Water

Endangered Species Act/Clean Water Act: Environmental groups challenge Washington state’s cyanide water quality standards Mitchell, Williams, Selig, Gates & Woodyard, PLLC

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The Western Environmental Law Center and Center for Biological Diversity (collectively, the “CBD”) filed a complaint with the U.S. District Court for the District of Columbia (the “Court”) against the U.S. Environmental Protection Agency (“EPA”) challenging its Cyanide Clean Water Act Water Quality Standards (“WQS”). ) approval.

Other federal defendants include:

  • U.S. Department of the Interior
  • NOAA
  • U.S. Fish and Wildlife Service
  • U.S. Department of Commerce

The complaint alleges a violation of the Endangered Species Act (“ESA”).

The WQS in question was developed by the Washington State Department of Ecology (“WDE”) under the Clean Water Act.

Under Section 303 of the Clean Water Act, states are required to develop WQS for each of their jurisdictional waters in the United States. This type of WQS includes the intended use and water quality standards that support the intended use.

The complaint alleges that cyanide, a toxic compound released into Washington state waterways through human activity, allegedly includes:

  • urban stormwater runoff
  • Industrial and Municipal Emissions
  • air pollution deposits
  • mining

CBD claims that WDE has used EPA-approved freshwater and marine cyanide water quality standards for decades. These organizations further argue that EPA has never consulted with the U.S. Fish and Wildlife Service (“FWS”) on the National Marine Fisheries Service (“NMFS”) (collectively, the “Services”) to ensure protection from cyanide hazards and adverse effects. As required by Section 7 of the Endangered Species Act (“ESA”).

EPA is accused of violating and continuing to violate Section 7 of the ESA by failing to ensure that the survival of ESA-listed species is not threatened. It was further argued that there is no assurance that critical habitats have not been damaged or altered by the WDE’s cyanide water quality standards.

The complaint mentions a number of species that have been designated as listed or threatened by ESA, which are said to be compromised by cyanide water quality standards. Alleged reductions in listed species affected by referenced state aquatic cyanide water quality standards. As a result, EPA and the service are said to be required to reopen negotiations to address the impact of water quality standards on listed species and their habitats.

The CBD asked the court to declare that the defendants’ alleged failure to consult and ensure the absence of dangerous and adverse modifications was arbitrary and capricious and violated the ESA and its implementing regulations. They further requested that defendants be ordered to initiate and complete a consultation on EPA’s approval of the WDE’s cyanide water quality standards.

A copy of the complaint can be downloaded here.

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