Key Points

  • Section 7 ESA consultation applies to EPA's nonbinding CWA Section 304(a) water-quality recommendations because they constitute 'agency action' that may affect listed species.
  • Environmental plaintiffs can establish standing by showing state adoption of federal recommendations is a predictable consequence of the EPA's guidance.
  • The dissent argued that standing requires a showing of determinative or coercive effect on third-party states and that mere persuasiveness of agency recommendations is insufficient.

The U.S. Court of Appeals for the Ninth Circuit on March 3, 2026, affirmed a district court's summary judgment in favor of the Center for Biological Diversity, holding that the U.S. Environmental Protection Agency must consult with the Fish and Wildlife Service and National Marine Fisheries Service before promulgating nonbinding water-quality recommendations under Section 304(a) of the Clean Water Act.

Writing for the majority, Judge Richard A. Paez concluded that the EPA's 2016 updated recommendations for cadmium constituted an 'agency action' under Section 7 of the Endangered Species Act because the recommendations 'may affect' listed species. The court rejected the EPA's argument that only binding permitting decisions trigger the consultation duty.

'In researching, developing, and publishing nationwide recommendations for aquatic pollutant levels, which would foreseeably be adopted wholesale by many States, EPA carried out an "agency action" which "may affect" listed species, requiring consultation with the Services under Section 7,' Judge Paez wrote.

The ruling extends Section 7 consultation requirements to advisory agency guidance. The panel found that although the EPA's Section 304(a) recommendations are nonbinding, they effectively operate as defaults that states must justify departing from under EPA regulations. The court noted that nearly every state has adopted some version of the EPA's cadmium recommendations, and several states have laws mandating or incentivizing adoption of the federal criteria.

The majority also held that the Center for Biological Diversity had Article III standing. Even though the harm to listed species depends on states adopting the EPA's recommendations, the panel found that states' behavior is controlled and predicted by the EPA's Section 304(a) recommendations. The court relied on evidence that consultation would likely produce stricter recommendations and that states predictably adopt the EPA's criteria.

In dissent, Judge Eric D. Miller argued that the Center for Biological Diversity lacked standing because the EPA does not exert a 'determinative or coercive effect' on states' water-quality decisions. 'It follows that CBD's injury, which occurs only to the extent that States adopt the section 304 recommendation levels, is not fairly traceable to EPA,' Judge Miller wrote.

The case arose after the EPA updated its recommended aquatic life criteria for cadmium in 2016 without consulting the Services. The new recommendations relaxed the chronic freshwater criterion for cadmium, tripling the allowable concentration from the 2001 level. The National Marine Fisheries Service had criticized the EPA's 'piecemeal' approach to consultation during the notice-and-comment period.

The district court vacated the chronic freshwater cadmium recommendation and remanded all four 2016 cadmium recommendations for consultation. Upon vacatur, the more stringent 2001 criterion took effect. The Ninth Circuit affirmed, rejecting the EPA's argument that the holding would 'open the floodgates' to challenges of nonbinding guidance.

Judge Paez wrote that the 'may affect' standard provides a limiting principle. 'Some agency activities may be too insubstantial to be carried out in any meaningful sense,' he said, but the EPA's nationwide recommendations are not such a case.