# Appendix — National Ass'n v. Defenders of Wildlife > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0293%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2007 - **Citation:** 551 U.S. 644 ## Text S 5. No. 06-340 SEP 6 - 2006 Jn The OF FICE OF THE CLERK Supreme Court of the Gnited States NATIONAL ASSOCIATION OF HOME BUILDERS, et al., Petitioners, VS. DEFENDERS OF WILDLIFE, et ai., Respondents. + On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit ° APPENDIX TO PETITION FOR WRIT OF CERTIORARI VOLUME II, PAGES 318 TO 623 e RUSSELL S. FRYE NORMAN D. JAMES FRYE LAW PLLC (Counsel of Record) 3050 K Street NW, FENNEMORE CRAIG, P.C. Suite 400 3003 North Central Avenue, Washington, DC 20007-5108 Suite 2600 (202) 342-8878 Phoenix, AZ 85012-2913 (602) 916-5346 DUANE J. DESIDERIO THOMAS J. WARD NATIONAL ASSOCIATION OF HOME BUILDERS 1201 15th Street, NW Washington, DC 20005-2800 (202) 266-8200 —4 COCKLE LAW BRIEF PRINTING CO (800) 225 6964 OR CALL COLLECT (402) 342-2831 APPENDIX TABLE OF CONTENTS App. VOLUME I OPINION SOUGHT TO BE REVIEWED Defenders of Wildlife v. U.S. Environmental Protection Agency, 420 F.3d 946 (9th Cir. August 22, 2005)........ 1-68 ORDER ON REHEARING Defenders of Wildlife v. U.S. Environmental Protection Agency, 450 F.3d 394 (9th Cir. June 8, 2006)...... 134-158 AGENCY DECISIONS REVIEWED ON APPEAL Approval of Application by Arizona to Administer the National Pollutant Discharge Elimination System (NPDES) Program; Arizona, 67 Fed. Reg. 79,629 (December 30, 2002) 20.0.0... ccceesseeeteteeeeeeeeees 69-76 United States Department of the Interior, U.S. Fish and Wildlife Service, Arizona Ecological Services Field Office Biological Opinion (December 3, ITT ical capes hiletiedenisiinahnieitasiianiinadielbianetbe 77-124 Order, United States District Court, District of I Et Bn CD eeetecceinistnccnincctsninctinmnnniin 125-133 STATUTES I IN TIT seis us dciesietdinpiensiansitnnsaanstiabiniods 182-183 A SIT cnidictsicctesinnstnioaninniiseipeantiniouniiedaien 184-202 Ey II IT oo neichinrsinatinioninembenddnisdgtnn 159-162 a I I nin sndninieipcentintenniaiddiiciiniiel 162 SS mien 163-181 il APPENDIX TABLE OF CONTENTS - Continued App. REGULATIONS 7 a Bi ciiitcrnsenisnccccnsesenssnsntntitinenniines 203-206 4B S}.BR. Bartha BBDBL........cccceceecscsccsscsscscsscesesscseses 206-207 Ce, Bie Fi cicnccntntccsticnesnenicnsssiocsensnnias 207-210 Pek s BO 8 eee 210 Pood s Bf eee 211-215 GD O.TE,. Beatles BBBAG. ...ccccccncresseccsscesscssescosssccocsees 215-221 GO GPT. Bartlet BIB .cccccccccsccsesscccccerssscescnsonccsscees 221-223 50 C.ER. Section 402.01........s:sssssssiesssssssseeeeceeeesee 223-225 GO O.PR, Bertie GOBGB..ncccvercevesccersesesesesscssscssseseees 225-229 GO C.BR. Boatiow SGB.GB.....00cccsccessesessccrscossccsccssssesosssesveses 230 BO C.WR,. Boctiows $08. 2B.....0.ccccccesescescsescsscessscscsesseees 230-235 50 C.FR. Section 402.14........ccscsssssssssscssssessssssnneeeen 235-243 BO C.WR. Bastiat SGB.IG....0.covcescscscoscecccssessccscvsssscosces 243-244 FEDERAL REGISTER Memorandim of Agreement Between the Environ- mental Protection Agency, Fish and Wildlife Service and National Marine Fisheries Service Regarding Enhanced Coordination Under the Clean Water Act and Endangered Species Act; Notice, 66 Fed. Reg. 11,202 (February 22, 2001) ........:::cccccseseeceeseeeenenees 245-317 ill APPENDIX TABLE OF CONTENTS - Continued App. . VOLUME II Interagency Cooperation - Endangered Species Act_ of 1973, as Amended; Final Rule, 51 Fed. Reg. NY I HII sustincescccdosipcslniousendatinnceictiaiionsneiniien 318-480 Application to Administer the National Pollutant Discharge Elimination System (NPDES) Pro- gram; Arizona, 67 Fed. Reg. 49,916 (August 1, II aout scecsibtatiatlaielscelcidiniadieisiiinindinhidaiaasiondiantiieunmeens 543-561 LEGISLATIVE HISTORY Endangered Species Act of 1973, Pub. L. No. 93-205, NE Ts ichiishiiniiiinicctsaciponeicanencsiiinnndonneiniie 481-483 H.R. Conf. Rep. No. 95-1804 (1978) ..........cceeeeseees 484-487 H.R. Rep. No. 95-1625 (1978)..............cccsssessssecesseess 488-497 Be Si es ee CD rctitisttenctevercusscasscosnssenscccins 498-507 H.R. Conf. Rep. No. 96-697 (1979) ..........:cccceseeeeees 508-517 BEER, Baw. Bee. OF-BG7 (1GGE)..ccccecnssesocecscessccsssesessioses 518-528 S. Rep. No. 97-418 (1982)............... sdahadasiadiiaaibaechissiaiiien 529-542 MISCELLANEOUS PORTIONS OF RECORD Biological Evaluation for Endangered Species Act Consultation on USEPA’s Proposed Approval of the State of Arizona’s NPDES Program and Transmittal Letter (June 21, 2002)................0..... 583-623 U.S. EPA and U.S. Fish and Wildlife Service/DOI Interagency Elevation Document (October 4, EEE SER el ee ee er 562-582 App. 318 FEDERAL REGISTER 51 Fed. Reg. 19,926 (June 3, 1986) DEPARTMENT OF THE INTERIOR Fish and Wildlife Service DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 402 Interagency Cooperation - Endangered Species Act of 1973, as Amended; Final Rule AGENCIES: Fish and Wildlife Service, Interior; National Marine Fisheries Service, National Oceanic and Atmos- pheric Administration, Commerce. ACTION: Final rule. - SUMMARY: This final rulemaking establishes the procedural regulations governing interagency cooperation under section 7 of the Endangered Species Act of 1973, as amended (the “Act”). The Act requires Federal agencies, in consultation with and with the assistance of the Secretar- ies of the Interior and Commerce, to insure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of the critical habitat of such species. The Endangered Species Act Amendments of 1978, 1979, and 1982 (the “Amendments”) changed the consultation requirements of section 7. This final rulemak- ing amends the existing rules governing section 7 consul- tation by implementing the changes required by the App. 319 Amendments and by incorporating other procedural changes designed to improve interagency cooperation. EFFECTIVE DATE: July 3, 1986. FOR FURTHER INFORMATION CONTACT: Marvin E. Moriarty, Acting Chief, Office of Endangered Species, U.S. Fish and Wildlife Service, Department of the Interior, Washington, D.C. 20240 (703-235-2771); or Charles Karnella, Protected Species Division, Office of Protected Species and Habitat Conservation, National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Department of Commerce, Washington, D.C. 20235 (202-634-7461). SUPPLEMENTARY INFORMATION: Background On January 4, 1978, the Department of the Interior, through the United States Fish and Wildlife Service (FWS), and the Department of Commerce, through the National Marine Fisheries Service (NMFS), established procedures for the Act’s consultation process by imple- menting the interagency cooperation requirements of section 7 (50 CFR Part 402, “1978 rule”). The consultation process is designed to assist Federal agencies in complying with the requirements of section 7 and provides such agencies with advice and guidance from the Secretary on whether an action complies with the substantive require- ments of section 7. The Secretaries of the Interior and Commerce (the “Secretary”) share responsibilities for conducting consulta- tions pursuant to section 7 of the Act. Generally, marine species are under the jurisdiction of the Secretary of App. 320 Commerce and all other species are under the jurisdiction of the Secretary of the Interior. Authority to conduct consultations has been delegated by the Secretary of the Interior to the Director of the FWS and by the Secretary of Commerce to the Assistant Administrator for Fisheries, NMFS, National Oceanic and Atmospheric Administra- tion. Section 7(a)(1) of the Act authorizes Federal agencies, in consultation with and with the assistance of the Secre- tary of the Interior or Commerce, depending on the species involved, to utilize their resources in furtherance of the purposes of the Act by carrying out programs for the conservation of endangered species and threatened species (“listed species”) listed pursuant to section 4 of the Act. Section 7(a)(2) of the Act requires Federal agencies, in consultation with and with the assistance of the Secretary, to insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any listed species or result in the destruction or adverse modification of habitat of such species which has been designated as critical (“critical habitat”). Al- though Federal agency authority and responsibility under section 7 have remained virtually intact from the 1973 Act, the Amendments made significant procedural changes in the section 7 consultation procedures. The 1978 Amendments formalized the process for the issuance of the Secretary's opinion (“biological opinions”), and required that the opinion include “reasonable and prudent alternatives” in cases where the proposed Federal action, in the opinion of the Secretary, would jeopardize the continued existence of a listed species or result in the destruction or adverse modification of its critical habitat. App. 321 The 1978 Amendments also added section 7(c), requiring the preparation of biological assessments in appropriate instances. [Section 7(d) of the Act, also added by the 1978 Amendments, prohibits a Federal agency or any involved permit or license applicant, after initiation of consultation, from making an irreversible or irretrievable commitment of resources which would foreclose the adoption of any reasonable and prudent alternatives. Perhaps the most significant part of the 1978 Amend- ments was the creation of the Endangered Species Com- mittee, which is authorized to grant exemptions from the requirements of section 7(a)(2) in appropriate cases. Regulations governing the submission of exemption applications and consideration of such applications by the Endangered Species Committee are presently codified at 50 CFR Parts 450-453. Although this final rule on consul- tation procedures does not deal directly with exemptions, good faith adherence to the consultation requirements of section 7 is a statutory prerequisite for entry into the exemption process. The 1979 Amendments slightly altered the Federal agency’s substantive obligation under section 7(a)(2) from insuring that its action “does not jeopardize” listed species or adversely modify the critical habitat of such species to insuring that its action “is not likely to jeopardize” such species or critical habitat. Congress expressly provided that the consultation and resultant biological opinion be based upon the “best scientific and commercial data available.” These changes made the consultation process more flexible and established a reasonable information standard to be followed by the NMFS and FWS (the “Service”) and other Federal agencies. The 1979 Amend- ments added a requirement that all Federal agencies App. 322 confer with the Secretary on all actions that are likely to jeopardize the cor:tinued existence of proposed species or result in the destruction or adverse modification of pro- posed critical habitat. The 1982 Amendments also established several new processes under section 7. First, a new subsection 7(b)(4) allows for the issuance of an “incidental take statement” along with a biological opinion. This “incidental take statement” operates to exempt the Federal agency and any permit or license applicant involved from the section 9 “taking” prohibitions under the Act if the subsequent implementation of the action is consistent with the terms and conditions of the incidental take statement. Second, the 1982 Amendments provide an opportunity for permit or license applicant involvement in ail phases of the consultation procedures. A prospective permit or license applicant may request Federal agencies to initiate consultation in advance of filing for any needed license or permit, if they have reason to believe that their proposed actions may affect listed species or critical habitat. This new provision, under section 7(a)(3), for “early consulta- tion” allows a prospective applicant the opportunity to discover, and attempt to resolve, potential endangered or threatened species conflicts early in the planning stage of the proposed action — a time at which alterations in project plans could involve much less expense and delay. Further involvement of the applicant in the consulta- tion procedures is provided by the requirement that the applicant be involved in time extensions. Congress amended section 7(c) to require the Federal agency to give written notice to the applicant explaining why any exten- sion of the biological assessment deadline is needed. If App. 323 formal consultation under section 7(a)(2) is extended by the Service and the Federal agency for up to 60 days, the Service must provide the applicant with a written expla- nation of the reasons for extension. Any extension past 60 days must be approved by the applicant. Clearly, the permit or license applicant plays an active role in the consultation process. The final rule recognizes this in- creased role of the applicant while retaining the require- ment that formal communications flow between the Federal agency and the Service during the consultation process. In order to implement these Amendments to section 7 and to otherwise improve the interagency cooperation process, the Service published a proposed rule on June 29, 1983 (48 FR 29990-30004). Although the Service originally specified a 60-day comment period for these revised section 7 regulations, the comment period was extended until September 30, 1983. The Service received approxi- mately 70 comments from other Federal agencies, State governmental agencies, private organizations, and other individuals and entities on the proposed rule. After careful consideration of these comments, the Service has modified the regulations to clarify the consul- tation process and to improve the overall organization of the regulations. These technical changes are more fully explained in the section-by-section analysis below and were made to accommodate concerns raised in the public comments. General Comments The majority of the comments received on the pro- posed rule focused on particular regulatory provisions or App. 324 concepts. These specific comments are discussed in the section-by-section analysis. However, several commenters expressed general concerns with the proposed rule or addressed matters that went beyond the scope of the proposal. These general comments ranged from praise for the comprehensiveness of the proposal to criticism for the proposal’s alleged failure to require the level of analysis and protection mandated by the Act. The Service believes that this final rule properly and accurately implements the Amendments to the Act and affords the protection mandated by section 7. The House of Representatives Committee on Mer- chant Marine and Fisheries (“House Committee”), which oversees the implementation of the Act, submitted com- ments on the proposed rule. The Committee commended the Service in its efforts to translate complex legislation into agency policy and noted specific areas that it nelieved did not conform to the legislative intent. These matters have been clarified in the final rule. One commenter was concerned that the proposed rule confused the informal (nonmandatory) consultation components with the formal (required) components of the consultation process. To clarify this matter, the Service has distinguished optional procedures from required proce- dures in the final rule. For example, the conference proce- dures (§ 402.10) are required for Federal actions that are likely to jeopardize proposed species or proposed critical habitat and the formal consultation procedures (§ 402.14) are required for actions that may affect listed species or critical habitat. Additionally, biological assessments (§ 402.12) are required for “major construction activities.” App. 325 Early « nsultation (§ 402.11) and informal consultation (§ 402.13) are optional procedures and are clearly desig- nated as such in the final rule. Concerned about increased paperwork burdens and potential time commitments resulting from the proposal, one commenter complained that the proposed rule is burdensome, unnecessary, and unacceptable. The com- menter noted that additional protection for listed species or their habitat would not result from these alleged increases in administrative burdens, and it urged that currently used processes be maintained. The Service emphasizes that the proposal was not intended to increase in any way the paperwork burden of Federal agencies or any other participant in the consultation process. More- over, the purpose of the proposal was to implement the Amendments to the Act in such a way as to streamline the consultation process while maintaining the protections afforded species under section 7. The concern of the commenter has been addressed to the extent possible by the Service’s effort to clarify the consultation process in this final rule. Because section 7 imposes certain require- ments on Federal agencies, any burdens recognized in this final rule are a creature of statutory law as implemented by these regulations. Two commenters asserted that the Act protects habi- tat only when it is designated as the critical habitat of a listed species and, therefore, the Service must identify areas of critical habitat for all listed species to assure adequate protection. It is true that the Service has not designated critical habitat for all listed species. The Service has consistently taken the position that it is not prudent to designate critical habitat for a species if to do so would increase the risk that the species might be taken App. 326 or would otherwise not benefit the species. See 50 CFR 424.12(a). However, the commenters ignore the fact that section 7 protections attach to both designated éritical habitat and to each individual of a listed species within the jurisdiction of the United States or on the high seas. An action could jeopardize the continued existence of a listed species through the destruction or adverse modifica- tion of its habitat, regardless of whether that habitat has been designated as “critical habitat.” Thus, the failure of the Service to designate critical habitat for a given species does not automatically mean that its habitat is without protection. Two States commented that Federal agencies charged with implementing the Act should recognize and cooperate with the States in resolving water resource issues within the context of section 7. Consistent with the Department’s “good neighbor” policy, one commenter encouraged the Service to actively include affected States in any consulta- tion process. The Service intends to cooperate with all State and local agencies to resolve water resource issues consistent with the requirements of the Act. The Service stands ready to receive any and all comments, data, or other input from any affected States that are interested in a particular section 7 consultation. However, consultation takes place between the Service, the Federal agency and, where applicable, a Federal permit or license applicant. Several commenters stated that the proposal goes beyond the scope of the Act, thereby placing unjustifiable burdens on applicants and Federal agencies. They claimed that the rules would usurp Federal agency authority. One commenter questioned the ultimate authority of the Service to issue binding procedural regulations under section 7. In no way does the Service intend to use the App. 327 consultation procedures of section 7 to establish substan- tive policy for Federal agencies. The Service performs strictly an advisory function-under section 7 by consulting with other Federal agencies to identify and help resolve conflicts between listed species and their critical habitat and proposed actions. As part of its role, the Service issues biological opinions to assist the Federal agencies in con- forming their proposed actions to the requirements of section 7. However, the Federal agency makes the ulti- mate decision as to whether its proposed action will satisfy the requirements of section 7(a)(2). The Service recognizes that the Federal agency has the primary responsibility for implementing section 7’s substantive command, and. the final rule does not usurp that function. The Service is satisfied that the final rule is within the scope of the authority provided in the Act. Moreover, the Service is responsible for interpreting section 7 and for establishing a consultation process that is both uniform and consistent with statutory require- ments. This issue was addressed in the preamble to the 1978 rule: The FWS and NMFS are authorized under the Act to issue such regulations as they deem appropriate for the conservation of listed species. The two Services believe that these procedural regulations promote the conservation of listed species by imple- menting a uniform general framework as the starting point for consultation. Once the mandatory consultation has taken place, however, the ultimate responsibility for determining agency action in light of section 7 still rests with the particular Federal agency that was engaged in consultation. In this fashion, a standardized consultation process is established which preserves App. 328 ultimate agency administrative control over its activities or programs. 43 FR 870, 871 (Jan. 4, 1978). These procedural regula- tions do not dictate results but prescribe a process by which the Service will consult in keeping with the Act. Several commenters stated that Congress did not intend that the Service interpret or implement section 7, and believed that the Service should recast the regulations as “nonbinding guidelines” that would govern only the Service’s role in consultation. The Service notes that Congress reviewed with approval the section 7 regulations issued on January 4, 1978, when deliberating over the 1978 Amendments to the Act. See H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. 18 (1978). Also, the Service was urged by the House Committee, through its comments on the proposed rule, to press forward with the issuance of this final rule. The Service is satisfied that it has ample authority and legislative mandate to issue this rule, and believes that uniform consultation standards and proce- dures are necessary to meet its obligations under section 7. However, the Service is aware that some Federal pro- grams may require a modified consultation process, and therefore the Service has provided for the issuance of counterpart regulations under § 402.04. Several general comments were received regarding programmatic adjustments and coordination. One com- menter suggested that the Service maintain cumulative summaries of consultation activities in the Washington Office. The Service maintains copies of all biological opinions and monitors the issuance of biological opinions in an effort to ensure consistency and accuracy of findings. The Service submits that current review mechanisms are App. 329 adequate and that, although the maintenance of cumula- tive consultation summaries might be useful, the in- creased costs are not justified. Another commenter urged increased public participa- tion in the consultation process, including: (1) Public notice of each request for consultation; (2) public notice of the agenda for each consultation; (3) public notice of consultation results; (4) public comment periods; and, (5) prescribed rights to appeal by the public. Nothing in section 7 authorizes or requires the Service to provide for public involvement (other than that of the applicant) in the “interagency” consultation process. Moreover, due to the statutory time constraints imposed on the consultation procedures, it would not be practicable to implement such detailed public participation measures. Public participa- tion may be provided within the Federal agency’s deci- sionmaking process. However, that is a function of the agency’s regulations or substantive legislation and not an issue to be raised in the context of consultation. Finally, several questions were raised as to what rules will apply to pending consultations once the final rule becomes effective. The Service does not anticipate any dramatic change in procedure or additional burdens on Federal agencies because the statutory changes to section 7 have been in effect throughout the development of the final rule. When this rule becomes effective, all pending and future consultations must comply with the require- ments of these regulations. The Service will cooperate with the Federal agencies and any applicants to ensure that there are no undue delays in ongoing consultations. App. 330 Section-by-Section Analysis The following portion of the preamble explains the final rule, covering the substantive issues of each section, noteworthy modifications from the proposed rule, signifi- cant changes from the 1978 rule, and responses to public comments. To assist the reader, Table 1 presents a citation to each subsection of the proposed rule with appropriate cross-references to the location of that provision in the final rule and in the 1978 rule. TABLE 1. - CroSS-REPERENCE OF SECTION 7 REGULATORY PROVISIONS: PROPOSAL — Final — 1978 RULE Proposal Final 1978 Rule CC ETE ae §402.01 CC CC $402.02 Definitions " mieaeeie Ee (none) - “Action” spun CC ~ “Actuviuies or programs” yee “Action area”... cima (none) i ichisnetligaibeednnsncien Rinna | | OD So: : al = > — > ma ip ig Ls os - ‘ff _ S 7 oe yal teen b ~ ra | eee seen $402. 13%a), 402.14(b) |$402.04a) --—{d). TS | (a), (c), (d) e) -e) -e), (f)