Judge ignores the sound and fury of the briefs: simple failure to consider the salmon recovery plan leads to a remand of Washington State water quality regulations
Wild Fish Conservancy v. U.S. Environmental Protection Agency, No. C08-0156-JCC, 2010 WL 1734850 (W.D. Wash, April 28, 2010)(Judge Coughenour).
BACKGROUND: Plaintiff filed this lawsuit in January 2008, arguing that the Environmental Protection Agency (EPA) and the National Marine Fisheries Service violated the Clean Water Act and the Endangered Species Act by approving Washington State regulations which exempt Puget Sound salmon farms from general sediment management standards. Plaintiff argues that the EPA violated the Clean Water Act by approving regulations that are inconsistent with the Act's requirements, and that both agencies violated the Endangered Species Act by ignoring the best scientific and commercial data when they engaged in an inter-agency consultation process. Plaintiff points with particular force to data about sea lice and the hazards they create for wild fish. According to Plaintiff, the EPA and the Fisheries Service ignored scientific literature tending to show that sea lice are likely to adversely affect native species of fish like the Chinook salmon, Chum salmon, and Steelhead trout
EXCERPT: For the Court, however, this case boils down to a single fact, which reduces the bulk of the parties' lengthy arguments and filings to nothing more than “sound and fury, signifying nothing.” WILLIAM SHAKESPEARE, MACBETH act 5 sc. 5. The plain fact of the matter is that the Fisheries Service and EPA ignored a salmon recovery plan and an orca recovery plan that the Fisheries Service itself describes as “incorporating the best available science to date for salmon recovery,” and “based on the best available science,” respectively. They ignored these plans when concluding that proposed Washington State water-quality regulations were “not likely to adversely affect wild salmon populations or their critical habitat.” It is difficult for the Court to square the agencies' failure to use the recovery plans with the requirement under the Endangered Species Act that federal agencies “use the best scientific and commercial data available.” See 16 U.S.C. § 1536(a)(2). It goes without saying that the Fisheries Service's own recovery plans were available to the Fisheries Service when it reached its conclusion. Because the recovery plans constitute the best available science, and because the record demonstrates that the agencies failed to use them in reaching their decision, an obvious conclusion follows: The agencies failed to use the best available science in determining that formal consultation was unnecessary. The agencies thereby ran afoul of the Endangered Species Act.
The parties' lengthy briefs contain many other arguments, none of which affects the Court's holding… This case is actually relatively straight-forward: When making decisions that require them to “use the best available scientific and commercial data available,” the Fisheries Service and the EPA failed to use recovery plans that the Fisheries Service itself describes as containing the “best scientific evidence available.” For this reason, the Court must set aside the agencies' conclusion - which they reached after informal consultation - that the Washington State pro-posed water-quality regulations are “not likely to adversely affect endangered or threatened species or critical habitat.”
ORDER: The Court therefore SETS ASIDE the EPA's 2008 decision to approve Washington State's proposed water-quality standards dealing with salmon farms. The Court ORDERS the Fisheries Service and the EPA to re-consider whether formal consultation is required - this time taking into account the best available science.