ELR Citation: 56 ELR 20023
No(s). 23-2946 (9th Cir. Mar 3, 2026)

The Ninth Circuit, 2-1, affirmed summary judgment for an environmental group in a challenge to EPA's promulgation of CWA §304(a) recommendations for cadmium. The group argued EPA failed to consult with FWS and NMFS before promulgating the recommendations, in violation of §7 of the ESA. A district court granted summary judgment for the group, finding EPA must comply with §7 because its publication of §304(a) recommendations was an "agency action" that "may affect" listed species or critical habitat. On appeal, EPA argued promulgation of §304(a) recommendations was not an agency action and had no effect on listed species or their critical habitat. The appellate court found that in researching, developing, and publishing nationwide recommendations for aquatic pollutant levels, which would foreseeably be adopted by many states, EPA carried out an "agency action" that "may affect" listed species, and thus required consultation under §7. It affirmed summary judgment for the group.