ELR Citation: 53 ELR 20127
No(s). 22-486 (BAH) (D.D.C. Aug 8, 2023) (Howell, J.)

A district court denied EPA's motion to dismiss a lawsuit challenging its failure to perform required ESA consultations with FWS and NMFS before approving the state of Washington's limits on aquatic cyanide in 1993, 1997, and 2007. An environmental group argued that EPA failed to complete ESA §7 consultations with the Services, and that its withdrawal in 2016 from an attempted national consultation scheme similarly breached its §7 responsibilities. The group also argued EPA failed to reinitiate consultations after designating and revising critical habitat potentially affected by Washington's cyanide criteria and the emergence of new information regarding the criteria's impact on the state's protected species and habitats. EPA moved to dismiss, arguing the group's first two claims were time-barred by the six-year statute of limitations, and that its other two claims failed to assert any ground for relief because the Agency wasn't required to reinitiate a consultation that was never completed. The court found the first two claims timely since §7 imposes an ongoing obligation to consult on agency actions that may jeopardize protected species and habitat, and found EPA's 2016 withdrawal constituted final agency action. As to the group's other claims, it found that the plain text of §7's implementing regulations require consultation to be reinitiated when certain conditions are met, regardless of whether one was previously completed. It denied EPA's motion to dismiss.