Moving Beyond "Jeopardy:" Water Quality Standards and the Conservation and Recovery of Endangered Aquatic Species
By Andrew C. Hanson
INTRODUCTION
Poor water quality in our nation's lakes and streams is a formidable obstacle to the protection of freshwater fish and wildlife. The most telling indicator of water quality is the health of the plants and animals that inhabit an aquatic ecosystem. The number of aquatic species listed as endangered or threatened in recent years is staggering. As of April 30, 2000, the federal government listed 79 species of fish as endangered and 44 as threatened in the United States. In the Pacific Region alone, 37 individual populations of freshwater fish are listed as threatened or endangered. Twenty-six of these are distinct populations of Pacific Salmon, whose decline can be attributed in part to poor water quality. Given these listings it seems clear that the implementation of the Clean Water Act (the “CWA”), the nation's principal water pollution control law, has fallen far short of ensuring the water quality necessary to reverse the decline of these populations.
One recent Fifth Circuit decision indicates that there may be hope for more effective implementation of the CWA by using section 7(a)(1) of the Endangered Species Act (the “ESA”).9 In 1998, the Fifth Circuit decided Sierra Club v. Glickman, holding that all federal agencies have a mandatory duty to develop programs in consultation with the Secretary of Interior for the conservation of threatened and endangered species. The case involved the 175 mile-long Edwards Aquifer in central Texas, a water resource of economic significance to Texas, and ecological significance to five federally-listed endangered species. The Sierra Club challenged the U.S. Department of Agriculture's (“USDA”) failure to use its authority to carry out programs for the conservation of the Edwards-dependent species under section 7(a)(1) of the ESA.12 At the end of a three-year legal battle, the Fifth Circuit breathed new life into section 7(a)(1) and the clarified federal agencies' obligations under it.
Similar to the USDA in Sierra Club v. Glickman, the U.S. Environmental Protection Agency (“EPA” or the “Agency”) may also be required by section 7(a)(1) to use its authority to conserve aquatic species within waters of the United States. EPA's principle authority for doing so lies in the CWA. The value of the CWA in conserving listed species lies in part in its use of water quality standards for measuring, maintaining and improving the quality of the nation's waters. The water quality standards are an important component of the CWA, as they play a fundamental role in the development of Total Maximum Daily Loads (“TMDLs”), the issuance of National Pollutant Discharge Elimination System (“NPDES”) permits, state certification of federally licensed projects, and overall water quality monitoring and reporting.
Some commentators and authorities have identified water quality standards under the CWA as an important vehicle available to both the States and EPA to reduce risks to species listed under the ESA. The concept of risk is central to implementation of the ESA, and defining it forms the foundation of federal agency decisions under the Act. However, there will inevitably be uncertainty in estimating the risk to threatened species because of the difficulty of quantifying incremental threats posed by both natural and human activities. Even when defined, translating that level of risk into a standard for measuring and maintaining water quality is a formidable task.
The EPA's interpretation of its obligations under the ESA is presently embodied in a Draft Memorandum of Agreement (“MOA”) with the Fish and Wildlife Service and National Marine Fisheries Service. Under this interpretation, the EPA is required to insure that revised water quality standards do not jeopardize the continued existence of listed species under section 7(a)(2) of the Act. The regulatory definition of “jeopardy” is any action that “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. . . .” However, the CWA itself demands something more than a mere assurance that water quality standards do not cause the extinction of aquatic species.
A flurry of activity has surrounded the effort to ensure that water quality standards do not cause “jeopardy” to aquatic species, but merely preventing extinction may be the wrong goal. Water quality standards form the foundation of the water quality-based provisions of the CWA and have the potential to describe the habitat conditions necessary to the survival of listed fishes. As a result, section 7(a)(1) may provide the necessary mandate for EPA to ensure that revised state standards not only prevent jeopardy, but affirmatively promote the recovery of ESA-listed aquatic species.
This paper is intended to establish the legal bases under both the CWA and section 7(a)(1) of the ESA, that require EPA to reconsider how it oversees state water quality standards programs. First, this paper asserts that the CWA requires that water quality criteria define habitat conditions necessary for the protection and recovery of threatened and endangered aquatic species. Second, even if the CWA does not require this level of protection, it certainly allows it. This in turn triggers EPA's duties under section 7(a)(1) of the ESA to develop and implement a plan for the conservation and recovery of those species.
Part I of this paper briefly reviews water quality standards provisions under the CWA, section 7 of the ESA, and the recent MOA between EPA and the Services addressing implementation of the two laws. Part II explores the legal relevance of the Draft MOA, and argues that the language and legislative history of the CWA, as well as EPA guidance documents indicate that EPA has misinterpreted its obligations under the CWA with respect to water quality standards. The CWA requires that EPA implement the water quality standards program in a way that affirmatively promotes the recovery of threatened or endangered species, rather than merely preventing their jeopardy. Addressing authorities under the ESA, Part III introduces Sierra Club v. Glickman, analyzes whether that decision was correctly decided, and discusses some caveats to implementation of section 7(a)(1) of the ESA. Part IV argues that the Fifth Circuit's reading of section 7(a)(1) in Sierra Club v. Glickman requires EPA to use its authority under the CWA to develop a species-specific conservation strategy for endangered species. This section also uses EPA's recent approval of Oregon's revised water quality criteria for temperature to illustrate the potential impact of a section 7(a)(1) plan on EPA's implementation of the water quality standards provisions of the CWA. This paper concludes that, according to section 7(a)(1) of the ESA, that plan should require EPA to use the full breadth of its authority under the water quality provisions. This includes EPA's authority to approve only those new or revised state water quality standards that are set at levels that eliminate or minimize water quality risks to listed aquatic species. In addition, the plan should require EPA to use its authority to review existing state water quality standards and develop and implement a new site-specific criterion where needed to ensure the recovery of those species.
Poor water quality in our nation's lakes and streams is a formidable obstacle to the protection of freshwater fish and wildlife. The most telling indicator of water quality is the health of the plants and animals that inhabit an aquatic ecosystem. The number of aquatic species listed as endangered or threatened in recent years is staggering. As of April 30, 2000, the federal government listed 79 species of fish as endangered and 44 as threatened in the United States. In the Pacific Region alone, 37 individual populations of freshwater fish are listed as threatened or endangered. Twenty-six of these are distinct populations of Pacific Salmon, whose decline can be attributed in part to poor water quality. Given these listings it seems clear that the implementation of the Clean Water Act (the “CWA”), the nation's principal water pollution control law, has fallen far short of ensuring the water quality necessary to reverse the decline of these populations.
One recent Fifth Circuit decision indicates that there may be hope for more effective implementation of the CWA by using section 7(a)(1) of the Endangered Species Act (the “ESA”).9 In 1998, the Fifth Circuit decided Sierra Club v. Glickman, holding that all federal agencies have a mandatory duty to develop programs in consultation with the Secretary of Interior for the conservation of threatened and endangered species. The case involved the 175 mile-long Edwards Aquifer in central Texas, a water resource of economic significance to Texas, and ecological significance to five federally-listed endangered species. The Sierra Club challenged the U.S. Department of Agriculture's (“USDA”) failure to use its authority to carry out programs for the conservation of the Edwards-dependent species under section 7(a)(1) of the ESA.12 At the end of a three-year legal battle, the Fifth Circuit breathed new life into section 7(a)(1) and the clarified federal agencies' obligations under it.
Similar to the USDA in Sierra Club v. Glickman, the U.S. Environmental Protection Agency (“EPA” or the “Agency”) may also be required by section 7(a)(1) to use its authority to conserve aquatic species within waters of the United States. EPA's principle authority for doing so lies in the CWA. The value of the CWA in conserving listed species lies in part in its use of water quality standards for measuring, maintaining and improving the quality of the nation's waters. The water quality standards are an important component of the CWA, as they play a fundamental role in the development of Total Maximum Daily Loads (“TMDLs”), the issuance of National Pollutant Discharge Elimination System (“NPDES”) permits, state certification of federally licensed projects, and overall water quality monitoring and reporting.
Some commentators and authorities have identified water quality standards under the CWA as an important vehicle available to both the States and EPA to reduce risks to species listed under the ESA. The concept of risk is central to implementation of the ESA, and defining it forms the foundation of federal agency decisions under the Act. However, there will inevitably be uncertainty in estimating the risk to threatened species because of the difficulty of quantifying incremental threats posed by both natural and human activities. Even when defined, translating that level of risk into a standard for measuring and maintaining water quality is a formidable task.
The EPA's interpretation of its obligations under the ESA is presently embodied in a Draft Memorandum of Agreement (“MOA”) with the Fish and Wildlife Service and National Marine Fisheries Service. Under this interpretation, the EPA is required to insure that revised water quality standards do not jeopardize the continued existence of listed species under section 7(a)(2) of the Act. The regulatory definition of “jeopardy” is any action that “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. . . .” However, the CWA itself demands something more than a mere assurance that water quality standards do not cause the extinction of aquatic species.
A flurry of activity has surrounded the effort to ensure that water quality standards do not cause “jeopardy” to aquatic species, but merely preventing extinction may be the wrong goal. Water quality standards form the foundation of the water quality-based provisions of the CWA and have the potential to describe the habitat conditions necessary to the survival of listed fishes. As a result, section 7(a)(1) may provide the necessary mandate for EPA to ensure that revised state standards not only prevent jeopardy, but affirmatively promote the recovery of ESA-listed aquatic species.
This paper is intended to establish the legal bases under both the CWA and section 7(a)(1) of the ESA, that require EPA to reconsider how it oversees state water quality standards programs. First, this paper asserts that the CWA requires that water quality criteria define habitat conditions necessary for the protection and recovery of threatened and endangered aquatic species. Second, even if the CWA does not require this level of protection, it certainly allows it. This in turn triggers EPA's duties under section 7(a)(1) of the ESA to develop and implement a plan for the conservation and recovery of those species.
Part I of this paper briefly reviews water quality standards provisions under the CWA, section 7 of the ESA, and the recent MOA between EPA and the Services addressing implementation of the two laws. Part II explores the legal relevance of the Draft MOA, and argues that the language and legislative history of the CWA, as well as EPA guidance documents indicate that EPA has misinterpreted its obligations under the CWA with respect to water quality standards. The CWA requires that EPA implement the water quality standards program in a way that affirmatively promotes the recovery of threatened or endangered species, rather than merely preventing their jeopardy. Addressing authorities under the ESA, Part III introduces Sierra Club v. Glickman, analyzes whether that decision was correctly decided, and discusses some caveats to implementation of section 7(a)(1) of the ESA. Part IV argues that the Fifth Circuit's reading of section 7(a)(1) in Sierra Club v. Glickman requires EPA to use its authority under the CWA to develop a species-specific conservation strategy for endangered species. This section also uses EPA's recent approval of Oregon's revised water quality criteria for temperature to illustrate the potential impact of a section 7(a)(1) plan on EPA's implementation of the water quality standards provisions of the CWA. This paper concludes that, according to section 7(a)(1) of the ESA, that plan should require EPA to use the full breadth of its authority under the water quality provisions. This includes EPA's authority to approve only those new or revised state water quality standards that are set at levels that eliminate or minimize water quality risks to listed aquatic species. In addition, the plan should require EPA to use its authority to review existing state water quality standards and develop and implement a new site-specific criterion where needed to ensure the recovery of those species.
