout in Oregon
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. “Resident bull trout complete their life cycles in the tributary streams in which they spawn and rear. Migratory bull trout spawn in tributary streams, and juvenile fish rear from 1 to 4 years before migrating to either a lake (adfluvial), river (fluvial), or in certain coastal areas, saltwater (anadromous), to mature.” 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 resident or migratory behavior. Bull trout have specific habitat requirements, including “water temperature, cover, channel form and stability, valley form, spawning and rearing substrates, and migratory corridors.” Id. at 58911. Bull trout have a “patchy distribution, even in undisturbed habitats, ” and are unlikely to occupy all available habitats simultaneously. Id.
FWS and EPA filed separate administrative records. (Notice of Lodging of Admin. R., ECF Nos. 14, 44.) Due to their size, the administrative records were submitted on thumb drives. NWEA submitted the 2015 Idaho Biological Opinion as an exhibit to the Declaration of James N. Saul, ECF No. 21-3. Consistent with the parties' practice and for clarity, the court identifies record cites and exhibits by their prefixes and Bates numbers.
In 1999, the entire coterminous United States bull trout population was listed as “threatened” under the ESA. (Pl.'s Mot. Summ. J. at 5.) In 2010, 19, 729 miles of stream and 488, 252 acres of lakes were designated as critical habitat for bull trout. (FWS 34-36.) In Oregon, 2, 836 miles of rivers and streams and 30, 256 acres of lakes and reservoirs are designated as bull trout critical habitat, comprising about 15 percent of the bull trout's total designated stream critical habitat and less than seven percent of its lake and reservoir critical habitat. (Pl.'s Mot. Summ. J. at 5; FWS 35-36.) In comparison, Idaho has 8, 772 miles of stream and 170, 217 acres of lakes and reservoirs designated as bull trout critical habitat. (FWS 36.) Discrete populations of bull trout are organized by FWS into interim recovery units (IRUs), with two IRUs in Oregon: the Klamath River IRU and the Columbia River IRU. (FWS 47-48.) Designated bull trout critical habitat within Oregon contains 13 discrete critical habitat units (CHUs). (FWS 60-62.) Those CHUs include all or portions of the Columbia, Deschutes, John Day, Klamath, and Willamette Rivers. (FWS 60-62.) FWS estimates that the Oregon bull trout population is between 4, 600 to 13, 200 fish. (FWS 56-61.)
C. Factual and Procedural Background
1. EPA Approves Oregon's Water Quality Standards for Certain Toxins
In July 2004, Oregon, through its Department of Environmental Quality (ODEQ), proposed changes for a range of numeric water quality standards (WQS) for certain toxic pollutants designed to protect aquatic life in Oregon's surface waters. (FWS 17; Pl.'s Mot. Summ. J. at 5-6; Defs.' Cross Mot. Summ. J. at 3, ECF No. 57.) Oregon's proposed revisions changed the acute and chronic water quality criteria for 20 pollutants, including arsenic, selenium, and zinc. The water quality criterion for each pollutant specifies the numeric concentration, duration, and frequency of exceedance that establishes the legal limit of pollutants in state waters. (Defs.' Cross Mot. Summ. J. at 3.) The criteria specify the dissolved concentrations of the pollutant in the water column that must not be exceeded to protect the designated aquatic life use of the waters. The aquatic life freshwater acute criterion refers to the maximum average concentration for one hour that may not be exceeded more than once in a three-year period. (FWS 27.) The aquatic life freshwater chronic criterion refers to the average concentration for 96 hours that should not be exceeded more than once in a three-year period. (FWS 27.)
Oregon submitted its amended proposed changes to its WQS to EPA in July 2004, and amended submissions in April 2007 and July 2011. (Pl.'s Mot. Summ. J. at 6.) The CWA requires EPA to review and approve Oregon's revised WQS. 33 U.S.C. §1313(d)(2). Because EPA's approval is an agency action that may affect listed species under Section 7 of the ESA, EPA consulted with FWS. (FWS 17; EPA 6877.) On January 16, 2008, EPA issued to FWS its biological evaluation (BE) of its proposed action. (FWS 17.)
On July 30, 2012, FWS issued the Oregon BiOp for EPA's approval of Oregon's revised WQS for acute and chronic arsenic and zinc. (FWS 1.) Notably, the Oregon BiOp concludes that EPA's approval of the revised WQS for toxic pollutants would cause “no jeopardy” to bull trout and would not destroy or adversely modify its designated critical habitat. (FWS 357.) FWS also concluded that exposure of bull trout to the revised WQS would result in incidental take of bull trout in the locations where such exposure was reasonably certain to occur. (FWS 371.) Specifically, FWS anticipates that exposure to all toxics would result in incidental take of bull trout: (1) if the acute criteria for all toxics were to occur concurrently, a maximum likelihood of lethal harm to 813 adult bull trout every three years, or 8.8 percent of the adult bull trout population in the action area, associated with 820.6 miles of habitat; (2) if the chronic criteria for all toxics were to occur concurrently, a maximum likelihood that 1, 116 bull trout may be killed (12.2 percent of adult population) and 6, 953 bull trout will experience reduced fitness due to reductions in growth or reproduction every three years, associated with 820.6 miles of habitat. (FWS 371.)
Based largely on the Oregon BiOp, EPA partially approved and partially disapproved Oregon's revised WQS criteria for toxic pollutants on January 31, 2013, and approved other revised criteria on April 11, 2014. (EPA 1-3.)
2. 2015 Idaho BiOp
On June 25, 2015, FWS issued a BiOp for revisions to the State of Idaho's WQS criteria (2015 Idaho BiOp), for toxic pollutants, including chronic arsenic and acute and chronic zinc at the same or more stringent concentrations as those EPA approved in Oregon. (Compl. ¶ 62; NWEA 406-797.) In the 2015 Idaho BiOp, FWS concluded that Idaho's proposed WQS criteria for chronic arsenic and acute and chronic zinc were likely to jeopardize the continued existence of bull trout. (NWEA 676-77, 682-83.)
3. Consultation and Litigation History
In July 2004, the Oregon Department of Environmental Quality submitted revised water quality standards (WQS) for toxic pollutants to EPA for consideration and approval. EPA, NMFS, FWS, and ODEQ met to discuss the scope of the consultation and agreed that the consultation was limited to aquatic life criteria that were changed from the previous criteria. (FWS 17.) In August 2005, the agencies met to discuss EPA's draft methodology for its biological evaluation (BE), which would form the biological analysis of the effects to threatened and endangered species. (FWS 17.) In April 2006, NWEA filed an action against EPA for failing to perform its required duty to approve or disapprove of the WQS within the timelines set forth in the CWA. See NWEA v. U.S. EPA, Case No. 3:06-cv-00479-HA (D. Or. filed Apr. 7, 2006). That case resolved with a court-enforced deadline requiring EPA to act on Oregon's submission. (Compl. ¶ 47.)
In January 2008, FWS received a letter and the BE from EPA requesting formal consultation. In April 2008, FWS informed EPA that it needed additional information to complete its review of the BE to initiate formal consultation. (FWS 17.) FWS, NMFS, and EPA met to discuss issues with the BE and concerns about EPA's methodology. On May 29, 2008, the court entered a consent decree between EPA and NWEA for EPA to complete it approval or disapproval of the revised WQS's, which included a timeline for FWS to complete its Oregon BiOp. (Id.) On May 26, 2009, NWEA filed a Notice of Intent to sue EPA for unreasonable delay in approving or disapproving the WQS's.
In August 2009, FWS submitted to EPA a Draft Method for Analysis of [FWS's] Biological Opinion for Oregon's Water Quality Criteria for Toxic Chemicals. (FWS 18.) In October 2009, FWS entered into an interagency agreement for funding of a U.S. Geological Survey scientist to assist with developing a prototype of the analysis. (Id.)
In 2010, NWEA brought another action, this time against FWS and NMFS to force the services to prepare the Oregon BiOp. See NWEA v. NMFS, Case No. 3:10-cv-00907-BR (D. Or. filed Aug. 2, 2010). That case was quickly resolved when the parties agreed that NMFS would complete their consultation on December 31, 2011, and FWS would complete its consultation on June 30, 2012, later extended to extended to July 30, 2012. (FWS 18.)
4. This Action
On July 27, 2018, NWEA filed this action alleging that FWS violated the APA by failing to use the best available science in reaching its conclusion that Oregon's revised water quality criteria for chronic exposure to arsenic, chronic exposure to selenium, and acute and chronic exposure to zinc would not cause jeopardy to bull trout or result in adverse modification of its critical habitat. (Compl. ¶¶ 70-73.) NWEA also alleges that EPA violated ESA Section 7 when it partially approved Oregon's revised water quality criteria for toxics on January 31, 2013, based on the flawed Oregon BiOp. (Id. ¶ 76.) Alternatively, NWEA argues that EPA violated ESA Section 7's implementing regulations when it failed to reinitiate consultation with FWS when the 2015 Idaho BiOp revealed new information about the potential effects of Oregon's chronic arsenic and chronic zinc water quality criteria on bull trout. (Id. ¶¶ 81-85.) NWEA additionally claims that EPA failed to formally consult with FWS prior to approving Oregon's revised criterion for chronic selenium on April 11, 2014. ( Id. ¶¶ 87-90.)
On February 20, 2019, FWS and EPA lodged administrative records with this court. (Notice of Lodging Admin. R., ECF No. 14.) On May 3, 2019, NWEA filed a motion to complete and supplement the administrative record, contending that the court should consider extra-record evidence, including 21 additional scientific studies and the 2015 Idaho BiOp, to support its APA claim against FWS. (Mot., ECF No. 20.) On December 20, 2019, Magistrate Judge John V. Acosta issued an Opinion and Order denying NWEA's motion, concluding that NWEA failed to sustain its burden of demonstrating that the 21 documents “constitute superior scientific data than that considered in the preparation of the 2012 Oregon BiOp” and failed to show “clear evidence that the existing record is inadequate to effectively review the claims at bar.” (Op. & Order 23-24, ECF No. 31, available at NWEA. v. U.S. Fish & Wildlife Serv., Case No. 3:18-cv-01420-AC, 2019 WL 6977406 (D. Or. Dec. 20, 2019).) Judge Acosta further rejected NWEA's request to consider the 2015 Idaho BiOp as part of the administrative record for its APA claim against FWS. (Id. at 24-25.) Judge Acosta determined, however, that the extrarecord evidence may be considered when addressing NWEA's ESA citizen-suit claims against EPA. (Id. at 33-34.) On April 9, 2020, District Judge Marco A. Hernandez affirmed Judge Acosta's Opinion and Order. (Order, ECF No. 41.) On March 23, 2022, this action was reassigned to this court. (Notice of Reassignment, ECF No. 64.)
LEGAL STANDARDS
Summary judgment is appropriate if the pleadings and supporting documents “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “However, the legal standards for resolving a motion for summary judgment are inconsistent with the standards for judicial review of agency action.” Nw. Env't Def. Ctr. v. U.S. Army Corps of Eng'rs, 479 F.Supp.3d 1003, 1011 (D. Or. 2020) (simplified), appeal dismissed 2022 WL 1314388 (9th Cir. Feb. 14, 2022). Where there are no material factual disputes and the administrative record before the court is complete, summary judgment serves as the appropriate vehicle for the court to conduct its review of the agency action. Occidental Eng'g Co. v. I.N.S., 753 F.2d 766, 769-70 (9th Cir. 1985); Nw. Env't Def. Ctr., 479 F.Supp.3d at 1011; Defs. Of Wildlife v. Salazar, 729 F.Supp.2d 1207, 1215 (D. Mont. 2010) (“Summary judgment is a particularly appropriate tool for resolving claims challenging agency action.”).
Because the ESA does not provide its own standard of judicial review, agency decisions under the ESA are reviewed under the APA's arbitrary or capricious standard. See Bennett, 520 U.S. at 174-77; Jewell, 747 F.3d at 601. Section 706(2)(A) of the APA requires a court to uphold agency action on review unless it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “The scope of review under the ‘arbitrary and capricious' standard is narrow and a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
An action is arbitrary and capricious where it “relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [its decision is] so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” State Farm, 463 U.S. at 43; Ctr. for Biological Diversity v. Esper, 958 F.3d 895, 910 (9th Cir. 2020). The court analyzes “whether the agency considered the relevant factors and articulated a rational connection between the facts found and the choice made.” Pac. Coast Fed. of Fishermen's Ass'n v. NMFS, 265 F.3d 1028, 1034 (9th Cir. 2001) (internal quotations and citations omitted); Greater Yellowstone Coal., Inc. v. Servheen, 665 F.3d 1015, 1023 (9th Cir. 2011). “Where the agency has relied on relevant evidence such that a reasonable mind might accept as adequate to support a conclusion, its decision is supported by substantial evidence.” Jewell, 747 F.3d at 601 (simplified). “Even if the evidence is susceptible of more than one rational interpretation, the court must uphold the agency's findings.” Id.
DISCUSSION
A. Evidence to Be Considered
Judge Acosta previously denied NWEA's motion to complete or supplement the administrative record with leave to refile if “clear evidence” surfaces suggesting that “supplementation is necessary to resolve dispositive motions.” (Op. & Order at 34, ECF No. 31, available at NWEA v. FWS, 2019 WL 6977406, at *13.) NWEA now renews its motion to supplement the record, contending that its previously filed documents are necessary to determine whether FWS considered all relevant factors. (Pl.'s Mot. at 8 n.6.) NWEA's renewed motion is denied. NWEA points to no new evidence-let alone “clear evidence”-suggesting that supplementation is necessary.
Defendants also renew their objections to Judge Acosta's Opinion and Order permitting the court to consider extra-record evidence to evaluate NWEA's three citizen-suit claims against EPA under the Endangered Species Act. (Defs.' Cross Mot. at 5 n.6.) Defendants' objection is denied. The court declines to revisit Judge Acosta's well-reasoned and thorough December 2019 Opinion and Order concerning the scope of review. See Conservation Congress v. U.S. Forest Serv., Case No. 2:13-cv-00934-JAM-DB, 2020 WL 2770068, at *4 (E.D. Cal. May 28, 2020) (permitting plaintiff to supplement record under Endangered Species Act citizen-suit provision, following Judge Acosta's “particularly persuasive” reasoning in the 2019 Opinion and Order); Ctr. for Biological Diversity v. Bernhardt, 595 F.Supp.3d 890, 907 (D. Ariz. 2022) appeal filed (9th Cir. May 31, 2022) (holding that some extra-record evidence was admissible to evaluate whether agencies violated ESA by refusing to reinitiate consultation after receiving the information contained in the documents and notice of intent to sue).
In short, the court will not consider any extra-record evidence when evaluating NWEA's APA claim against FWS (Claim One); it may consider the extra-record evidence as detailed by Judge Acosta in the December 2019 Opinion and Order when evaluating NWEA's citizen suit claims against EPA (Claims Two through Four).
B. Claim One Against FWS under the APA - 2012 Oregon BiOp
1. Best Available Science
“The ESA requires an agency to use ‘the best scientific and commercial data available' when formulating a BiOp.” Locke, 776 F.3d at 995 (quoting 16 U.S.C. § 1536(a)(2)); see also 50 C.F.R. § 402.14(g)(8). An agency's failure to use the best available scientific data violates the APA. Id. “The determination of what constitutes the best scientific data available belongs to the agency's special expertise....When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential.” Jewell, 747 F.3d at 602 (simplified). “The purpose of the best available science standard is to prevent an agency from basing its action on speculation and surmise.” Locke, 776 F.3d at 995 (citing Bennett, 520 U.S. at 176). An agency may not “disregard available scientific evidence that is in some way better than the evidence it relies on, ” however, it is not required “to conduct new tests or make decisions on data that does not yet exist.” Id. (citing Kern Cnty. Farm Bureau v. Allen, 450 F.3d 1072, 1080 (9th Cir. 2006), and Am. Wildlands v. Kempthorne, 530 F.3d 991, 998-99 (D.C. Cir. 2008)) (simplified). “An agency complies with the best available science standard so long as it does not ignore available studies, even if it disagrees with or discredits them.” Id.
NWEA argues that, because FWS's assessment of chronic arsenic criterion's effect on bull trout was limited to a review of laboratory data and toxicity modeling, the 2012 Oregon BiOp failed to use the best scientific and commercial data available. Unlike the 2015 Idaho BiOp, which relied on the field studies and resulted in a “jeopardy” determination for bull trout when considering the same proposed chronic arsenic criterion, the 2012 Oregon BiOp relied on statistical models, for which the inputs were derived from laboratory testing and surrogate species. Compare FWS 474 (no jeopardy for bull trout) with NWEA 406 (jeopardy for bull trout). NWEA posits that the models used by FWS accounted only for waterborne exposure to toxic pollutants and fail to account for other paths of exposure, such as diet.
FWS responds that the different jeopardy conclusions in the two BiOps is the product of its discretionary exercise of professional judgment and different facts. Without the extra-record evidence from which NWEA wishes to rely (and which the court has concluded that it will not), FWS argues that NWEA is left with little else to challenge its choices other than three studies, which FWS asserts are not better than the data on which it relied to assess the impact of dietary arsenic. Rather, FWS asserts that it reasonably relied on modeling, reasonably relied on surrogate data, and that its scientific determinations are sufficiently technical and robust and entitled to deference. As explained below, the court concludes that FWS did not violate its statutory duty to use the best available science.
a. dietary pathways, bioaccumulation, and the field studies
NWEA argues that FWS failed to use the best available science in the Oregon BiOp because it ignored several field studies and failed to adequately consider indirect effects, such as diet, bioaccumulation, and sediment, when assessing chronic arsenic and zinc toxicity on bull trout. NWEA contends that, by focusing on studies of a single source of pollutant and considering waterborne exposure only, FWS violated its statutory duty to use the best available science.
NWEA argues that FWS ignored what NWEA considers the “primary literature, ” namely studies that it believes show adverse effects from chronic arsenic on bull trout that are most likely caused by dietary rather than waterborne exposures:
• Kiser et al. 2010 study-shows that all metals studied were “transferred to salmonids through the dietary pathway” being more strongly correlated to arsenic levels in fish tissue than food chain pathways. FWS 14727. NWEA highlights that the Kiser study shows that “[l]aboratory studies may underestimate effects of diet-borne contaminants to salmonids” and that “site-specific field investigations can be invaluable in evaluating risks to threatened species such as bull trout.” (FWS 14729.)
• Cockell et al. 1991-discussed chronic toxicity of arsenic in juvenile rainbow trout. (FWS 61273.)
• Hansen et al. 2004-noted reduced growth of rainbow trout that were fed a diet of invertebrates that were pre-exposed to metal-contaminated sediments. (FWS 61347.)
• Erickson et al. 2010-studied the growth rate of juvenile fish fed a diet of live worms exposed to copper, cadmium, lead, and arsenic. (FWS 61336.)
• Besser et al. 2007-found the bull trout prey base would be reduced if exposed to the chronic zinc criterion.
(Pl.'s Mot. Summ. J. at 25.) Those studies are put forth by NWEA as representative of the best available science and that the 2015 Idaho BiOp relied on them to find that a dietary exposure is “likely to increase the adverse effects of each contaminant addressed.” (NWEA 544-45.) Without those studies, NWEA asserts, FWS's Oregon BiOp inadequately considered dietary and bioaccumulation pathways as additive to adverse effects of chronic arsenic on bull trout and is therefore not based on the best available science.
In response, FWS highlights that it relied on EPA's robust discussion of indirect effects in the BE, including diet, bioaccumulation, and bioconcentration when considering toxicity of arsenic on bull trout. FWS argues it considered both waterborne and dietary exposure, building upon EPA's analysis in the BE and a secondary literature review; the studies put forth by NWEA were not included because they involved multiple contaminants or chemical mixtures, and they did not associate adverse effects to a water column concentration. In FWS's view, because the studies identified by NWEA also suffer flaws, they are not superior data and its evaluation was reasonable. FWS is correct.
In the Oregon BiOp, FWS found “little supporting evidence that dietary arsenic would contribute any additional, significant adverse effects beyond water-only exposure to invertebrates or fish.” (FWS 179, 182 (same for zinc).) NWEA overlooks FWS's discussion of arsenic in the toxic modes of action discussion in the Oregon BiOp, which summarized the extensive analysis of provided by EPA in the BE. (FWS 32047-32051 (discussing studies showing bioaccumulation of arsenic in tissue samples of rainbow trout, bluegill, and cladocerans).) In the Oregon BiOp, FWS discussed EPA's evaluation of whole-body residue in fish, including studies showing reduced growth and survival for rainbow trout. (FWS 182 (citing FWS 32049-50).) The Oregon BiOp noted that accumulation of arsenic in fish tissues as exposure increases, but that the exposures from the bioaccumulation studies were “well above chronic criteria concentrations.” (FWS 182 (citing FWS 32049-50).) In the BE, the EPA also considered and discussed studies showing the “potential for adverse effects” of acute and chronic arsenic exposure “due to direct toxicity to their prey” and “loss of food items.” (FWS 32046.) This included a specific discussion of juvenile and adult bull trout prey. (FWS 32047.) Examining the available data for 35 potential prey species, EPA concluded that “the acute and chronic criterion would not result in a meaningful reduction in the available prey” for the bull trout. (FWS 32047.)
EPA also evaluated the “potential risks from bioaccumulated arsenic” via exposure to chronic criterion from all routes combined, including whole-body residue-effects studies with arsenic for bluegill (Gilderhus 1966) and rainbow trout (McGeachy and Dixon 1990). (FWS 32048.) EPA noted that adverse effects of bioaccumulated arsenic “occurred at whole body residues lower than the concentration expected to bioaccumulate from exposure to chronic water quality criteria.” (FWS 32049.) EPA then carefully examined the specific studies, and found that the “residues associated with the adverse effects” were higher than the proposed chronic arsenic criterion. EPA thus concluded that because the proposed water column concentration for arsenic was lower, it was sufficiently protective. (FWS 32050.) Building on EPA's BE, FWS reviewed two additional studies (including Erickson et al. 2011) and noted that arsenic can accumulate as exposure increases, but noted the exposure values were “well above chronic criteria concentrations.” (FWS 182.)
Against this analysis of dietary arsenic exposure, NEWA contends that FWS ignored three additional studies, namely Cockrell et al. 1991, Hansen et al. 2004, and Erickson et al. 2010. However, NWEA fails to explain how these studies are superior data on dietary exposure for bull trout. For example, the Hansen 2004 and Kiser 2010 studies showed that dietary exposure to arsenic will be important to bull trout where sediments are contaminated, but those studies did not provide any association to water column concentrations. (FWS 14729, 61355). The Hansen 2004 study found that the release of metals into the water was not additive to dietary exposure for rainbow trout, and that sediments pose an important pathway. (FWS 61355.) Similarly, Erickson 2010 noted there was a need for more studies on dietary and waterborne exposure because it was unclear if dietary exposure is driven by water column concentrations or sediments. (FWS 61345.) And, Cockell 1991 focused on dietary exposure and did not discuss water column concentrations. (FWS 61273.)
It is not the court's role to weigh competing scientific studies. “The determination of what constitutes the best scientific data available belongs to the agency's special expertise and warrants substantial deference.” Friends of Santa Clara River v. U.S. Army Corps of Eng'rs, 887 F.3d 906, 924 (9th Cir. 2018) (quoting Jewell, 747 F.3d at 602) (simplified); Forest Guardians v. U.S. Forest Serv., 641 F.3d 423, 442 (10th Cir. 2011) (“Though a party may cite studies that support a conclusion different from the one the [agency] reached, it is not [a court's] role to weigh competing scientific analyses.” (quoting Ecology Ctr. v. Castaneda, 574 F.3d 652, 659 (9th Cir. 2009)). Courts must be at their most deferential when considering decisions requiring a high level of expertise. Locke, 776 F.3d at 995 (stating that courts should “be especially wary of overturning such a determination on review”). NWEA fails to overcome this high hurdle.
Thus, none of the studies NWEA identifies shows that water column concentrations of arsenic are directly associated with increased dietary and sedimentary exposure in a manner or to an extent that FWS failed to consider. Conservation Cong. v. Finley, 774 F.3d 611, 620 (9th Cir. 2014) (rejecting best available science argument). In short, NWEA has failed to show that the studies represent superior data or that FWS ignored dietary or bioaccumulation when considering chronic arsenic. Id. (noting that the court may not “substitute [its] judgment for the agency's in determining which scientific data to credit”). Because NWEA has not demonstrated that the studies are superior data or that FWS ignored dietary and bioaccumulation pathways, the court cannot conclude that FWS failed to use the best available science by excluding the field studies from its consideration.
Finally, NWEA claims that FWS acted arbitrarily when it excluded field studies “due to time constraints, ” despite recognizing that such “field studies could help provide additional information for risk assessment.” (FWS 481.) The court disagrees. As noted above, FWS was operating under time constraints to finish the Oregon BiOp, partly due to NWEA's lawsuit. (FWS 17.) To the extent NWEA contents FWS should have undertaken additional field studies, the court cannot insist on perfection. Jewell, 747 F.3d at 602 (noting the best scientific data available does not mean “the best scientific data possible”) (internal quotations omitted).
b. modeling and surrogate species
NWEA argues that FWS failed to use the best available science because it relied almost exclusively on statistical modeling in the Oregon BiOp. NWEA argues that the accuracy of the Web-ICE modeling relies heavily on “taxonomic relatedness of the surrogate and listed species” and that the chemical mode of action is a “critical component” in the toxicity estimation that FWS's modeling fails to consider. Further, NWEA contends that those limitations in the modeling precludes its use as the “sole basis for a jeopardy decision.” (Pl.'s Reply at 4 (citing Idaho BiOp), ECF No. 59.) NWEA's arguments are unconvincing for several reasons.
First, NWEA may not point to the 2015 Idaho BiOp as evidence that the Oregon BiOp is flawed. It is well settled that “post-decisional information may not be advanced as a new rationalization for attacking an agency's decision.” Ctr. for Biological Diversity v. U.S. Fish & Wildlife Serv., 450 F.3d 930, 944 (9th Cir. 2006) (simplified). As Judge Acosta explained, NWEA may not rely on information outside the administrative record to establish Claim One. As Judge Acosta explained, NWEA may not use the 2015 Idaho BiOp to question the wisdom of the previously issued Oregon BiOp. NWEA v. FWS, 2019 WL 6977406, at *11. Thus, the fact that the Oregon BiOp used modeling that a later biological opinion did not, standing alone, does not establish that FWS failed to use the best available science.
Second, NWEA fails to establish that the Web-ICE modeling used by FWS in formulating the Oregon BiOp “bears no rational relationship to the characteristics of the data to which it is applied.” Jewell, 747 F.3d at 620-21. NWEA argues that the Web-ICE model used by FWS for calculating effects of chronic arsenic on bull trout was based on taxonomic relatedness and ignores chemical modes of action, dietary pathways, and bioaccumulation. NWEA also argues that FWS relied on models due to time constraints and failed to reasonably explain its choice to rely on modeling when other field studies were available, namely, Cockell et al. 1991, Hansen et al. 2004, Erickson et al. 2010, and Kiser et al. 2010. The court disagrees with NWEA and finds that FWS has reasonably explained its choice of models and why it excluded the field studies as discussed at length above.
For bull trout, the Oregon BiOp used two models to assess acute toxicity: (1) the Interspecies Correlation Estimates (ICE) method; and (2) the Species Sensitivity Distribution (SSD) method. (FWS 449.) “The ICE model is a log-linear least-squares regression of the sensitivity relationship between surrogate and predicted taxon based on a database of acute toxicity values (Raimondo et al.).” (FWS 450.) The ICE software was developed by EPA to predict effects to aquatic species based on toxicity results from surrogate data when toxicity data for endangered and threatened species is limited. (FWS 449-50.) The SSD method is a “probabilistic model of toxicity values for multiple species” and “are used to calculate the concentration at which a specified proportion of species will be affected[.]” (FWS 454.) For chronic toxicity, FWS used a “chronic level of effects” (CLE) model that estimates the effects of exposure to the chronic criterion by “first calculating the ratio of the actual or ICE-estimated acute LC50 value for the listed species to the LC50 value for the surrogate species, and then multiplying this ratio by the assessment effects concentration for the surrogate species[.]” (FWS 464.)
Specifically, for chronic arsenic, the Oregon BiOp noted that the proposed chronic arsenic criterion is 150 micrograms per liter (pg/L) and that it was modeled for its “effects on growth and survival of bull trout.” (FWS 204.) FWS used surrogate bluegill data for evaluating growth and survival effects because “there are insufficient chronic toxicity data for bull trout or any other closely related salmonid” and FWS could not obtain toxicity data relevant to bull trout reproduction. (FWS 204.) Based on its modeling, FWS found “no reduction in growth” and found that there “appears to be no direct correlation between chronic arsenic exposure at the proposed criterion and bull trout growth.” (FWS 204.)
FWS provided a reasoned analysis why it used the Web-ICE model for calculating acute toxicity values and how it calculated the chronic arsenic criterion using the chronic level of effects for arsenic and bull trout. FWS explained in the Oregon BiOp that it began with EPA's methodology used in the BE and made adjustments by selecting more protective values in its analysis than EPA. (FWS 481.) In Appendix 1, FWS stated that it supplemented EPA's core data with additional literature that fit its data compilation rules. (FWS 480.) The data compilation rules excluded studies where the test species was “exposed to a chemical mixture.” (FWS 480.) FWS also explained that it used a recently updated Web-ICE 3.1 model that had a suite of “aquatic models using strict standardization criteria for test methods and conditions.” (FWS 490.) Additionally, FWS explained that it reevaluated the aquatic endangered species based on the updated Web-ICE model using a lower 95 percent confidence interval to be more protective of the species. (FWS 493.) FWS explained how it conducted a study validating its ICE models for copper, and found that the ICE models (BE and Web-ICE) provided a lower, more conservative estimate of the LC50 for the endangered species than the actual measured values. (FWS 490.)
The fact that FWS's modeling resulted in “uncertainties” does not mean that FWS's reliance on modeled data did not represent the best available science. See Jewell, 747 F.3d at 620 (“The fact that the FWS chose one flawed model over another flawed model is the kind of judgment to which we must defer.”). “The existence of a flaw . . . does not require [the court] to hold that the agency's use of the model was arbitrary.” Am. Iron & Steel Inst. v. EPA, 115 F.3d 979, 1005 (D.C. Cir. 1997) (per curiam). Here, NWEA contends that the Oregon BiOp admitted in several places that the data was uncertain and unreliable. The Oregon BiOp explains that it was based on EPA's initial data, which it then refined for the benefit of the species and used more protective standards.
Third, NWEA has not demonstrated that the models used in the Oregon BiOp produced unreliable data. The court “review[s] all agency choices with respect to models, methodologies, and weighing scientific evidence” to ensure that the agency's “choices [are] supported by reasoned analysis.” Ecology Ctr. v. Castaneda, 574 F.3d at 665. Particularly in an area as “unwieldy and science-driven” as this, the FWS's statistical modeling “does not easily lend itself to judicial review.” Appalachian Power Co. v. EPA, 135 F.3d 791, 802 (D.C. Cir. 1998) (“Statistical analysis is perhaps the prime example of those areas of technical wilderness into which judicial expeditions are best limited to ascertaining the lay of the land.”).
NWEA identifies no evidence showing that the Web-ICE values were not statistically valid. FWS's determination to use Web-ICE modeling premised on bluegill is itself a scientific determination, for which the court must be at its most deferential. Jewell, 747 F.3d at 618. Because NWEA has not identified superior data, the only question for the court is whether the determination to use bluegill data as an input for the modeling is reasonable. The court cannot conclude that this determination is arbitrary and capricious. Jewell, 747 F.3d at 618-19.
The data rules for the chronic level of effects permits FWS to use surrogate data from other species when genus, family, or species data are unavailable, or where life history similarities show a good fit. (FWS 504-06.) Indeed, the data rules permitted FWS to “use tests from surrogate species within the same family, or consider life history similarities as possible surrogate selection tool (Banks et al. 2010).” (FWS 505-06.) FWS contends that its evaluation showed that bluegill data showed that the exposure-response curves for bluegill and bull trout were reasonably similar. (FWS 505.) FWS argues that the available evidence in the BE showed that bluegill and rainbow trout demonstrate similar sensitivities to acute and chronic arsenic, making bluegill a reasonable selection for a surrogate species in the ICE models. (FWS 520, 59229.) FWS has identified how the bluegill data showed increased sensitivity by comparing whole tissue concentrations with that of rainbow trout. Thus, FWS's inclusion of bluegill data would be more protective for bull trout. (FWS 59219-29.) Based on the court's review of the record, NWEAS has not demonstrated that FWS acted arbitrarily, or failed to use the best available science by using bluegill as a component in its modeling. Jewell, 747 F.3d at 618, 621 (where an agency has supplied a reasoned analysis of why it chose a particular model, the court must defer to the agency's choice).
2. The 2012 Oregon BiOp Is Not Arbitrary and Capricious
NWEA argues that the 2012 Oregon BiOp is arbitrary and capricious in three other ways: (1) FWS erroneously relied on an exposure-based approach when considering effects, instead of considering that the WQS would be applied state-wide; (2) FWS erroneously concluded that bull trout would “move through” concentrations of arsenic and zinc in the high-flow mainstem Columbia and Snake Rivers; and (3) FWS failed to adequately consider bull trout recovery in its jeopardy analysis.
Because NWEA alleges that FWS violated the ESA, the court examines whether FWS's actions are arbitrary and capricious. NWEA v. U.S. EPA, 855 F.Supp.2d 1199, 1204 (D. Or. 2012). The court examines whether FWS considered the relevant factors and “articulate[d] a satisfactory explanation for its action, including a rational connection between the facts found and the agency's conclusions.” NWEA v. U.S. EPA, 855 F.Supp.2d at 1204. “A decision is arbitrary and capricious only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Conservation Cong. v. U.S. Forest Serv., 720 F.3d at 1054; Jewell, 747 F.3d at 601 (“Where the agency has relied on relevant evidence such that a reasonable mind might accept as adequate to support a conclusion, its decision is supported by substantial evidence. Even if the evidence is susceptible of more than one rational interpretation, the court must uphold the agency's findings.”).
a. exposure-based approach to effects
NWEA argues that FWS arbitrarily limited the scope of the analysis in the Oregon BiOp by assuming that bull trout will only be exposed to toxic pollutants from known, permitted sources. NWEA insists that because the proposed WQS will be applied state-wide, FWS was required to assess them for protectiveness “without deference to species' ranges” or the potential sources of pollutants under review, relying on the analysis done in the 2015 Idaho BiOp. (Pl.'s Combined Resp. and Reply at 8 (citing NWEA 539).) According to NWEA, in the Oregon BiOp, FWS examined only mining operations and known National Pollutant Discharge Elimination System (NPDES) permits within two miles of known bull trout habitat, and in doing so, arbitrarily limited the scope of the action. NWEA argues that the 2015 Idaho BiOp applied the only rational methodology for assessing the protectiveness of the proposed WQS, and that Oregon's failure to use the same approach is arbitrary and capricious.
FWS counters that the ESA does not require it to assume all listed species will be exposed to all pollutants at WQS criteria levels across all waterbodies in the state. FWS contends that it applied the proper causation analysis under 50 C.F.R. § 402.02 (2012). Under that regulatory scheme, the “effects of the action” must be reasonably certain to occur. FWS maintains it used the best available science to locate all point and nonpoint data source discharges and overlaid the potential for exposure with known bull trout habitat, following EPA's analysis in the BE. FWS further contends that the 2015 Idaho BiOp is premised on EPA's 2000 methodology, whereas the Oregon BiOp followed EPA's lead in using the ESA Consultation Handbook to guide its analysis. FWS contends its choice of methodology is rational and entitled to deference. FWS is correct.
As discussed above, the court cannot consider the post-decisional 2015 Idaho BiOp when evaluating whether the Oregon BiOp is arbitrary and capricious. NWEA v.U.S. FWS, 2019 WL 6977406, at *11 (holding NWEA cannot use the “Idaho BiOp to questions the wisdom of the previously issued Oregon BiOp”); Sw. Ctr. for Biological Diversity, 100 F.3d 1443, 1450 (9th Cir. 1996) (stating post-decisional information “may not be advanced as a new rationalization either for sustaining or attacking an agency's decision”).
NWEA's remaining argument is that FWS arbitrarily limited the scope of the analysis. In NWEA's view, because the WQS will be applied state-wide, FWS arbitrarily limited the “action area” by considering the bull trout's likelihood of exposure. NWEA's arguments miss the mark.
NWEA relies on cases discussing “agency action.” “Evaluating the scope of an agency action can be significant in determining the adequacy of a biological opinion.” Wild Fish Conservancy v. Salazar, 628 F.3d 513, 521 (9th Cir. 2010); Conner v. Burford, 848 F.2d 1441, 1453 (9th Cir. 1988) (“[T]he scope of the agency action is crucial because the ESA requires the biological opinion to analyze the effect of the entire agency action.”). Courts interpret the term “agency action” broadly. Wild Fish Conservancy v. Salazar, 628 F.3d at 521 (holding biological opinion violated ESA where agency arbitrarily limited the scope of study to five years). Courts do so to ensure that agencies do not unreasonably define an action area to mask larger effects. Id.That is not the case here. FWS does not debate that the scope of the agency action is the entire state of Oregon and that the BiOp is expected to be valid for a term of 25 years, unless reinitiation criteria are triggered. (FWS 26, 30.) Thus, court concludes that FWS has not arbitrarily limited the scope of agency action.
NWEA next argues that FWS's exposure-based approach limited the amount of bull trout habitat considered from 3, 436 miles of bull trout stream to 820.6 miles. (FWS 148-49, 233-34.) According to NWEA, FWS assumed without adequate support that “more than 75% of bull trout habitat within the action area has no real potential for exposure.” (FWS 234.) NWEA argues that the proposed water quality criteria apply to all “waters of the state” and that the protectiveness of those criteria are not “dependent upon the current bull trout range.” NWEA fails to show that FWS acted arbitrarily here.
As FWS correctly contends, it applied an effects analysis, working from regulations and the ESA Consultation Handbook. Thus, the question for the court is whether FWS, in conducting its effects analysis for approval of the proposed water quality criteria for Oregon on bull trout, it considered the relevant factors and rationally explained its choice of methodology and articulated it reasoning. See Nat'l Fam. Farm Coal. v. U.S. EPA, 966 F.3d 893, 923 (9th Cir. 2020) (stating agency decision is arbitrary and capricious “only if the agency relied on factors Congress did not intend it to consider, entirely failed to consider an important aspect of the problem, or offered an explanation that runs counter to the evidence before the agency or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise”) (simplified). FWS's effects analysis survives this deferential review.
The court must give wide latitude to FWS's determination of the scope of the analysis and its selection and application of scientific methodology. SeeJewell, 747 F.3d at 610 (“Our deference to agency determinations is at its greatest when that agency is choosing between various scientific models[.]”) FWS's decision to conduct an exposure-based analysis is rationally articulated in the Oregon BiOp and informed by the regulatory scheme and agency expertise. FWS explained that it considered the distribution of the species, the areas affected by the consultation chemicals, and the degree of exposure to each chemical for each species.” (FWS 135.) As FWS articulates, it considered the action area, then assessed the indirect effects of the action as provided in 50 C.F.R. § 402.02 and the factors described in the ESA Consultation handbook.
When the Oregon BiOp issued, § 402.02 provided in relevant part:
Effects of the action refers to the direct and indirect effects of an action on the species or critical habitat, together with the effects of other activities that are interrelated or interdependent with that action, that will be added to the environmental baseline. The environmental baseline includes the past and present impacts of all Federal, State, or private actions and other human activities in the
action area, the anticipated impacts of all proposed Federal projects in the action area that have already undergone formal or early section 7 consultation, and the impact of State or private actions which are contemporaneous with the consultation in process. Indirect effects are those that are caused by the proposed action and are later in time, but still are reasonably certain to occur. Interrelated actions are those that are part of a larger action and depend on the larger action for their justification. Interdependent actions are those that have no independent utility apart from the action under consideration.
50 C.F.R. § 402.02 (2012) (emphasis added). And the ESA Consultation Handbook similarly provided that, when conducting its consultation analysis for listed species and their critical habitats, agencies are to consider the following factors: the proximity of the action to the species, its management units, or critical habitat; distribution or geographic area; timing of the action to sensitive periods of a species' lifecycle; nature of the effect; duration of the effect; and the disturbance frequency. (FWS 33041-42.) Moreover, the ESA Consultation Handbook provided that indirect effects must be “reasonably certain to occur.” (FWS 33047.)
In the Oregon BiOp, FWS explained that the approval would have “indirect effects” because the State and EPA will apply the water quality criteria in “future regulatory decisions” implementing various CWA programs such as “‘Total Maximum Daily Load (TMDL) management plan implementation, issuance of NPDES permits, CWA 401 certifications of federally licensed projects, and implementation of non-point source management plans[.]” (FWS 28, 31936.) Thus, the “criteria define the legal limits for ambient water quality required for protecting designated uses.” (FWS 28.)
FWS explained that in its exposure analysis generally, it worked from EPA's BE, which presented information on the location of existing point and nonpoint source discharges of the proposed toxics. (FWS 31891-935.) FWS described its methodology for evaluating potential exposure from contaminant sources in Appendix 1. (FWS 475-79.) There, FWS stated that it reviewed “(1) ODEQ databases on discharge permits and water-quality limited streams, (2) the Oregon Department of Geology and Mineral Industries (DOGAMI) data on mine sites in Oregon (sites were mapped using GIS and reviewed for proximity to listed species habitats), (3) GIS data layers of adjacent land use activities, and (4) USFWS lead staff biologists for the affected listed species and various State agencies to gather additional information.” (FWS 475.)
For bull trout specifically, FWS overlaid the potential sources of contaminant onto streams inhabited by bull trout or waterbodies with hydrologic connections to bull trout habitat to determine their potential exposure. (FWS 147; see also EPA 5557 (BE Figure 4.3.6.A, showing co-occurrence of bull trout habitat and point and nonpoint discharges).) FWS explained that it considered the NPDES and 303(d) permits and mine sites as the primary point sources of potential exposure to toxins, and considered other sources such as roads, forestry, and agriculture. (FWS 149.) FWS observed that “forestry accounts for nine percent of the water quality problems in forested areas due to sediment, as opposed to toxins.” (Id.) And, FWS noted that 80 percent of “bull trout spawning and rearing habitat is located on Federal land managed by the U.S. Forest Service operating under Best Management Practices, ” and thus concluded that forestry was unlikely to pose a “major source of exposure.” (FWS 147.) FWS further observed that “[a]gricultural practices occur in areas within bull trout habitat” and that “[a]lmost all agriculture adjacent to bull trout habitat occurs within foraging, migratory, and overwintering habitat.” (FWS 147.) FWS determined that bull trout habitat is “highly variable” based on season and stream temperature, and that “agricultural sources were not considered to be a major source of exposure.” (FWS 147.)
Based on this information, FWS concluded that the probability of exposure of bull trout to toxins by all known potential sources of exposure within two miles of bull trout habitat were included within the analysis. (FWS 148; see also FWS 136 (noting “[two] miles was used as the best estimate of the exposure distance at which most toxins would be sufficiently diluted to reduce potential adverse effects”).) FWS also noted that mathematical modeling to predict downstream effects of exposure varied widely based on input parameters, including “river discharge, depth, effluent concentrations, wind speed and direction, ” and whether smaller streams are protected by a “forest buffer.” (FWS 148 (citing Sweeney et al. 2004 p. 14132, and Bathory et al. 2005 p. 19).) FWS also discussed and distinguished Kiser et al. 2010, which found exposure at four miles due to their mobility. (FWS 148.) FWS then determined the total potential exposed sections of bull trout stream and habitat totaled 820.6 miles. (See FWS 149-50 (classifying bull trout exposure by habitat type and potential exposure in Tables 4-1 & 4-2).)
Against this reasoned analysis, NWEA argues that FWS expressly limited its exposure analysis to known bull trout habitat waters based solely on NPDES permits and mining sites. NWEA's contention is undermined by the express language in the Oregon BiOp discussing the various point and nonpoint sources of contaminants FWS considered: NPDES (federal water pollution control, FWS 476), WPCF (state wastewater discharges, FWS 476), mining sites and ODEQ permits (FWS 478), forestry, runoff, and agriculture (FWS 147). And, the Oregon BiOp states that species experts consulted with government biologists about land-use activities within their respective species' habitats. (FWS 479.) NWEA seems to suggest that FWS's discussion of nonpoint sources, such as forestry practices and agriculture, is inadequate. Again, NWEA does not address how the FWS erred in concluding that 80 percent of bull trout spawning and rearing habitat is within national forest land and is managed by the U.S. Forest Service under best practices, and does not challenge FWS's statement that forestry is unlikely to be a source of exposure. (FWS 147.) The Oregon BiOp also discussed that agriculture runoff occurs adjacent to foraging, migratory, and overwintering habitat, and poses the greatest risk when stream temperature are highest and bull trout are not present. (FWS 147.) NWEA fails to articulate how FWS's conclusions are unsupported. Although NWEA appears to suggest that FWS should have used four miles instead of two miles as the appropriate mixing zone, it is clear from the Oregon BiOp that FWS considered the Kiser et al. 2010 study discussing a four-mile buffer and discounted it. NWEA provides no reasoned discussion in its briefing in support of its contention that FWS acted arbitrarily by using two miles instead of four miles as stated in the Kiser study. Because NWEA's argument is undeveloped, the court does not discuss it further. FWS provided a reasoned explanation for its exposure-based analysis of indirect effects. Its explanation is not arbitrary or capricious. Ctr. for Biological Diversity v. Zinke, 900 F.3d 1053, 1073 (9th Cir. 2018) (stating reasoned explanation for agency's decision was not arbitrary or capricious).
NWEA insists that the “purpose of the consultation was to determine the protectiveness” of the proposed WQS, “which is not dependent on the current range of the bull trout, ” suggesting that FWS's entire exposure-based analysis is legally flawed because it ignores the function of the state water quality standards and their state-wide application. (Pl.'s Mot. at 20.) NWEA's argument is flawed for three reasons. First, NWEA does not claim that FWS erroneously identified bull trout habitat or that bull trout's range includes all the “waters of the state.” Second, as the Oregon BiOp noted, “there are vast remote areas void of concentrated human population centers and anthropogenic sources of the chemicals considered in this consultation.” (FWS 135; see also FWS 29 (“extremely remote areas such as isolated springs and seeps in the desert, or high elevation waters within designated wilderness areas . . . are extremely unlikely to be impacted by discharges subject to the proposed water quality standards”).) NWEA fails to explain how FWS's conclusion on this point is unreasonable; NWEA does not identify any additional sources of pollutants reasonably certain to discharge into Oregon waters that FWS failed to consider.
And third, NWEA's appears to conflate the CWA enforcement with the ESA Section 7 consultation. Setting the water quality criteria will serve as the basis for administering future pollution controls, such as listing waters on the 303(d) list, setting ambient water quality targets of restoring impaired waters through the TMDL process, and issuing NPDES permits and accomplishing nonpoint source controls. (FWS 27-28.) In this consultation, FWS did not consider implementation of the criteria or attainment of the proposed criteria state-wide for bull trout. (FWS 28 (“Implementation of the criteria is not part of our analysis[.]”).) Future enforcement actions for violations of those standards will arise under the CWA. See Oregon Wild v. U.S. Forest Serv., 193 F.Supp.3d 1156, 1170 (D. Or. 2016) (discussing enforcement of water quality standards as a cause of action under the CWA). Rather, the central tenant of that ESA Section 7 consultation was to determine whether the effects of EPA's approval of the proposed WQS would jeopardize or adversely modify critical habitat for listed species. 16 U.S.C. § 1536(a)(2); (see also FWS 30-31 (discussing that the Oregon BiOp would examine the status of each listed species, consider their environmental baseline, the effects of the proposed federal action, and any cumulative effects).)
Lastly, NWEA appears to suggest that FWS conducted an inadequate analysis of cumulative effects because it only considered known NPDES-facilities and metal mines. NWEA's argument lacks clarity. Cumulative effects are “those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area of the Federal action subject to consultation.” 50 C.F.R. § 402.02. Contrary to NWEA's contention that FWS failed to consider nonpoint sources here, FWS discussed a range of cumulative effects in the Oregon BiOp, including “water management, timber harvest, grazing, mining, agriculture, urban development, municipal and industrial wastewater discharges, road building, sand and gravel operations, introduction of nonnative fishes, off-road vehicle use, fishing, hiking, and camping.” (FWS 356.) FWS discussed concentrated urban growth and its effect on contaminant loading and urban runoff and increased mining activities. (FWS 356.) FWS discussed anticipated increased agricultural production and its effect on water diversions that may “reduce water flow rates and alter habitat” generally when discussing cumulative effects. (See FWS 356 (citing Figueroa and Woods 2007, FWS 8796).) NWEA also does not explain why FWS's cumulative effects discussion is inadequate and fails to identify any specific future State or private activity reasonably certain to occur that FWS failed to consider. To the extent that NWEA contends FWS failed to adequately consider nonpoint sources such as agriculture and forestry practices on bull trout, as discussed above, the court finds FWS reasonably considered them as indirect effects.
While NWEA would have preferred that FWS used the methodology employed in the 2015 Idaho BiOp, the court cannot say that that FWS's indirect effects analysis failed to consider an important aspect of the problem or failed to supply a satisfactory explanation for its conclusions. In short, the court finds FWS's exposure-based analysis was neither arbitrary nor capricious. Nat'l Fam. Farm Coal., 966 F.3d at 927-28; Ctr. for Biological Diversity v. Zinke, 900 F.3d at 1074 (holding that where FWS provided a reasoned explanation for its determination, it was not arbitrary or capricious and that “a difference of opinion does not warrant a contrary conclusion”).
b. FWS's finding that bull trout would “move through” concentrations in mainstem Columbia & Snake Rivers
In the Oregon BiOp, FWS estimated that exposure to the proposed chronic criterion for arsenic would translate to a likely mortality of 5.1 percent of individual juvenile bull trout. (FWS 204-05.) FWS then calculated the number of “take” based on the estimated adult bull trout population and percent of exposed habitat in each tributary. (FWS 205.) Based on these calculations, FWS estimated that the total take of bull trout was 79 fish every three years due to exposure to arsenic at the proposed chronic criterion. (FWS 205.) FWS found that bull trout utilize the Columbia and Snake Rivers for “foraging, migratory, and overwintering habitats” and may be exposed to the proposed chronic arsenic criterion and that such exposure is “likely to cause adverse effects to the exposed individuals.” (FWS 205.) FWS reasoned that, due to
the high flows within [the Columbia and Snake] rivers, and the ability of bull trout to move through or avoid the highest concentrations of arsenic they encounter within large streams, the adverse effects to the bull trout associated with their exposure to chronic concentrations of arsenic in Columbia River and Snake River mainstem habitats are not likely to cause additional death or injury of affected bull trout that reside in the tributaries listed in Table 4-7.
(FWS 205.) Based on this reasoning, FWS did not separately include take from the Snake and Columbia Rivers because the same bull trout also utilize numerous tributary rivers and were adequately included with the take for the tributary populations. (FWS 205.) FWS provided a nearly identical rationale to conclude that chronic selenium and chronic zinc exposure in the Columbia and Snake Rivers at the proposed criteria would not result in take of bull trout in addition to the take identified for tributary populations. (FWS 231 (chronic zinc); FWS 351 (chronic selenium).)
According to NWEA, FWS's assumptions about bull trout avoidance behavior is not supported by an adequate scientific or factual basis and therefore its conclusions about bull trout to toxics in the Columbia and Snake River are arbitrary and capricious. NWEA argues that FWS's explanation about stream flow and bull trout avoidance behavior is based on scant record evidence and must be remanded. (Pl.'s Mot. Summ. J. at 21.)
FWS counters that there are no separate mainstem Columbia or Snake River bull trout populations. The narrow issue in FWS's view is whether the migratory bull trout face such an increased risk of injury or mortality from exposure during foraging, migrating, or overwintering activities that it was required to increase the overall number of take to account for that effect. (Defs.' Reply at 21.) FWS contends that it rationally concluded that the risk of additional take to the migratory bull trout is discountable and thus insignificant because of the limited exposure of to the small numbers of migratory bull trout temporarily found in the mainstem habitats. (Id.) NWEA fails to show that FWS's analysis is arbitrary and capricious.
a. analysis
The relevant question for the court here is whether FWS rationally concluded that the migratory bull trout that are exposed to the proposed chronic arsenic, selenium, and zinc criteria in the mainstem Columbia and Snake Rivers would face such an increased mortality risk that their take numbers are not adequately captured by the take numbers calculated for bull trout tributary populations. FWS rationally concluded that the Columbia and Snake Rivers are “high flow” rivers which logically provides for “increased dilution of any toxic discharges and increase passage areas that will allow bull trout to avoid the highest concentrations of any toxic substances.” (FWS 245.) NWEA does not dispute that bull trout use the Columbia and Snake Rivers habitats solely for foraging, migrating, and overwintering (FMO) and it is undisputed that the Columbia and Snake Rivers have their own resident bull trout populations.
Instead, NWEA contends that the record fails to adequately support FWS's determination that bull trout “avoid” or “move through” chronic concentrations of arsenic, selenium, and zinc, and consequently, FWS's exclusion of the Columbia and Snake River migratory bull trout population from the take numbers is arbitrary and capricious. Not so. As NWEA acknowledges, the record contains studies discussing avoidance behavior of fish when exposed to metals and combinations of metals. (FWS 10498 (discussing avoidance behavior of chinook salmon and rainbow trout when exposed to copper and cobalt), 28116-19 (discussing avoidance behavior of rainbow trout, chinook salmon, coho salmon, ninespine stickleback, and fathead minnow to metals and metal mixes), 31898-99 (discussing avoidance behavior to zinc and selenium).) And NWEA acknowledges that the record shows avoidance behavior by golden shiner (N. crysoleucas) when exposed to arsenic. (FWS 28117 (Tierney et al. 2010).) NWEA does not contend that FWS improperly interpreted the available avoidance studies. And, to the extent that NWEA contends that FWS failed to use the best available science concerning avoidance behavior, it fails to show that superior data was available. NWEA also does not challenge FWS's methodology for calculating the take numbers for the tributary systems. NWEA does not contest other record evidence that supports FWS's findings to exclude the numbers from the take calculation here. FWS explained that the “greatest potential for exposure [to metals] would be during low flows (less dilution) when it would be unlikely for bull trout to be present because low flows most often occur during late summer and early fall when water temperature is unsuitable for bull trout and most adults would be in spawning and rearing habitats further upstream in the various river basins.” (FWS 196.)
At bottom, NWEA contends that, because there is no specific data relating avoidance behavior in bull trout to arsenic, FWS's conclusions about migratory bull trout exposure to toxics in the Columbia and Snake Rivers are arbitrary. Although more specific data is always preferable, the level of certitude NWEA attempts to impose is greater than that required. Jewel, 747 F.3d at 602 (“where the information is not readily available, we cannot insist on perfection”). The court must give substantial deference to FWS's interpretation of the avoidance behavior data. Id. at 625 (holding incidental take statement was “not arbitrary and capricious because it includes adequate explanation and support for its determinations”).
FWS rationally explained its decision to exclude from the take numbers any adverse effect from chronic exposure of migratory bull trout due to FMO activity in the Columbia and Snake Rivers. NWEA does not identify an important aspect of the problem that FWS failed to consider and FWS rationally explained that the number of migratory bull trout in Columbia and Snake Rivers are small, and that due to dilution in the high flow rivers and bull trout's ability to avoid concentrations of arsenic, selenium and zinc, any increased mortality would be slight and already accounted for in the tributary mortality take numbers. Because FWS has adequately explained and supported its take calculation for bull trout exposure to chronic arsenic, selenium, and zinc, FWS's “no jeopardy” decision for these toxics is not arbitrary or capricious. See Ecology Ctr. v. Castaneda, 574 F.3d at 665 (stating the court reviews “all agency choices with respect to models, methodologies, and weighing scientific evidence” to ensure that the agency's “choices are supported by reasoned analysis”) (simplified).
c. bull trout recovery was adequately considered
1. waiver
NWEA argues that the Oregon BiOp's jeopardy analysis is flawed because it fails to adequately analyze the effects of EPA's approval of the toxics criteria on bull trout recovery. FWS argues that NWEA has waived this issue because it was not asserted in the Complaint. NWEA argues that bull trout recovery is adequately pleaded as a “line of argument” under its APA “arbitrary and capricious” claim in the Complaint, and that FWS will not suffer prejudice if the court considers the claim. FWS responds that NWEA may not use “an APA arbitrary and capricious claim” as an “empty vessel” to fill with theories of liability at the summary judgment stage. (Defs.' Br. at 22.)
District Judge Marco A. Hernandez addressed a similar argument in Nw. Envt'l Def. Ctr., 479 F.Supp.3d at 1021. The Army Corps argued that the plaintiffs waived their takings claim asserted under Section 9 of the ESA on summary judgment because it was not asserted in the complaint and that the plaintiffs' takings theory alleged in their complaint was different from the takings theory they asserted on summary judgment. Id. Judge Hernandez considered whether the complaint pleaded facts that put the defendants on notice about the claim. Id.; Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (“[O]ur precedents make clear that where, as here, the complaint does not include the necessary factual allegations to state a claim, raising such claim in a summary judgment motion is insufficient to present the claim to the district court.”). “For a claim to be properly pleaded in a complaint, ‘[t]he necessary factual averments are required with respect to each material element of the underlying legal theory[.]'” Nw. Env't Def. Ctr., 479 F.Supp.3d at 1020 (quoting Wasco Prod., Inc. v. Southwall Techs., Inc., 435 F.3d 989, 992 (9th Cir. 2006)). After examining the allegations in the complaint, Judge Hernandez concluded that the plaintiffs sufficiently alleged elements of its “takings” claim to put the Army Corps on notice and addressed the merits of the claim on summary judgment. Id.
Here, the parties' arguments on waiver are not well-developed. Examining the allegations in the Complaint, NWEA mentions the word “recovery” once in paragraph 27, as part of a background section discussing ESA's Section 7 implementing regulations defining “jeopardy” and the agency's duty to use the best available science to prevent jeopardy. (Compl. ¶ 27.) In its first claim for relief, NWEA alleges the Oregon BiOp is arbitrary and capricious in four different ways, including that
(D) FWS failed to articulate a rational connection between its findings in the Oregon BiOp and its conclusion that approval of Oregon's revised water quality standards for arsenic, selenium, and zinc would not jeopardize the continued existence of bull trout.
(Compl. ¶ 72.) Although NWEA's specific allegations on bull trout recovery could have been more robust, FWS's argument that it lacked notice is lackluster at best. FWS does not specify what additional allegations NWEA was required to assert to put it on notice of NWEA's recovery argument. Further, FWS does not contend that it will be prejudiced by the court's consideration of the issue, and FWS addressed the merits of the recovery issue in its response and reply. Therefore, the court finds the issue was sufficiently asserted in NWEA's Complaint and that FWS will not be prejudiced by the court's consideration of it.
2. merits
Under the ESA, agencies must ensure that their actions are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat[.]” 16 U.S.C. § 1536(a)(2). A jeopardy evaluation must evaluate whether a proposed action “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. Agencies must consider both recovery and survival. See Nat'l Wildlife Fed'n v. Nat'l Marine Fisheries Serv., 524 F.3d 917, 931 (9th Cir. 2008) (“[T]he jeopardy regulation requires [a consulting agency] to consider both recovery as well as survival impacts.”). The Oregon BiOp determined that the proposed action will not appreciably reduce the likelihood of bull trout recovery. (FWS 364.)
NWEA argues that the Oregon BiOp's no jeopardy conclusion is arbitrary and capricious because it failed to meaningfully analyze recovery as distinct from survival. (Pl.'s Mot. at 23.) NWEA contends that FWS wrongly assumed that a low risk of exposure to toxics in the proposed action meant that the critical habitat units (CHUs) will “continue to function and provide adequate contributions toward both survival and recovery of the species.” (Id.) For example, NWEA argues that the BiOp fails to adequately support its conclusion that “11 CHUs will continue to function in their intended conservation and recovery roles.” (Pl. Mot. at 23.) NWEA argues that, absent any “genuine analysis” of the effects of the toxics criteria on recovery, the BiOp is flawed.
FWS remonstrates that it has adequately considered recovery, noting that its jeopardy analysis framework “relies upon an assessment of how the effects of the proposed action, together with cumulative effects, are likely to affect the survival and recovery role of the Columbia River and Klamath River IRUs.” (FWS 357.) Based on this hierarchical approach, FWS posits that it considered the effects of the proposed action at the local population level, core area level, then at the range-wide level. (FWS 358.) FWS contends that it reasonably considered whether EPA's approval was compatible with conserving core area persistence, which protects bull trout “from a distribution, genetic, and demographic perspective.” (FWS 358.) FWS maintains that it rationally considered that EPA's approval of the proposed criteria was not likely to change the current distribution and abundance of bull trout, and that EPA's approval would not likely cause any lasting change in any core area due to bull trout distribution and the intermittent nature of the adverse effects. (Defs.' Reply at 23.)
NWEA has not demonstrated that FWS failed to consider recovery of bull trout in the Oregon BiOp. Recovery of bull trout in the coterminous lower 48 States is organized into five bull trout population segments known as individual recovery units (IRUs). Determination Of Threatened Status For Bull Trout, 64 Fed.Reg. 58930 (codified at 50 C.F.R. § 17.44(x)). See also Wild Fish Conservancy v. Salazar, 628 F.3d at 519. The Oregon BiOp implicates two of the IRUs, the Columbia River and Klamath River IRU. Wild Fish Conservancy v. Salazar, 628 F.3d at 519. Each IRU contains several local populations, grouped into geographic “core areas.” Id.The Oregon BiOp followed the ESA Consultation Handbook, which requires FWS to consider how “the action affects not only the recovery unit's capability, but the relationship of the recovery unit to both the survival and recovery of the listed species as a whole.” (FWS 32.)
In the Oregon BiOp, FWS concluded that in the Columbia River IRU, 16 core areas within 11 river basins will be adversely affected by the proposed action. (FWS 363.) FWS found that two core areas (Powder River and Upper Willamette River) in the Columbia River IRUs could have “40% of their current habitat” with potential exposure, which place them at higher risk due to the proposed action, and that 800 miles of habitat for all core areas within the Columbia River IRU could be exposed by the proposed action. Nonetheless, FWS reasoned that the Powder River and Upper Willamette core areas represent less than one percent of total available bull trout habitat, and that all core areas affected by the proposed action represent just five percent of the total available habitat within the Columbia River IRU, such that the overall bull trout numbers would persist because no extirpation of bull trout from any core area was likely to occur. (Id.) FWS reasoned that, due to the low percentage of habitat exposed relative to the bull trout occupied habitat and the low risk of extirpation from any single core area, the proposed action was not likely to appreciably impair the Columbia River IRU's survival and recovery functions. (FWS 364.) FWS provided a similar rationale for the two bull trout core areas within the Klamath River IRU: the two core areas affected make up less than six percent of the overall bull trout habitat. Thus, relative to the overall available habitat within the basin “supporting sufficient numbers of adult bull trout, ” the proposed action was not likely to appreciably impair or preclude the Klamath River IRU from providing its survival and recovery function. (Id.)
NWEA does not discuss the role that the IRUs play in bull trout recovery and seemingly ignores that FWS is required to consider bull trout recovery in a hierarchical manner to ensure recovery of the species as whole. Instead, NWEA contends that the Oregon BiOp inconsistently found that the proposed action will continue to support recovery functions despite acknowledging nearly 2, 000 bull trout deaths every three years. (Pl.'s Combined Reply & Resp. at 12.) FWS's finding that stable and declining bull trout populations, continued loss of habitat, and that the overall adverse effects of the proposed criteria resulting in bull trout deaths in 11 river basins every three years cannot be squared, in NWEA's view, with FWS's conclusion that approval would not appreciably impair bull trout recovery. NWEA also alleges, without support, that bull trout “will likely be extirpated from most Oregon waters within a decade.” (Id.) NWEA argues the Oregon BiOp is therefore inconsistent, irrational, and arbitrary. NWEA's arguments miss the mark.
Although the loss of any single threatened bull trout is unfortunate, the court cannot conclude that the Oregon BiOp's arbitrarily considered recovery. The Oregon BiOp did not find that any specific local population of bull trout would be extirpated, and FWS adequately explained how, due to the low percentage of exposed habitat in any particular core area, the proposed action was not likely to result in a lasting change to the distribution of and abundance of bull trout. FWS is charged with ensuring recovery of the bull trout species as whole, not each specific local population. NWEA cites no authority for its contention that most bull trout will be extirpated from Oregon waters within the decade, and the court declines to undertake such a search. And, the court observes that NWEA does not challenge the no adverse modification conclusion premised on similar rationale. Therefore, the court concludes FWS has offered a consistent, rational explanation between the facts it identified and its conclusion that approval of the criteria would not appreciably impair recovery of the bull trout. Concerned Friends of the Winema v. U.S. Forest Serv., Case No. 1:14-cv-00737-CL, 2016 WL 10637010, at *13 (D. Or. Sept. 12, 2016), adopted 2017 WL 5957811 (D. Or. Jan. 18, 2017).
Based on that analysis, the court cannot conclude that FWS's determination that the proposed action would not cause jeopardy was arbitrary and capricious. FWS's rested its conclusion on permissible considerations about the effects of the proposed action at scale. FWS has articulated a rational connection between the facts found and its decision that the proposed action would not appreciably impair bull trout recovery. SeeRock Creek All., v. U.S. Forest Serv., 703 F.Supp.2d 1152, 1193-94 (D. Mont. 2010) (discussing that agency adequately consider effects of proposed action on bull trout recovery as opposed to survival).
In summary, the court finds that NWEA's motion for summary judgment on claim one against FWS should be denied, and FWS's motion for summary judgment on claim one should be granted.
C. Claims Two through Four Against EPA
NWEA brings three citizen-suit claims under the ESA against EPA, contending that: (1) because the Oregon BiOp was arbitrary and capricious, EPA violated ESA Section 7 by relying on the legally flawed biological opinion; (2) EPA was required to reinitiate formal consultation after the 2015 Idaho BiOp issued to reconcile the “jeopardy determination” for bull trout with the Oregon BiOp's “no jeopardy determination”; and (3) EPA's approval of revised selenium criteria in 2014 violated its duty to reinitiate formal consultation. Citizen-suit claims brought under the ESA are analyzed under the APA's arbitrary and capricious standard of review. 5 U.S.C. § 706(2)(A); Ctr. for Biological Diversity v. Bernhardt, 982 F.3d 723, 733 (9th Cir. 2020).
1. EPA Did Not Violate ESA Section 7
In Claim Two, NWEA argues that that EPA violated its independent duty to protect against jeopardy. As a matter of law, if the court found that any portion of the Oregon BiOp is arbitrary and capricious, EPA would violate Section 7 by relying on that legally flawed biological opinion. SeeCtr. for Biological Diversity v. U.S. BLM, 698 F.3d at 1127-28 (“[A]n agency cannot meet its section 7 obligations by relying on a Biological Opinion that is legally flawed or by failing to discuss information that would undercut the opinion's conclusions.”). Because the Oregon BiOp was neither legally nor factually flawed, EPA permissibly relied on it in approving Oregon's revised toxics criteria. Defenders of Wildlife v. Zinke, 856 F.3d 1248, 1265 (9th Cir. 2017). Accordingly, NWEA's motion for summary judgment on claim two should be denied and EPA's motion should be granted.
2. Claim Three - EPA Was Not Required to Reinitiate Formal Consultation when the 2015 Idaho BiOp Issued
On June 25, 2015, FWS issued a biological opinion for revisions to the State of Idaho's water quality criteria for toxic pollutants (2015 Idaho BiOp) in which FWS concluded that the proposed criteria for chronic arsenic and acute and chronic zinc at the identical concentrations previously approved for Oregon would cause jeopardy to bull trout and its critical habitat. (NWEA 674.) NWEA argues that this “new information” triggered EPA's duty to reinitiate consultation under 50 C.F.R. § 402.16(a)(2). That regulation provides:
(a) Reinitiation of consultation is required and shall be requested by the Federal agency or by the Service, where discretionary Federal involvement or control over the action has been retained or is authorized by law and:
(2) If 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 [.]
Defendants argue that EPA's approval of Oregon's water quality standards was a completed agency action over which EPA did not retain sufficient discretionary control under § 402.16(a) and thus it could not reinitiate consultation. 33 U.S.C. § 1313(c)(3). Defendants also contend that 2015 Idaho BiOp did not trigger reinitiation because NWEA points to no new information that FWS failed to consider when formulating the Oregon BiOp in 2012. Finally, EPA argues that, even if the 2015 Idaho BiOp triggered the duty to reinitiate consultation, it satisfied that obligation by securing analysis from FWS that the 2012 Oregon BiOp remains valid in light of the contrary jeopardy conclusion reached for arsenic and zinc in the 2015 Idaho BiOp. (Defs.' Cross Mot. Summ. J. at 33-34 (citing FWS 19896-897).)
a. EPA's discretionary control
EPA contends that, once it finally approved Oregon's WQS in January 2013, it lacked discretion to reinitiate consultation under 50 C.F.R. § 402.16(a). In the EPA's view, the CWA provides two ways to change WQS: (a) Oregon could adopt new or revised WQS subject to EPA approval; or (b) EPA could promulgate a revised or new federal WQS. (Defs.' Reply at 28-29 (citing 33 U.S.C. § 1313(c)(3) & (4)).) EPA argues that both routes are new agency actions that must be supported by a new record and new ESA Section 7 consultation.
NWEA responds that EPA's duty to reinitiate consultation under 50 C.F.R. § 402.16(a) depends on whether discretionary federal control has been retained or is authorized. (Pl.'s Combined Resp. & Reply at 14.) NWEA relies on Wild Fish Conservancy v. U.S. EPA, 331 F.Supp.3d 1210, 1223 (W.D. Wash. 2018), to argue that EPA has retained that control. NWEA is correct.
In Wild Fish Conservancy, the court rejected EPA's contention that it lacked sufficient discretionary involvement to trigger its duty to reinitiate consultation under 50 C.F.R. § 402.16(a). Id. at 1225. There, the court discussed a Memorandum of Agreement (MOA) among EPA, FWS, and FMFS, as well as a Policy Memo, that “clearly demonstrate EPA's ongoing ‘discretionary involvement' in state water quality standards under the CWA-including standards it has already approved-and EPA's explicit reservation of the right to influence those standards for the benefit of listed species.” Id.; (see also Defs.' Reply Ex. 2, ECF No. 62-1 (attaching MOA, 66 Fed.Reg. at 11, 202).) Thus, the Wild Fish Conservancy court concluded that, if “one or more of the triggering events listed in the ESA regulations occurs, EPA has the duty to reinitiate consultation.” Id. at 1226. The court finds the rationale in Wild Fish Conservancy persuasive.
The parties point to the same MOA here as that involved in Wild Fish Conservancy. Reviewing the MOA, the court also finds EPA's contention that it lacks discretionary control or involvement unsupportable. The MOA states that EPA has “considerable judgment” in approving WQS, that endangered and threatened species “are an important component of the aquatic environment that the CWA is designed to protect, ” and that re-opening existing water quality standards are well within the CWA. MOA, 66 Fed.Reg. 11206; see also 66 Fed.Reg. 11210-211 (noting the Services and EPA “will work cooperatively to evaluate any new information to determine if reinitiation is necessary); Nat. Res. Def. Council v. Jewell, 749 F.3d 776, 784 (9th Cir. 2014) (“Whether an agency must consult does not turn on the degree of discretion that the agency exercises regarding the action in question, but on whether the agency has any discretion to act in a manner beneficial to a protected species or its habitat.”). EPA has retained sufficient discretion in approving Oregon's WQS under the CWA that EPA has a duty to reinitiate consultation if 50 C.F.R. § 402.16(a)(2) is satisfied.
b. the 2015 Idaho BiOp is not “new information”
The formal “consultation process must be reinitiated if certain triggering circumstances occur, such as the emergence of new information that the agency action would have an adverse impact not previously considered, or that a new listed species or critical habitat may be affected by the identified action.” Ctr. For Biological Diversity v. U.S. Forest Serv., 522 F.Supp.3d 611, 613 (D. Ariz. 2021) (citing 50 C.F.R. § 402.16(a)(1)-(4)). An action agency must “reinitiate formal consultation with the consulting agency when ‘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' (the ‘new information' reinitation trigger).” Defenders of Wildlife v. Zinke, 856 F.3d at 1264 (quoting 50 C.F.R. § 402.16(a)(2)); Conservation Cong. v. Finley, 774 F.3d at 619. “[T]he mere existence of new information does not necessarily trigger reinitiation of consultation. The crux of the matter is whether the new information reveals effects that were not previously considered.” All. For Wild Rockies v. Probert, 412 F.Supp.3d 1188, 1204 (D. Mont. 2019).
NWEA argues that the 2015 Idaho BiOp contains new information, studies, and analysis of arsenic and zinc that were “not previously considered, ” triggering EPA's duty to reinitiate consultation under 50 C.F.R. § 402.16(a)(2). NWEA advances two arguments. First, NWEA argues that, in the 2015 Idaho BiOp, FWS included a robust assessment of the effects of the proposed criteria on bull trout from multiple routes of exposure, including dietary exposure and bioaccumulation effects on their prey species. (See NWEA 559-564, 619-20.) NWEA contends that this analysis is absent from the 2012 Oregon BiOP because FWS considered only waterborne exposure (FWS 179), and that such failure “paved the way” for the Oregon BiOp's no jeopardy decision for bull trout. (Pl.'s Mot. at 32.) NWEA argues the dietary routes of exposure to pollutants for bull trout and its prey were critical to the 2015 Idaho BiOp's jeopardy determination for chronic arsenic (NWEA 617-19, 676-77) and acute and chronic zinc (NWEA 619-20, 682).
Second, NWEA argues that the 2015 Idaho BiOp analyzed the effects the proposed chronic arsenic and acute and chronic zinc criteria would negatively affect bull trout's critical habitat to an extent not considered by the 2012 Oregon BiOp. (Pl.'s Mot. at 32.) NWEA maintains that the 2015 Idaho BiOp provided a qualitative assessment of the how exposure to the arsenic and zinc criteria could adversely affect bull trout habitat by discussing the impact on its prey base and water quality. In NWEA's view, FWS minimized the effect of that exposure in the Oregon BiOp by focusing on the quantity of exposed habitat, rather than examining the qualitative effect of the pollutants to critical habitat. (Pl.'s Mot. at 32.) That quantitative, flawed approach, NWEA asserts, permitted FWS to minimize the effect of the proposed criteria and reach a different jeopardy conclusion. NWEA argues that the 2015 Idaho BiO revealed effects of EPA's approval of Oregon's arsenic and zinc WQS on bull trout in manner and to an extent that were not previously considered and that EPA should reinitiate formal consultation with FWS to obtain a revised biological opinion.
EPA responds that the 2015 Idaho BiOp presents no new information that triggered its duty to reinitiate consultation and that, even if this duty was triggered, it satisfied this obligation by receiving FWS's analysis in a February 15, 2019, letter that confirmed the adequacy of the Oregon BiOp. The court agrees.
Reinitation is triggered “only when the original consultation neglected to previously consider the effects that the new study reveals the proposed action will create for listed species or their critical habitat.” All. forthe Wild Rockies v. U.S. Forest Serv., 504 F.Supp.3d 1162, 1187 (E.D. Wash. 2020). Not every new study or piece of information triggers reinitiation. As the Ninth Circuit highlighted in Conservation Cong. v.Finley, a new study only requires reinitiation where the original consultation failed to address the effects described in the new information. 774 F.3d at 619-20 n.3 (affirming denial of a reinitiation claim based on the publication of a recovery plan, containing “new” studies drawn from old information). Even if the court assumes that the 2015 Idaho BiOp presents “new information” and analysis about dietary routes of exposure to arsenic and zinc to bull trout and its prey base, the court is unconvinced that FWS failed to consider that information in a manner or to an extent not previously considered in the Oregon BiOP. As discussed at length above, dietary pathways, bioaccumulation, and multiple routes of exposure were discussed by FWS in the BiOp and by EPA in the BA. Contrary to NWEA's contention, FWS did consider the effects of the proposed arsenic and zinc criteria on bull trout habitat. NWEA's arguments about the quantitative analysis conducted in the Oregon BiOp versus the qualitative analysis conducted in Idaho BiOp are, at bottom, repackaged disputes about the agencies' differences in methodological choice. Thus, the court is not convinced that the 2015 Idaho BiOp presents new evidence of effects that EPA and FWS neglected to consider.
Cases cited by NWEA are not helpful here. For example, in Pacificans for a Scenic Coastv. Cal. Dep't of Transp. (Caltrans), 204 F.Supp.3d 1075 (N.D. Cal. 2016), the court considered a challenge to the proposed widening of Highway 1 along the California coast near habitat for the California red-legged frog and San Fransico garter snake, which are listed species. Id. at 1080. Caltrans provided FWS a biological assessment that included setting aside a 5.14-acre parcel of property owned by the City of Pacifica to offset negative effects of widening the highway. FWS issued a biological opinion allowing the project, relying in part on setting aside the city-owned parcel. Id. Pacificans sued when it was later discovered that the City already was legally obligated to preserve the parcel for reasons unrelated to Caltrans' project. Id. at 1080-81, 1087. As relevant here, Pacificans argued that Caltrans and FWS were required to reinitiate consultation when it learned “new information”-that the 5.14-acre parcel could not serve as a new mitigation measure-“because it indicated that widening Highway 1 may affect listed species and their habitat to an extent not previously considered.” Pacificans, 204 F.Supp.3d at 1092. Thus, the unavailability of the parcel to offset negative effects of the highway widening for the listed species triggered reinitiation because that effect had not been previously considered. Id. at 1092-93.
And, in Nat. Res. Def. Council v. Rodgers, the plaintiffs argued that a judge's decision precluding the use of certain water offsets was new information triggering reinitiation because it “may affect” listed species. 381 F.Supp.2d 1212, 1248 (E.D. Cal. 2005). There, however, the Rodgers court concluded that reinitation was not triggered because the parties had not identified, nor could the court find, a specific contractual provision providing NMFS “discretionary power” to demand additional measures to protect listed species. Id. at 1249.
Thus, neither Pacificans nor Rodgers involved a situation like that presented here, where an agency in a different state took a different approach at later time and reached a different jeopardy result. Because the court cannot conclude that the 2015 Idaho BiOp addresses effects in a manner and to an extent in Oregon not considered by the Oregon BiOp, reinitiation was not required. See Conservation Congress v. Finely, 774 F.3d at 619-20 (finding recovery plan discussing several studies did not trigger reinitiation because biological assessment considered effects); Friends of the River v. Nat'l Marine Fisheries Serv., 293 F.Supp.3d 1151, 1175-76 (E.D. Cal. 2018), rev'd in part and aff'd in relevant part 786 Fed.Appx. 666, 671 (9th Cir. 2019) (observing that “a new study only requires reinitiation of consultation where the original consultation failed to address the effects described in the new information”).
Further, if the district court concludes that reiniation was triggered, the court concludes that EPA satisfied its obligation to do so by consulting with FWS about the 2015 Idaho BiOp. Here, defendants rely on a February 15, 2019 letter from FWS to EPA in which FWS addressed two questions: (1) whether the Oregon BiOp with respect to bull trout and its habitat remains adequate in light of the 2015 Idaho BiOp; and (2) clarification on whether Oregon's 2014 freshwater acute and chronic selenium criteria requires ESA consultation. (EPA 19896-19901.)
NWEA argues that defendants should not be permitted to rely on the letter because it is a “post hoc” rationalization and that determining that reinitiation is unwarranted cannot occur in an informal process. Even if the letter is post-hoc, NWEA cites no authority for its contention that a reinitiation determination cannot occur informally and appears contradicted. See Conservation Congress v. Finley, 774 F.3d at 619-20 (discussing that Forest Service analyzed whether it needed to reinitiate consultation in response to notice of intent to sue and concluded it did not); Wyoming Outdoor Council v. Bosworth, 284 F.Supp.2d 81, 95 n.16 (D.D.C. 2003) (deciding that new grizzly bear information did not trigger reinitiation, noting that information communicated to plaintiff in letter).
Finally, NWEA contends that the 2019 letter noted that new studies in the Idaho BiOp “support the need for further investigation of a dietary or tissue-based criterion for arsenic” suggesting that this demonstrates the studies show new information with effects on bull trout to an extent not previously considered. (See EPA 19900; Pl.'s Reply at 15-16.) The court is not convinced.
In the 2019 letter, FWS provided a detailed response concerning why the analysis in the 2015 Idaho BiOp did not trigger reinitiation, including “differences in the range of the species in the two States, the analysis evaluating how bull trout were exposed to these metals or metalloids, the evaluation to determine effects of the chronic water quality criteria, and the dietary pathway evaluation for arsenic.” (EPA 19896-97.) FWS explained that there were new studies analyzed by the Idaho BiOp that were published after the Oregon BiOp. (EPA 19900.) FWS explained that the studies showed adverse effects of arsenic in fish are not from “dissolved arsenic in the water column but rather from dietary arsenic . . . which can be transferred to fish via ingestion of contaminated prey.” (Id.) FWS further explained that the “dissolved arsenic criterion may be less relevant than a sediment, dietary, or issue residue-based criterion.” (Id.; see also NWEA 560 (noting “simple relationships between water and tissue concentrations are elusive” and that data is inconsistent and may be attributable to seasonal variations, food web differences, or differing chemical forms of arsenic).) FWS concluded that the new information
would not change the effects analysis and jeopardy determination for the Oregon BiOp because the chronic data did not meet data input rules for the chronic level of effects model used in the Oregon BiOp and because the Service's evaluation found that there was no potential exposure for a large portion of the bull trout population in Oregon[.]
(EPA 19900.) NWEA does not explain, however, why FWS's reasoned explanation is not entitled to deference. And there is nothing in the record showing EPA disagrees with FWS's determination that the information did not trigger reinitiation. Accordingly, the court concludes that FWS's 2019 explanation provides a rational basis for its decision not to reinitiate consultation and is neither arbitrary nor capricious. See Wyoming Outdoor Council v. Bosworth, 284 F.Supp.2d at 95-96 (holding Forest Service “articulated a rational connection between the facts found and the choice made” in concluding information on grizzy bears did not warrant reinitiation).
In short, NWEA's motion for summary judgment on Claim Three should be denied and defendants' motion should be granted.
3. EPA was not required to consult on the April 2014 revised selenium criteria
In Claim Four, NWEA argues that EPA was required to consult before it approved Oregon's revised freshwater selenium criteria in 2014. In NWEA's view, EPA was required to consult on the 2014 revised selenium criteria because its approval “may affect” bull trout or other listed species or critical habitat, triggering consultation under 50 C.F.R. § 402.14 (requiring formal consultation where any agency action “may affect listed species or critical habitat). Defendants argue that EPA correctly determined approval of the revised selenium criteria would have “no effect” because the criteria were more protective for bull trout and, therefore, consultation was not required. Defendants are correct.
In 2004, Oregon adopted freshwater acute and chronic selenium criteria expressed as dissolved concentrations in the water column. (EPA 54, 76.) In the July 2012 Oregon BiOp, FWS determined that Oregon's proposed freshwater selenium criteria would not jeopardize bull trout or adversely modify its critical habitat. On January 31, 2013, EPA disapproved of Oregon's proposed acute and chronic selenium criteria when it realized Oregon had not applied the appropriate conversion factors. (EPA 1-3, 11.) In its January 31, 2013 CWA Determinations, EPA expressed that Oregon used incorrect values to convert total recoverable concentrations to dissolved concentrations, resulting in a slightly less stringent value. (EPA 54-55.) EPA noted that it was “scientifically acceptable” and more protective to species to use a conversion factor (CF) of 0.996 for the acute criterion and a CF of 0.922 for the chronic criterion to convert the total recoverable value to a dissolved value. (EPA 54-55.) EPA advised Oregon that it could remedy the situation by recalculating the selenium criteria using its conversion factors or by providing a scientific rationale for its adopted criteria. (EPA 55.)
On December 12, 2013, ODEQ adopted revised water quality standards and submitted them to EPA for approval. (EPA 4398.) In the adopted revisions, ODEQ corrected the freshwater selenium conversion factor to correctly express the criteria as a dissolved value. (EPA 4398.) On January 9, 2014, Oregon submitted its revised selenium criteria to EPA utilizing EPA's conversion factors. (EPA 4398-4400.) On April 11, 2014, EPA approved Oregon's adopted revised freshwater acute and chronic selenium criteria, noting that they “address the EPA's January 31, 2013 disapproval” of the selenium criteria. (EPA 3990-91, 4002.)
NWEA argues that EPA violated its duty to consult on the 4.6 ug/L standard because the revised selenium criterion “may affect” the listed bull trout. See Karuk Tribe of Cal. v. U.S. Forest Serv., 681 F.3d 1006, 1027 (9th Cir. 2012) (stating that if agency determines its action “may affect” a listed species or critical habitat, it must informally or formally consult); 50 C.F.R. § 402.14 (discussing formal consultation). The bar for consultation is low and, in NWEA's view, is triggered by “[a]ny possible effect, whether beneficial, benign, adverse or of an undetermined character, ” and is only excused if the agency determines there is “no effect.” Karuk Tribe, 681 F.3d at 1027. According to NWEA, because FWS acknowledged in the Oregon BiOp that small amounts of selenium can have large adverse effects on aquatic life, and EPA did not make a specific finding that the dissolved selenium level 4.6 ug/L would have “no effect, ” EPA's duty to consult was not excused. NWEA therefore believes that EPA was required to consult prior to approving Oregon's selenium standard in 2014. (Pl.'s Mot. Summ. J. at 33.)
EPA highlights correspondence between EPA and FWS indicating that the revised selenium criteria were adopted in April 2014 to correct the selenium values from total recoverable to dissolved, and that the underlying selenium conclusions reached in the Oregon BiOp remain unchanged. EPA argues that the net effect of the adopted revised selenium criteria are more protective for listed species. Finally, EPA contends that NWEA has not identified any information challenging the Oregon BiOp's selenium findings or that there are any material differences between Oregon's original and revised selenium criteria. The court agrees with EPA that its duty to consult was not triggered here.
EPA may hold “informal consultations” to discuss whether formal consultation is necessary. 50 C.F.R. § 402.13(a). If [EPA] determines during informal consultation that the action will not adversely affect a listed species or habitat, and [FWS] concurs, “the consultation process is terminated, and no further action is necessary.” Id. EPA “may avoid the consultation requirement only if it determines that its action will have ‘no effect' on a listed species or critical habitat.” Karuk Tribe, 681 F.3d at 1027; see also Nat'l Fam. Farm Coal., 966 F.3d at 922 (providing that EPA had no duty to consult where its action had no effect on listed species or habitat).
As EPA explained, Oregon failed to use the correct conversion factor for calculating proposed selenium criteria. In the Oregon BiOp, FWS determined Oregon's proposed chronic selenium criterion of 5 ug/L would not cause jeopardy for bull trout. When EPA learned that Oregon used an incorrect conversion factor, it disapproved the selenium numbers. After Oregon recalculated the selenium criteria using the corrected conversion factors, it approved a lower chronic selenium criterion, 4.6 ug/L. The 2014 selenium standard is more protective.
The court finds that EPA reasonably determined that its approval of the revised adopted selenium criteria would have “no effect” on listed species or critical habitat. Indeed, NWEA identifies no evidence whatsoever that the slightly more protective criteria for acute and chronic selenium had any effect on bull trout or other species. See Nat'l Fam. Farm Coal., 966 F.3d at 922-23 (holding EPA's use of more conservative assumptions when calculating risk quotients and level of concern to reach “no effect” conclusion was not arbitrary or capricious). NWEA did not respond to defendants' cross-motion for summary judgment on this issue. The correspondence between EPA and ODEQ reveals that the revised selenium standards were adopted solely to apply the correct conversion factor, a premise unchallenged by NWEA. Accordingly, the court concludes that NWEA has not demonstrated that EPA's conclusion that the April 2014 approval of the revised selenium criteria would have “no effect” on bull trout was arbitrary or capricious. Id.; Karuk Tribe, 681 F.3d at 1028. In short, NWEA's motion for summary judgment on claim four should be denied, and defendants' cross-motion for summary judgment on claim four should be granted.
CONCLUSION
For all these reasons, NWEA's Motion for Summary Judgment (ECF No. 48) should be DENIED and defendants' Cross-Motion for Summary Judgment (ECF No. 57) should be GRANTED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to District Judge Marco A.
Hernandez. Objections, if any, are due within fourteen days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.