Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 1 of 31
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`
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`Smith & Lowney PLLC
`Richard A. Smith (WSBA No. 21788)*
`Claire Tonry (WSBA No. 44497)*
`2317 E. John St.
`Seattle, WA 98112
`Tel: (206) 805-0857
`richard@smithandlowney.com
`claire@smithandlowney.com
`
`Center for Biological Diversity
`Hannah Connor (VSB No. 74785)*
`1411 K Street NW, Suite 1300
`Washington, DC 20005
`Tel: (202) 681-1676
`hconnor@biologicaldiversity.org
`
`Attorneys for Plaintiff
`*Seeking Admission pro hac vice
`
`
`IN THE UNITED STATES DISTRICT COURT FOR
` THE DISTRICT OF ARIZONA
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`
`
`
`
`
`
`
`CENTER FOR BIOLOGICAL
`DIVERSITY, a non-profit organization,
`
`
`
`
` Plaintiff,
`
`
`Case No.:
`
`COMPLAINT FOR DECLARATORY
`AND INJUNCTIVE RELIEF
`
`
`
`
`
`
`
`v.
`
`UNITED STATES ENVIRONMENTAL
`PROTECTION ADMINISTRATION, and
`MICHAEL S. REGAN, in his official
`capacity,
`
`Defendants.
`
`
`
`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 2 of 31
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`INTRODUCTION
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`1.
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`In this action, the Center for Biological Diversity (Center)—an environmental
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`conservation organization that works to protect native species and their habitats against harm from
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`threats such as toxic pollution—challenges the failure of the United States Environmental
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`Protection Agency (EPA) to consult under Section 7 of the Endangered Species Act (ESA) on the
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`effects to wildlife of its revisions that weakened the aquatic life water quality criteria for the heavy
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`metal cadmium in 2016, 81 Fed. Reg. 19,176. In doing so, EPA put at greater risk many
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`endangered species, including salmon, sturgeon, freshwater mussels, sea turtles and other species
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`that are sensitive to cadmium pollution.
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`2.
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`Section 7(a)(2) of the ESA requires EPA to ensure that any action it authorizes will
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`not jeopardize the survival and recovery of endangered and threatened species or adversely modify
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`habitat deemed essential to their survival and recovery. 16 U.S.C. § 1536 (a)(2). To fulfill the
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`substantive mandates of the ESA, the action agency—the agency undertaking or authorizing an
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`action, in this case EPA—must consult with scientists and other experts with the United States
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`Fish & Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (together, the
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`“Services”)—agencies that specialize in the conservation and protection of threatened and
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`endangered species in marine and non-marine environments—to both ensure against jeopardizing
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`the species and to minimize potential for an action to harm ESA-listed species or their habitats.
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`3.
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`Subject to its authority under the Clean Water Act (CWA), EPA is responsible for
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`setting water quality criteria based on its evaluation of scientific information regarding the impacts
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`of pollutants in any body of water. 33 U.S.C. § 1314(a). In setting criteria, EPA considers water
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`quality effects that fall into two main categories, those designed to protect human health and those
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`designed to protect aquatic life. The decisions EPA makes in setting national water quality criteria
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 3 of 31
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`profoundly affect water quality and riparian habitats across the country by influencing when and
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`to what extent the presence of a pollutant—in this case, cadmium—can be considered safe in a
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`waterway. These national criteria are commonly known as “304(a)” criteria, in reference to Section
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`304(a) of the CWA, 33 U.S.C. § 1314(a).
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`4.
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`In 2016, EPA finalized a revised set of ambient water quality criteria relating to
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`effects of cadmium on aquatic organisms based upon EPA’s assessment of cadmium’s ecological
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`effects. These criteria are less protective of water quality than prior iterations of the criteria for
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`chronic freshwater exposure.
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`5.
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`Once finalized, states are required to consider EPA’s revised cadmium criteria
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`during their triennial re-examination of their water quality standards, and either adopt EPA’s
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`revised Section 304(a) criteria for cadmium or explain their reasons for not doing so. 40 C.F.R. §
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`131.20. At least 18 states, territories, and/or tribes have adopted EPA’s revised cadmium criteria
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`since they were promulgated in 2016, effectively weakening protections from cadmium exposure
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`across the country as a result.
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`6.
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`EPA took this action without consulting with the Services as required by Section 7
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`of the ESA. This is a clear violation of EPA’s obligations to engage the Services in consultation
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`to insure EPA’s action “is not likely to jeopardize the continued existence of any endangered
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`species or threatened species or result in the destruction or adverse modification of habitat of such
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`species.” 16 U.S.C. § 1536(a)(2). See also 50 C.F.R. § 402.14(a) (Requiring formal consultation
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`for agency actions that “may affect listed species or critical habitat.”)
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`7.
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`EPA’s failure to consult with the Services in revising the cadmium Section 304(a)
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`criteria in 2016 follows a history of EPA consistently failing to consult under the ESA on the
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`adoption of water quality criteria. These significant failures, compounded over time, even further
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 4 of 31
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`put imperiled species at risk and certainly do not satisfy the objectives of the ESA, which is “to
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`provide a means whereby the ecosystems upon which endangered species and threatened species
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`depend may be conserved, [and] to provide a program for the conservation of such endangered
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`species and threatened species.” 16 U.S.C. § 1531(b).
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`8.
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`EPA’s failure to consult on the cadmium criteria revisions also does not abide by
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`the Memorandum of Agreement (MOA) it entered into with the Services on January 10, 2001.
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`Memorandum of Agreement Between the Environmental Protection Agency, Fish and Wildlife
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`Service and National Marine Fisheries Service Regarding Enhanced Coordination Under the
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`Clean Water Act and Endangered Species Act, 66 Fed. Reg. 11,202 (Feb. 22, 2001). The MOA
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`contemplates a process for EPA’s consultation with the Services on its development and adoption
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`of aquatic life criteria, including for cadmium, under the CWA Section 304(a), 33 U.S.C. §
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`1314(a). 66 Fed. Reg. at 11,212. EPA and the Services recognized that consultation on EPA’s
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`adoption of these criteria, rather than consultation on state-by-state adoption of criteria, “will
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`ensure a consistent approach to evaluating the effects of pollutants on species and identifying
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`measures that may be needed to better protect them” and “will also ensure better consideration of
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`effects on species whose ranges cross State boundaries.” Id.
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`9.
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`The seriousness of EPA’s legal error in failing to consult with the Services on this
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`action is compounded by the significance of the increased risk to threatened and endangered
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`species from cadmium pollution as a result of this action. Cadmium is a toxic heavy metal that is
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`found in mineral deposits and often used in manufacturing batteries, coatings, and electronics.
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`Cadmium can be mined, and is also found in fossil fuels, iron and steel, cement, fertilizers, and in
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`wastes from lead, copper, zinc, and coal mining. Among other methods, cadmium enters the
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`environment through natural sources such as weathering and erosion of rocks and soil and through
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 5 of 31
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`human-caused sources such as mining, agriculture, and waste streams from industrial processes,
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`manufacturing, coal ash ponds, fossil fuel combustion, incineration, and municipal activities.
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`10.
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`Cadmium has no beneficial biological function and is harmful at any exposure
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`level. Acute exposure to cadmium can cause increased mortality in aquatic and marine life, which
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`can include species listed as threatened or endangered under the ESA. Chronic exposure can
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`further result in adverse effects on growth, reproduction, immune and endocrine systems, and
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`development and behavior in these aquatic species.
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`11.
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`In its comments on the draft cadmium criteria, NMFS expressed concerns about
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`EPA’s “piecemeal approach” of foregoing consultation for “considering implications of such
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`guidelines for broadly ranging species.” In particular, NMFS expressed concern about the impacts
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`of the less protective chronic criteria on salmon, sea turtles, sturgeon, and sawfish. NMFS’s
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`explanation of its concern with regard to sea turtles is instructive:
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`EPA’s cadmium guidelines apply to all waters of the US, so exposures would occur
`throughout the US portion of sea turtle ranges. Further, cadmium accumulates in
`tissue with age, and sea turtles are understood to be very long lived species. For
`example, green turtles reach sexual maturity between 20 and 50 years of age. For
`such long lived species we would need to consider whether cadmium accumulation
`from US waters over a lifespan would reach tissue concentrations directly resulting
`in or contributing to adverse effects.
`
`12.
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`The Services’ consultation regulations address this type of “piecemeal approach”
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`head-on by providing that formal consultation “may encompass . . . a number of similar individual
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`actions within a given geographical area,” but this “does not relieve the Federal agency of the
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`requirements for considering the effects of the action as a whole.” 50 C.F.R. § 402.14(c). Indeed,
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`for federal programs that affect ESA-listed species, such as EPA’s adoption of Section 304(a)
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`water quality criteria under the CWA, programmatic consultation is required to allow the Services
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`to establish standards, guidelines, and governing criteria to avoid or minimize the effects of the
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 6 of 31
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`program by instituting protocols to track and respond to the collective impacts of the program. Id.
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`This programmatic review provides the only way to avoid piecemeal destruction of species and
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`habitat. See 80 Fed. Reg. 26,832, 26,836 (May 11, 2015). That is because the aggregate impacts
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`of the water quality criteria can be analyzed and meaningfully addressed only through
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`programmatic review, which is necessary to ensure the effects of the program as a whole do not
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`jeopardize listed species through death by a thousand small cuts. See id., and see e.g., 66 Fed. Reg.
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`at 11,212.
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`13.
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`Plaintiff therefore seeks a declaration that EPA is in violation of ESA Section 7 for
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`promulgating cadmium water quality criteria in 2016 without consultation, an order remanding
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`those criteria and vacating the less protective chronic freshwater criterion, and any other
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`appropriate relief.
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`JURISDICTION AND VENUE
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`14.
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`This case arises under the ESA, 16 U.S.C. §§ 1531-1544, and the Court has
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`jurisdiction under the ESA citizen suit provision, 16 U.S.C. §§ 1540(c), (g).
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`15.
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`By written notice to Defendants dated December 16, 2020, Plaintiff provided notice
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`of its intent to file suit more than sixty days prior to the filing of this complaint, as required by the
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`ESA. 16 U.S.C. § 1540(g). Plaintiff’s notice letter demanded that Defendants initiate and complete
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`programmatic ESA consultation on EPA’s 2016 promulgation of revised Section 304(a) water
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`quality criteria for cadmium. Because Defendants failed to respond or remedy the alleged
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`violation, an actual, justiciable controversy exists within the meaning of 28 U.S.C. § 2201(a).
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`16.
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`This Court has the authority to grant declaratory relief pursuant to the Declaratory
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`Judgment Act, 28 U.S.C. § 2201. This Court further has authority to grant injunctive relief under
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`28 U.S.C. § 2202 and 16 U.S.C. 1540(g)(1). The ESA’s citizen suit provision allows the Court to
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 7 of 31
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`enjoin a federal agency that is in violation of the ESA and thereby compel compliance with the
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`ESA’s requirements, including the duty to consult under Section 7. 16 U.S.C. § 1640(g).
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`17.
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`Venue is appropriate in this Court under 28 U.S.C. § 1391(e)(1) because Plaintiff’s
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`principal place of business is Tucson, Arizona, thus Plaintiff resides in this District.
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`PARTIES
`
`Plaintiff
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`18.
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`Plaintiff Center for Biological Diversity is a national nonprofit conservation
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`organization that works through science, law, and policy to secure a future for all species, great or
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`small, especially those hovering on the brink of extinction. The Center has more than 1.6 million
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`supporters worldwide, including approximately 89,610 members. The Center has worked for
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`decades to safeguard water and aquatic habitats for people, plants, and animals. The Center’s
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`members and staff value and benefit from rare species’ continued existence in the wild and are
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`harmed by water degradation that threatens wild species’ survival and recovery. The Center has
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`worked for years to protect imperiled species that may be harmed by exposure to toxic chemicals
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`and heavy metals such as cadmium. The Center brings this action on behalf of itself and its
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`members.
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`19.
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`The Center and its members are harmed by EPA’s failure to consult with FWS and
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`NMFS on the effects of its revision of the cadmium criteria on species listed as threatened or
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`endangered under the ESA.
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`20.
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`The Center’s members derive aesthetic, recreational, emotional, and spiritual
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`benefits from aquatic species, including salmon, sturgeon, amphibians, reptiles such as sea turtles,
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`mussels, and birds, and their continued existence in their native habitats. The Center’s members
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 8 of 31
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`include individuals who regularly visit natural areas occupied by threatened and/or endangered
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`species impacted by EPA’s cadmium criteria.
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`21.
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`The Center’s members include individuals who derive aesthetic, spiritual,
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`recreational, and professional benefits from endangered loggerhead sea turtles, Atlantic sturgeon,
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`and pallid sturgeon, and threatened green sturgeon, delta smelt, salmon, steelhead, and mussels.
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`These members enjoy swimming, snorkeling, boating, and walking the shores and banks of
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`waterways seeking opportunities to learn about and view these species. However, their enjoyment
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`is diminished by actions that reduce the abundance and fitness of these species.
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`22.
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`The Center’s has members, for example, that derive aesthetic and recreational
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`benefits from observing Atlantic sturgeon, which can grow to over 500 pounds and like to breach
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`above the water’s surface during spawning season. However, these members’ enjoyment is
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`lessened when there are fewer sturgeon to observe and when the sturgeons’ health and vigor is
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`impaired. Similarly, the Center has members who regularly visit areas where the southern
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`population of green sturgeon is known to occur in hopes of seeing these fish in the wild, but their
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`efforts and aesthetic, recreational, and spiritual enjoyment is frustrated by the green sturgeon’s
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`scarcity, which is due in part to water pollution.
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`23.
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`The populations of endangered and threatened species from which the Center’s
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`members benefit, including loggerhead sea turtles, Atlantic sturgeon, pallid sturgeon, green
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`sturgeon, salmon, and steelhead, range across state lines and are impacted by cadmium pollution.
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`Atlantic sturgeon, for instance, are exposed to anthropogenic cadmium contamination in
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`Chesapeake Bay and the James River, where Center members go to observe the fish.
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`24.
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`Several of these species, including sea turtles and sturgeon, are also long-lived and
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`therefore particularly susceptible to chronic cadmium pollution and adverse impacts from
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`cadmium accumulating in tissue over many decades.
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`25.
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`EPA’s failure to consult with the Services on the cumulative, interstate, and range-
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`wide impacts of its revised cadmium criteria on such species bypasses substantive safeguards the
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`Services can apply to avoid jeopardy to the species and avoid the likelihood of adverse effects, to
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`the detriment of the species, and ultimately to the Center’s members who benefit from these
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`species’ health and survival. For example, had EPA consulted the Services, it would have had to
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`take into account the totality of the impact of increasing the freshwater chronic cadmium criterion
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`on long-lived species that inhabit waterways that cross state lines, and which are exposed to
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`cadmium pollution in multiple forms from multiple pathways. This assessment would present
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`multiple opportunities—and likely trigger obligations—for EPA and the Services to modify the
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`criteria to be more protective of endangered and threatened species. At least 18 states, territories,
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`and/or tribes would then be implementing more protective criteria in their CWA programs.
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`26.
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`Plaintiff has also suffered a procedural injury from Defendants’ failure to comply
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`with Section 7 of the ESA. Because compliance with the Section 7 consultation process is essential
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`to protecting listed species and critical habitats—to which the Center’s members have concrete
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`interests, Defendants’ procedural failure to comply with Section 7 is causing current and ongoing
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`harm to Plaintiff’s substantive recreational, scientific, spiritual, and aesthetic interests. The Center
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`relies on Defendants’ compliance with Section 7 to achieve the Center’s organizational purposes
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`on behalf of itself and its members, including monitoring the impacts of agency actions on the
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`environment and listed species; monitoring legal compliance concerning environmental
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 10 of 31
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`management; educating members, directors, staff, and the public concerning species management
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`and the state of the environment; and advocating for policies that protect habitats and wildlife.
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`27.
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`Plaintiff is a non-profit conservation organization with limited resources that can
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`be dedicated to its core mission to protect the environment, imperiled species, and the habitats they
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`rely on. Defendants’ actions impede Plaintiff’s ability to carry out its fundamental mission, and
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`directly undercuts decades of successful work by Plaintiff to enforce environmental laws that
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`protect waterways and listed species.
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`28.
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`Defendants’ failure to comply with the ESA is causing actual, concrete injuries to
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`the Center and its members. The interests and organizational purposes of the Center and its
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`members are directly and irreparably injured by Defendants’ violations of law as described in this
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`Complaint. Unless this Court grants the requested relief, harm to the environment and protected
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`species will continue to accrue, and the aesthetic, recreational, educational, professional, scientific,
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`spiritual, and conservation interests of Plaintiff and its members will continue to be adversely
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`affected.
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`29.
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`The relief Plaintiff seeks in this lawsuit will redress its injuries by requiring EPA
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`to comply with the ESA. This relief will protect Plaintiff’s interests by ensuring that listed species
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`will not be jeopardized by the revision of the cadmium criteria, as the ESA requires, and give
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`Plaintiff and its members more comprehensive and complete information regarding the revision’s
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`threats to waterways, protected species, and other valued resources. It will allow Plaintiff, its
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`members and supporters, and others who are injured by less stringent regulation of toxic water
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`pollution, to participate and advocate more effectively for changes to mitigate the adverse impacts
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`of the cadmium criteria revision.
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 11 of 31
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`Defendants
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`30.
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`Defendant United States Environmental Protection Agency is an independent
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`agency of the executive branch of the United States government. EPA is the federal agency
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`responsible for applying and implementing the CWA at the national level.
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`31.
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`Defendant Michael S. Regan is the Administrator of EPA and has authority over its
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`actions. Plaintiff brings this action against Administrator Regan in his official capacity only.
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`LEGAL BACKGROUND
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`The Endangered Species Act
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`32. With the ESA, Congress intended endangered species to be afforded the highest of
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`priorities. The ESA’s purpose is “to provide a means whereby the ecosystems upon which
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`endangered species and threatened species depend may be conserved, [and] to provide a program
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`for the conservation of such endangered species and threatened species.” 16 U.S.C. § 1531(b).
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`33.
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`The ESA assigns responsibility to implement the statute to the Secretaries of
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`Commerce and Interior, which in turn have delegated responsibility to NMFS and FWS,
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`respectively. 50 C.F.R. § 402.01.
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`34.
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`To fulfill the substantive purposes of the ESA, federal agencies are required to
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`engage in Section 7 consultation with the Services to “insure that any action authorized, funded,
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`or carried out by such agency . . . is not likely to jeopardize the continued existence of any
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`endangered species or threatened species or result in the destruction or adverse modification of
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`habitat of such species which is determined . . . to be critical.” 16 U.S.C. § 1536(a)(2). Formal
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`consultation is required if an agency determines that any of its actions “may affect listed species
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`or critical habitat.” 50 C.F.R. § 402.14(a).
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 12 of 31
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`35.
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`The ESA’s regulatory definition of “action” is broad and includes “all activities or
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`programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies
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`in the United States or upon the high seas,” such as the promulgation of regulations, or any “actions
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`directly or indirectly causing modifications to the land, water, or air.” Id.
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`36.
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`Section 7 consultation is required for all such actions “in which there is
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`discretionary Federal involvement or control.” 50 C.F.R. § 402.03. When an agency “had some
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`discretion to influence or change the activity for the benefit of a protected species” the action
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`involves sufficient discretion to require Section 7 consultation. Karuk Tribe of Cal. v. United States
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`Forest Service, 681 F.3d 1006, 1024 (9th Cir. 2012).
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`37.
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`Section 7(a)(2) and its implementing regulations set forth a detailed process that
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`must be followed before agencies take or approve actions that may affect threatened or endangered
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`species or critical habitat.
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`38.
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`Each federal agency must “review its actions at the earliest possible time to
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`determine whether any action may affect listed species or critical habitat” in the action area and
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`thus whether consultation is required. 50 C.F.R. § 402.14(a). The term “may affect” is broadly
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`construed to include “[a]ny possible effect, whether beneficial, benign, adverse, or of an
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`undetermined character,” and thus is easily triggered. 51 Fed. Reg. 19,926, 19,949 (June 3, 1986).
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`The “action area” includes all areas that would be “affected directly or indirectly by the Federal
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`action and not merely the immediate area involved in the action.” 50 C.F.R. § 402.02. Only if an
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`action agency makes a non-arbitrary “no effect” determination can the agency proceed without
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`consultation.
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`39.
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`If listed species or critical habitat may be present in the action area, the agency must
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`analyze the proposed action’s effects. It may do so by first engaging in “informal consultation”
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 13 of 31
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`with the Service(s). See 50 C.F.R. §§ 402.12, 402.13, 402.14(b)(1). If the agency concludes, in a
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`biological assessment, that the action is “not likely to adversely affect” listed species—and the
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`Service lawfully concurs in writing—then the consultation process is completed. Id. § 403.13(c).
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`Conversely, if the action is “likely to adversely affect” listed species, the agency must enter into
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`“formal consultation” with the Service(s), a more extensive and protective process to consider the
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`action’s impacts. Id. §§ 402.12(k), 402.14(a).
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`40.
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`Formal ESA consultation commences with the action agency’s written request for
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`consultation and concludes with the Services’ issuance of a “biological opinion.” Id. §§ 402.02;
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`402.14(c), (g)(4).
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`41.
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`The biological opinion is the heart of the formal consultation process and states the
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`Services’ opinion as to whether the effects of the action are “likely to jeopardize the continued
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`existence of listed species or result in the destruction or adverse modification of critical habitat.”
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`Id. § 402.14(g)(4), (h)(3); see 16 U.S.C. § 1536(a)(2), (b)(3)(A).
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`42.
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`If the Services determine that the action is likely to jeopardize a species, the
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`biological opinion must outline “reasonable and prudent alternatives” to the action, if any exist,
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`that will avoid jeopardy and “which [the agency] believes would not violate [Section 7(a)(2)].”
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`16 U.S.C. § 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). The Services must also provide “those
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`reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize
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`such impact. 16 U.S.C. § 1536(b)(4)(ii).
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`43.
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`The Services’ ESA
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`implementing
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`regulations anticipate “programmatic
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`consultation” for federal programs that may affect listed species, such as the adoption of water
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`quality criteria under the CWA. Programmatic consultation is defined as “a consultation
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`addressing an agency’s multiple actions on a program, region, or other basis” and allows the
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 14 of 31
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`Services to guide the implementation of such programs by establishing standards, guidelines, or
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`governing criteria to avoid, minimize, or offset the effects of the program on listed species and
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`critical habitat, and to establish protocols to track and respond to the collective impacts of actions
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`taken pursuant to the program. See 50 C.F.R. § 402.02; id. § 402.14(c)(4) (requiring Federal
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`agencies to consider “the effects of the action or actions as a whole”). The Services’ regulations
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`provide that for federal programs, programmatic consultations and project-specific consultations
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`work in tandem, with each playing a vital role in protecting imperiled species. See 84 Fed. Reg.
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`44,976, 44,997 (Aug. 27, 2019).
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`44.
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`Foregoing ESA Section 7 consultation on an agency action that may affect broad-
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`ranging, long-lived species, such as promulgation of national water quality criteria, in favor of
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`disjointed consultation on individual states’ adoption of water quality standards results in an
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`incomplete consideration of the action in a manner inconsistent with the ESA’s requirements.
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`The Clean Water Act
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`Overview
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`45.
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`Congress adopted the CWA in 1972 “to restore and maintain the chemical,
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`physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). The CWA prohibits
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`the discharge of pollutants to waters absent an authorization under the Act. 33 U.S.C. § 1311(a).
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`Authorizations to discharge pollutants from point sources to navigable waters are issued by EPA
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`or a state with an EPA-delegated permit program under the National Pollutant Discharge
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`Elimination System (NPDES). NPDES permits and, generally, other activities authorized by the
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`CWA must ensure that water quality standards are not violated. 33 U.S.C. § 1311(b)(1)(C).
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`46.
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`“Water quality standards are provisions of State or Federal law which consist of a
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`designated use or uses for the waters of the United States and water quality criteria for such waters
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`Complaint for Declaratory and Injunctive Relief
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`Case 4:22-cv-00138-JCH Document 1 Filed 03/22/22 Page 15 of 31
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`based upon such uses. Water quality standards are to protect the public health or welfare, enhance
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`the quality of water and serve the purposes of the Act.” 30 C.F.R. § 131(3)(i). “Such standards
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`serve the dual purposes of establishing the water quality goals for a specific water body and serve
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`as the regulatory basis for the establishment of water-quality-based treatment controls and
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`strategies beyond the technology-based levels of treatment” also required by the CWA. 40 C.F.R.
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`§ 131.2.
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`47. Water quality standards also serve as a target for CWA restoration activities such
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`as total maximum daily loads (TMDLs). CWA Section 303 requires states to identify waterbodies
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`that fail to attain water quality standards and TMDLs must be developed and implemented for
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`these waters. A TMDL represents the maximum amount of pollutant loading that a waterbody can
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`receive from all combined sources without exceeding applicable water quality standards,
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`sometimes described as the “pollution budget.” From this information, opportunities for reducing
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`excessive loads can be identified and implemented, individual contributions can be capped, and
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`additional loading prevented. TMDL-derived effluent limitations on pollutants of concern must be
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`included in NPDES permits. TMDLs are also a primary mechanism for development and
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`implementation of controls on non-point source pollution (unregulated by the pollutant discharge
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`permit system) under the CWA. In sum, water quality standards form a key legal basis for
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`controlling pollutants entering the waters of the United States. Because ensuring that waterbodies
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`are of sufficient quality to support designated aquatic life uses (e.g., fish and shellfish spawning
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`and rearing) is crucial to the protection of threatened and endangered aquatic species, water quality
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`standards ar