ELR Citation: 53 ELR 20139
No(s). CV-22-00138-TUC-JCH (D. Ariz. Aug 18, 2023) (Hinderaker, J.)

A district court granted in part summary judgment for an environmental group in a challenge to EPA's issuance of recommended water quality criteria for cadmium in 2016. The group argued EPA violated the ESA by failing to consult with expert agencies before issuing the recommended criteria. The Agency responded that the Act only required it to consult later, when states apply to adopt or modify the criteria. The court found issuing recommendations was an "action" that required consultation because the criteria (1) established a condition under which states must explain themselves, which directly or indirectly caused modifications to the water, and (2) influenced states directly and indirectly through the CWA's adopt-or-explain requirement. It vacated EPA's 2016 chronic freshwater cadmium criterion, which increased the maximum allowable concentration, and remanded its 2016 acute freshwater, chronic marine, and acute marine cadmium criteria, which lowered the maximum allowable concentration, for further proceedings.