Amicus Curiae Brief — National Ass'n v. Defenders of Wildlife

Nos. 06-340. 06-549

IN THE

Supreme Court of the United States

NATIONAL ASSOCIATION OF HOME BUILDERS, ef al.,

Petitioners.

V

DEFENDERS OF WILDLIFE, ev al.

Respondents.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

Petitioner.

1:

DEFENDERS OF WILDLIFE, er al,

Respondents

Ow PETITIONS FOR Writ OF CERTIORARI TO THE

LAtTeD STATES Court OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF 4MICUS CURIAE FOR THE FEDERAL WATER

QUALITY COALITION IN SUPPORT OF PETITIONS FOR

WRIT OF CERTIORARI

Daxter P. ALBERS

Counsel of Record

Frepric P. ANDES

Davip T. Bait arp

Barnes & THORNBURG

One North Wacker Drive

Surte $400)

Chicavo, Hhnois 60606

(3) 2) 387-)313

,

Cowtsel for the Federal Water

Quality Coulton

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............

STATEMENT OF INTEREST OF AMICUS

SEE Une Nok bb eb cunubseSneenrsiutisnwkes

REASONS FOR GRANTING THE PETITION ...

SUMMARY OF ARGUMENT .................

{. The Ninth Circuit Decision Substantially And

Adversely Affects-The Well-Established

NPDES Program In Conflict With The CWA

Language And Legislative Intent..........

A. Statutory framework of the NPDES

Ph cichdpaseevndeackesessens

B. The Ninth Circuit decision undermines

the NPDES program framework

envisioned by Congress. ............

Il. The Ninth Circuit Decision Impermissibly

Shifts Authority To The ESA Services For An

Assessment Of Agency Action. ..........

ED 666 b eda vusadieswewecessenaus

Page

14

19

i

TABLE OF CITED AUTHORITIES

Page

Cases:

American Forest & Paper Ass'n v. EPA, 137 F.3d 291

rn Ce (estiventascetecedesteasuwes 4

Defenders of Wildlife v. EPA, 420 F.3d 946 (9 Cir.

DD ot sadadundetsksincdeuser bake baceaese 3,5

Defenders of Wildlife v. EPA, 450 F.3d 394 (9" Cir.

DD, candy deenandn sense keeende inane 7, 16

International Paper Co. v. Ouellette, 479 U.S. 481

SE Ch Nsdndhens ddewtrnnesabssbueeeneness 8, 11

Morton v. Mancari, 417 U.S. 535 (1974) ........ 18

Platte River Whooping Crane Critical Habitat Maint.

Trust v. FERC, 962 F.2d 27 (D.C. Cir. 1992) ... 4

South Florida Mgmt. Dist. v. Miccosukee Tribe of

Heeaas, SEE Uw. Fa CRO ccc cc ccccccccccs 8

United States v. Borden Co., 308 U.S. 188 (1939) ... 18

Statutes:

a ee bee passim

le Or ov oak 6vnc vende deneenenes 14

I 2 7

ss ED 6 Rceeseneteseedesvennanes 5. Hl

ili

Cited Authorities

Page

ee es 6-66-46. 6 646 NS 6 ined dase cesens 7

33 U.S.C. 4 PPPRCT Eee eT eee TTT ere 7,9, 13, 15

Pe CUED. an secebcdsisserwccceseune passim

Se Ga BH COT EPED cccccccccssccccvcees 5,8

PIL II os au rsanuaysdecusunes 6, 8, 10

BP as BSN Kec ccccncedsccceecceces 8

ol er eer 8,9

42 U.S.C. DE csiscundentbawkeeueseaaes 16

Cs ED 600s sb neccccessdoctuceoes 16

Se NC PEED 2b k.c 05.050 cabsnnceodeaseuets 16

Se es et ED hv becdweecduesedecedeus 16-17

Oe Ss OP EEE dak veedeccccddewesecba 17

Ce es OS PEED. Sac kesbcbacnesecceduas 17

ee Ses OS PEED ona Rasa o0eneedes cine 17

ee Ss Ee PEERED 6 ccc cectescwevessecens 17

iv

Cited Authorities

Page

Other Authorities:

Bills Amending the Federal Water Pollution Control

Act and other Pending Legislation Relating to

Water Pollution Control, Hearings before the S.

Subcomm. on Air and Water Pollution of the Comm.

on Public Works, 92nd Cong. 4356 (1971) ..... 11, 12

Robert V. Percival, Symposium: Environmental

Federalism: Historical Roots and Contemporary

Models, 54 Mb. L. Rev. 1141 (1995) .......... 11

S.COMM. ON Pustic Works, FEDERAL WATER POLLUTION

Controt Act AMENDMENTS OF 1972, S. Rep. No.

I ee et ea er 11

BRIEF OF AMICUS CURIAE FOR THE FEDERAL

WATER QUALITY COALITION IN SUPPORT OF

PETITIONS FOR WRIT OF CERTIORARI

STATEMENT OF INTEREST OF AMICUS CURIAE '

The Federal Water Quality Coalition (the “Coalition’)

is a group of industrial companies, municipal entities,

agricultural parties, and trade associations that are directly

affected, or which have members that are directly affected,

by regulatory decisions made under the federal Clean Water

Act (the “CWA”) (33 U.S.C. § 1251, et seq.).? Coalition

member entities or their members own and operate facilities

located on or near waters of the United States. These entities

Operate pursuant to individual or general National Pollution

Discharge Elimination System (“NPDES”) wastewater or

stormwater permits, which were issued by EPA or, if EPA

1. Pursuant to Rule 37.6 of the Rules of the Court, the Federal

Water Quality Coalition states that no counsel for a party has written

this brief in whole or in part and that no person or entity, other than

the Coalition, its members, or its counsel, have made a monetary

contribution to the preparation or submission of this brief.

2. Consent by all of the parties has been given to the Coalition

for filing this brief. Petitioners National Association of Home

Builders, Southern Arizona Home Builders Association, Home

Builders Association of Central Arizona, Arizona Chamber of

Commerce, Arizona Mining Association, Arizona Association of

Industrics, Greater Phoenix Chamber of Commerce, and American

Forest & Paper Association; Respondents Defenders of Wildlife,

Center for Biological Diversity, and Craig Miller; and the State of

Arizona have submitted Ictters to the Court consenting to the filing

of all amicus curiae briefs in this matter. The United States

Environmental Protection Agency (“EPA”), who has separately filed

a Petition for writ of certiorari in this matter, has provided written

consent to the Coalition to file this brief. The Coalition submitted

EPA’s consent letter to the Court concurrent with its filing of this

brief.

2

has transferred permitting authority pursuant to section 402(b)

of the CWA (33 U.S.C. § 1342(b) (CWA § 402(b)”)), by state

water quality agencies.

The Ninth Circuit decision interpreted section 7(a)(2) of

the federal Endangered Species Act (16 U.S.C. § 1536(a)(2)

(“ESA § 7(a)(2)”)), as imposing an additional requirement on

CWA § 402(b) transfer decisions that is not contained in the

CWA. This new requirement would directly affect the

administration of the NPDES permitting program as it is applied

to Coalition members. The facilities of Coalition members are

now regulated by 45 state-administered NPDES programs.’ If

broadly adopted and applied, the Ninth Circuit decision, in direct

conflict with the plain language and legislat.ve intent of the

CWA and decisions of other federal circuits, would now require

those state-administered programs to comply with ESA § 7(a)(2),

even though that statute’s scope is expressly limited to federal

agency actions. As a result, states may be required to develop

burdensome procedures to consult with the United States Fish

and Wildlife Service and the National Marine Fisheries Service

(collectively, the “ESA Services”) to insure that the issuance of

NPDES permits are not likely to jeopardize the existence of

endangered species in compliance with ESA § 7(a)(2).

Implementation of such procedures would significantly delay

State issuance of NPDES permits, and would lead to more

burdensome permits for the regulated community, including

Coalition members. If a state cannot demonstrate to EPA that

its administration of its NPDES program complies with ESA

§ 7(a)(2), EPA could be forced to withdraw its approval of the

NPDES program and resume authority for issuing that state’s

wastewater and stormwater discharge permits. Because the

responsibility for administering as many as 45 state NPDES

programs could revert to EPA, the permitting process would

potentially drain EPA’s resources and drastically hamper the

3. The State of Alaska has indicated that it is developing an

application for the transfer of NPDES permitting authority.

3

regulated community’s ability to obtain timely discharge permits.

In either case—whether permitting authority remains with the

States or reverts to EPA—regulated entities, including Coalition

members, will be adversely affected. Therefore, the Coalition

and its members have an interest in maintaining the current,

well-established NPDES program, which will be undermined

by the Ninth Circuit decision.

REASONS FOR GRANTING THE PETITION

SUMMARY OF ARGUMENT

The Ninth Circuit decision imposes an additional

requirement on the implementation of the NPDES program

that is not contained in CWA § 402(b); in fact, that new

requirement directly conflicts with the language and

legislative intent of the CWA. The Ninth Circuit ruled that

pursuant to ESA § 7(a)(2), EPA must insure that any action

to transfer NPDES permitting authority to a state under CWA

§ 402(b) is not likely to jeopardize the continued existence

of any endangered species. Defenders of Wildlife v. EPA, 420

F.3d 946, 967 (9" Cir. 2005). The Ninth Circuit held that

EPA failed to comply with ESA § 7(a)(2) in transferring

NPDES permitting authority to the State of Arizona, as

evidenced, according to the court, by the mere fact that

Arizona, as a stale agency, is not required to comply with

the consultation requirement of ESA § 7(a)(2). Id. at 971.

Based on that holding, the Ninth Circuit vacated EPA’s

transfer approval, despite the fact that the plain language of

CWA § 402(b) mandates that EPA “shall approve” the transfer

of permitting authority. /d. at 979.4

4. The Ninth Circuit specifically held that “the EPA’s transfer

decision will cause whatever harm may flow from the loss of section

7 consultation on the many projects subject to a water pollution

permit, and that harm constitutes an indirect effect of the transfer.”

Defenders of Wildlife. 420 F.3d at 971 (emphasis in original).

4

The Petitions for writ of certiorari should be granted

for three reasons. First, the Ninth Circuit decision directly

conflicts with opinions from two other circuits: American

Forest & Paper Ass'n v. EPA, 137 F.3d 291 (S" Cir. 1998)

and Platte River Whooping Crane Critical Habitat Maint.

Trust v. FERC, 962 F.2d 27 (D.C. Cir. 1992)! Indeed, the

Ninth Circuit acknowledged the conflict between its decision

and the decisions from the Courts of Appeals for the Fifth

and District of Columbia Circuits. Defenders of Wildlife, 420

F.3d at 970. This conflict has been raised in all of the Petitions

5. In American Forest, the Fifth Circuit considered the exact

question that was presented to the Ninth Circuit. See 137 F.3d at

297 (“The key question is whether EPA may deny a state’s proposed

program based on a criterion — the protection of endangered species

— that is not enumerated in § 402(b).”) Unlike the Ninth Circuit,

the Fifth Circuit found that:

[t}]here is no hint that Congress intended to grant EPA

authority to erect additional hurdles to the permitting

process beyond those expressly noted in § 402(b).. ..

The statute’s plain language directs EPA to approve

proposed state programs that meet the enumerated

criteria; particularly in light of the command ‘shall

approve,’ [the CWA] cannot be construed to allow EPA

to expand the list of permitting requirements.

Id. at 298.

The Ninth Circuit decision also conflicts with the District of

Columbia Circuit’s decision in Platte River. In that case, the

petitioners asserted that section 7 of the ESA required the Federal

Energy Regulatory Commission to impose endangered species-

related provisions in a hydropower project license that already

protected endangered species. The District of Columbia Circuit

disagreed, stating “[wJe think the Trust's interpretation of the ESA

is far-fetched. As the Commission cxplained, the statute directs

agencies to ‘utilize their authorities’ to carry out the ESA’s objectives;

it docs not expand the powers conferred on an agency by its enabling

act.” /d. at 34 (emphasis in original). .

5

for writ of certiorari, and the uncertainty created by the circuit

conflict will have an adverse impact on the regulated community.

For this reason alone, the Petitions should be granted.

Second, the issue decided by the Ninth Circuit involves a

federal issue of significant importance. The Ninth Circuit

decision essentially writes a new requirement into CWA

§ 402(b), contrary to the plain language of that statute. The

Statute imposes a mandatory duty on EPA to transfer authority

to the states if nine specifically enumerated requirements are

met.° The Ninth Circuit decision will allow ESA § 7(a)(2) to

override this mandatory agency action. This concern has also

been raised by all of the Petitioners and provides an

independently sufficient reason for granting the Petitions.

In addition to the adequate reasons raised by the Petitioners,

the Petitions for writ of certiorari should be granted because of

the broad adverse effect the Ninth Circuit decision will have on

EPA, state agencies, and the entities they regulate, including

Coalition members, without any indication from Congress that

such an impact is warranted. The legislative intent behind the

NPDES program, as well as the CWA generally, is to allow the

states to take a primary role in the regulation of pollutant

discharges to their waters. 33 U.S.C. § 1251(b). The Ninth

Circuit’s disregard of this intent undermines the well-established

system that has resulted in the mandatory EPA transfer of

NPDES permitting authority to 45 states over the last 33 years.’

6. There is no dispute that the S tate of Arizona met the requirements

of sections 402(b)(1)-(9) of the CWA. Defenders of Wildlife, 420 F.3d

at 963, n. 11.

7. The first state that EPAtransferred NPDES permitting authority

to was California on May 14, 1973. See National Pollution Discharge

Elimination System (NPDES): Specific State Program Status (visited

October 27, 2006) <http://cfpub.epa.gov/npdes/statestats.cfm? program

_id=45&view=specific>.

6

The Ninth Circuit decision determined that strict state

compliance with ESA § 7(a)(2) is the only means to ensure

that state actions are not likely to jeopardize endangered

species. As a result of that decision, in order for current state

programs to maintain their NPDES authority or new state

applicants to obtain a transfer pursuant to CWA § 402(b),

States would apparently be required to adopt burdensome new

mechanisms in strict compliance with the requirements of

ESA § 7(a)(2). If the Ninth Circuit decision is left to stand,

EPA could be required to revisit its CWA § 402(b) transfer

decisions, and withdraw approval of state NPDES programs,

regardless of independent state efforts to protect endangered

species, if full state compliance with the requirements of ESA

§ 7(a)(2) cannot be demonstrated. 33 U.S.C. § 1342(c). This

withdrawal directly conflicts with the language and

legislative intent of the CWA, which envisioned an NPDES

permitting program that would primarily be administered by

the states, as is the case today. A broad withdrawal of state

NPDES authority would have serious, widespread effects.

EPA would be burdened by the return of permitting authority

and would have its resources exhausted by the increased

volume of new permitting decisions, potentially leading to

burdensome delays on regulated facilities seeking permits.

The Ninth Circuit decision unjustifiably undermines the

NPDES system that EPA and the states have carefully

developed for more than three decades.

The Ninth Circuit decision would also unreasonably shift

Statutory power to the ESA Services, as administrators of

the ESA. Because there is no indication that the Ninth Circuit

limited its decision to apply ESA § 7(a)(2) only to CWA

§ 402(b), EPA would apparently be required, by the logic of

the decision, to consult with the ESA Services before

performing numerous other mandatory EPA duties under the

CWA and other environmental statutes. Moreover, all other

federal agencies would also be required to consult with the

ESA Services before acting under non-environmental

7

Statutes, as recognized by the dissenting opinion on the denial

of the Petition for Rehearing or Rehearing En Banc before

the Ninth Circuit: “If the ESA were as powerful as the

majority contends, it would modify not only EPA’s obligation

under the CWA, but every categorical mandate applicable to

every federal agency.” Defenders of Wildlife v. EPA, 450 F.3d

394, 399, n. 4 (9" Cir. 2006) (Kozinski, J., dissenting)

(emphasis in original). The extensive effects of the Ninth

Circuit decision cannot be overstated.

If broadly applied, the Ninth Circuit decision would

cause substantial and unwarranted changes in the

administration of the NPDES program, in violation of the

CWA language and its underlying legislative intent. Because

of the significant impact that the Ninth Circuit decision will

have on EPA, other federal agencies, state agencies, and the

regulated community, the Court should grant review.

I. The Ninth Circuit Decision Substantially And Adversely

Affects The Well-Established NPDES Program In

Conflict With The CWA Language And Legislative

Intent.

A. Statutory framework of the NPDES program.

The objective of the CWA “is to restore and maintain

the chemical, physical, and biological integrity of the Nation’s

waters.” 33 U.S.C. § 1251(a). In furtherance of this goal, the

CWA prohibits any person from discharging any pollutant

into the waters of the United States from a point source

unless the discharge complies with the CWA’s statutory

requirements. 33 U.S.C. § 1311(a). Section 402 of the CWA

(“CWA § 402”) authorizes EPA to issue NPDES permits for

the discharge of pollutants, provided the discharge meets

particular statutory requirements. 33 U.S.C. § 1342(a). As

described by the Court, “[g]enerally speaking, the NPDES

8

[program] requires dischargers to obtain permits that place

limits on the type and quantity of pollutants that can be

released into the Nation’s waters.” South Florida Mgmt. Dist.

v. Miccosukee Tribe of Indians, 541 U.S. 95, 102 (2004).

The CWA also recognizes “that the States should have a

significant role in protecting their own natural resources.”

International Paper Co. v. Ouellette, 479 U.S. 481, 489

(1987). To this end, CWA § 402(b) requires EPA to transfer

to states the authority to implement and administer the

NPDES permit program, if a state can meet the nine

requirements in sections 402(b)(1)-(9) of the CWA. 33 U.S.C.

§ 1342(b)(1)-(9) (“The Administrator shall approve each

such submitted program .. ..”) (emphasis added). If a state

seeks a transfer of the NPDES permitting program from EPA,

the governor of such a state “may submit to the Administrator

{of EPA] a full and complete description of the program it

proposes to establish and administer under State law or under

an interstate compact.” 33 U.S.C. § 1342(b). Once a state

elects to implement its owr program, and EPA approves such

“submitted program” under the criteria of CWA § 402(b),

State programs can issue permits that ensure compliance with

the CWA. Id. Moreover, once a state permitting program is

established, EPA will cease to administer the NPDES

program in the state’s jurisdiction and “shall suspend the

issuance of permits under subsection (a) of this section as to

those discharges subject to such program unless [EPA]

determines that the State permit program does not meet the

requirement of subsection (b) of this section ... .” 33 U.S.C.

§ 1342(c).

Once EPA transfers NPDES permitting authority to a

State, the state program “shall at all times be in accordance

with” section CWA § 402. 33 U.S.C. § 1342(c)(2). EPA has

a continuing duty to determine whether a state program is in

compliance with CWA § 402. 33 U.S.C. § 1342(c)(3). If EPA

9

determines that a state is not complying with CWA § 402 in

administering its NPDES program, EPA “shall so notify the

State and, if appropriate corrective action is not taken within

a reasonable time,... the Administrator shall withdraw

approval of such program.” /d. (emphasis added). The

permitting authority for that state then reverts to EPA under

CWA § 402(a). 33 U.S.C. § 1342(a).

B. The Ninth Circuit decision undermines the NPDES

program framework envisioned by Congress.

- For the last 33 years, under CWA § 402(b), EPA has

transferred authority to implement and administer the NPDES

program to 45 states, including Arizona. See footnote 7,

supra. In addition, the State of Alaska indicated in an amicus

curiae brief before the Ninth Circuit that it is in the process

of developing an application requesting the transfer of

permitting authority under the NPDES program. The Ninth

Circuit decision, however, subverts the current system that

has been established by EPA’s transfer of authority to the

states. Under the Ninth Circuit decision, EPA could transfer

permitting authority to a state under CWA § 402(b) only if

the state demonstrates to EPA that it will comply with the

express requirements of ESA § 7(a)(2). The Ninth Circuit

decision could also require EPA to withdraw approval of state

programs that are not in compliance with the requirements

of ESA § 7(a)(2). 33 U.S.C. § 1342(c)(3) (“CWA

§ 402(c)(3)”). EPA could be required to insure that current

State programs determine, in consultation with the ESA

Services, that the issuance of permits under the program is

not likely to jeopardize endangered species. /d. In other

words, state-administered NPDES programs could have to

strictly comply with-ESA § 7(a)(2) in ongoing permit

decisions as if the states were federal agencies, or EPA “shall

so notify the State and, if appropriate corrective action ts not

taken within a reasonable time .. . the Administrator shall

10

withdraw approval of such program.” /d. Thus, under the

Ninth Circuit decision, if EPA does not ensure ongoing state

implementation of ESA § 7(a)(2) when determining whether

to withdraw its approval of a current state program, EPA may

violate the ESA.*®

This application of the ESA directly conflicts with the

congressional objective that states take primary

responsibilities under the CWA:

It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities

and rights of States to prevent, reduce, and

eliminate pollution, to plan the development and

use (including restoration, preservation, and

enhancement) of land and water resources, and to

consult with the Administrator in the exercise of

his authority under this Act. It is the policy of

Congress that the States manage the construction

8. The Coalition does not concede that EPA's determination of

whether to withdraw permitting authority under CWA § 402(c) is an

“action” for purposes of ESA § 7(a)(2). However, as explained in

section II, infra, claims are being made that EPA’s determination of

whether to withdraw permitting authority is an action that requires

ESA § 7(a)(2) consultation. See Oregon Natural Res. Council v.

Hallock, et al., Civil No. 02-1650-CO, 2006 WL 1142223, *8, 2006

U.S. Dist. LEXIS 27687, *23 (D. Or. Apr. 24, 2006); National

Wildlife Federation, et a/., Notice of Intent to Sue for Violation of

Endangered Specics Act --- Failure of EPA to Consult on Effect of

NPDES Delegation to the Washington State Dept of Ecology and

Oversight on Threatened Puget Sound Chinook Salmon, at 3 (Apr.

19, 2006), <http://www.ecy.wa.gov/programs/wa/links/educate/

attachments_to_noi/Nof1l001 .pdf>. If claims such as these succeed

and a court decides that EPA’s withdrawal determination under CWA

§ 402(c) is a federal action for purposes of ESA § 7(a)(2), then the

logic of the Ninth Circuit decision seems to indicate that EPA would

be required to withdraw NPDES permitting authority from state-

administered programs based on noncompliance with ESA § 7(a)(2).

11

grant program under this Act and implement the

permit programs under sections 402 and 404 of

this Act.

33 U.S.C. § 1251(b); see also Ouellette, 479 U.S. at 490

(The states have a “strong voice in regulating their own

pollution,” and should play a major role in protecting and

preserving their own natural resources.); Robert V. Percival,

Symposium: Environmental Federalism: Historical Roots

and Contemporary Models, 54 Mb. L. Rev. 1141, 1174-75

(1995) (citing the CWA as an example of “cooperative

federalism,” whereby the states have been granted the primary

responsibility of administering and enforcing the permit

program in a way that fits their objectives).

Moreover, the legislative history of the CWA indicates

that it was Congress’ expectation that the states have the

primary role in the administration of the NPDES permitting

program. S. Comm. ON PusBLic Works, FEDERAL WATER

POLLUTION CONTROL AcT AMENDMENTS OF 1972, S. Rep. No.

92-414, at 71 (1971) (“It is expected that the States will play

a major role in the administration of this program.”) Congress

recognized that some states already possessed the broad

expertise and capability to evaluate certain categories of

discharge sources, and could therefore administer the permit

system within their boundaries. /d. at 8 (“Talents and

capacities of those States whose own programs are superior

are to be called upon to administer the permit system within

their boundaries.”) In addition, during hearings before the

Subcommittee on Air and Water Pollution of the Committee

on Public Works, EPA Assistant Administrator John R.

Quarles, Jr. stated:

We are proceeding with the program that is based

on trying to relate it to the existing structure of

the Federal-State partnership established under the

[CWA] and that structure places in the State the

12

primary firing line responsibility for dealing with

polluters, gathering information as to water quality

conditions in the States, and prescribing levels of

treatment that should be required. The Federal role

is a backup role and we are trying to be more

vigorous in pursuing our own responsibilities but

not distort them into a fundamentally different

level of responsibility.

Bills Amending the Federal Water Pollution Control Act and

other Pending Legislation Relating to Water Pollution

Control, Hearings before the S. Subcomm. on Air and Water

Pollution of the Comm. on Public Works, 92nd Cong. 4356

(1971) (statement of John R. Quarles, Jr.). The conflict

between the legislative intent of the CWA and the Ninth

Circuit decision demonstrates the importance of the issue

involved in this case and the substantial impact that the

decision would have on the administration of the NPDES

program and the CWA.

If the Ninth Circuit decision is left to stand, there would

be, at least, two substantial adverse effects on the

administration of the NPDES program. First, in order to avoid

a denial of new applications for a transfer (such as for the

State of Alaska) or a possible withdrawal of EPA’s approval

of current NPDES programs, states would be required to

implement permitting programs that strictly comply with ESA

§ 7(a)(2), despite the fact that the plain language of ESA

§ 7(a)(2) applies only to federal agencies. 16 U.S.C.

§ 1536(a)(2). This required revision could have a sweeping

effect on state NPDES programs, as states could have to

consult with the ESA Services on all actions under the

NPDES program, including decisions on individual

wastewater or stormwater permits. The imposition of a direct

ESA § 7(a)(2) consultation requirement on the states would

drastically delay the states’ ability to issue NPDES permits,

13

because states would now be required to wait for assessments

from the ESA Services before issuing permits. Such a delay

will adversely affect the regulated community; an increased

delay will cause more uncertainty in planning to meet future

discharge requirements, particularly if a renewed permit

imposes more stringent discharge limits. Systematic delays

in the NPDES system will substantially affect entities

constructing new facilities or changing existing facilities, as

such facilities may not be able to begin operations until EPA

or a delegated state agency issues a permit. Moreover, a

lengthier development period for an NPDES permit will lead

to additional transaction costs (such as for additional

meetings with permitting agencies and additional data

collection and assessments) for obtaining a permit renewal.

The second likely effect of the Ninth Circuit decision is

that EPA’s review of whether state NPDES programs comply

with ESA § 7(a)(2) could lead to EPA withdrawing approval

of the programs. Once EPA withdraws its approval of a state

NPDES program under CWA § 402(c)(3), the permitting

authority for dischargers in that state would revert back to

EPA under CWA § 402(a). 33 U.S.C. § 1342(a). Inevitably,

the withdrawal of approval for a state program and transfer

of the NPDES permitting authority back to EPA would affect

the permitting process, as EPA would be required to shift its

resources to handle a substantial increase in NPDES

permitting applications and decisions. This result -

centralizing permitting decisions with EPA - is a result that

Congress was seeking to avoid in passing CWA § 402(b).

This could exhaust EPA’s resources on permitting decisions,

due to the comprehensive and time-consuming analysis that

is required for issuing NPDES permits. It is also unlikely

that EPA would be able to match the volume of NPDES

permits that are issued by the 45 states, leading to longer

administrative processes for issuing discharge permits and

an increase in the current backlog of outdated permits.

14

Further, EPA lacks the local expertise and knowledge of the

state agencies regarding their own waterways, and would

therefore need to conduct additional analysis that will further

hold up the NPDES permitting process. The impact on EPA,

state agencies, regulated entities and other stakeholders of

potentially transferring 45 state NPDES programs back to EPA

cannot be overstated. The Court should grant review to clarify

the interplay between ESA § 7(a)(2) and the CWA, consistent

with statutory language and legislative intent.

II. The Ninth Circuit Decision Impermissibly Shifts

Authority To The ESA Services For An Assessment Of

Agency Action.

Because the Ninth Circuit broadly held that ESA § 7(a)(2)

effectively overrides: the mandatory duties of EPA under another

statute (the CWA), the ESA Services would gain significant

authority under this rationale — not only under the CWA, but

also under other statutes. ESA § 7(a)(2) states that each federal

agency shall insure that its actions are not likely to jeopardize

the existence of an endangered species “in consultation with

and with the assistance of the” ESA Services. 16 U.S.C.

§ 1536(b). As to CWA § 402(b), the Ninth Circuit decision would

impose an ongoing ESA § 7(a)(2) consultation responsibility

on the states to whom EPA delegated the NPDES permitting

authority. Although EPA would maintain its authority to make

a determination under the nine elements of CWA § 402(b), the

ESA consultation responsibility would become a 10" clement,

and the ESA Services wouid now have to be integrated into the

state NPDES programs. Indeed, there are already indications

that the Ninth Circuit decision is eroding the NPDES permitting

program as administered by the states; multiple challenges to

EPA decisions have been raised based on alleged noncompliance

with ESA § 7(a)(2). See Oregon Natural Res. Council v. Hallock,

et al., Civil No. 02-1650-CO, 2006 WL 1142223, *8, 2006 U.S.

Dist. LEXIS 27687, *23 (D. Or. Apr. 24, 2006) (Plaintiffs

challenged the Oregon Department of Environmental Quality’s

15

issuance of an NPDES permit on the ground that they had not

initiated or completed a consultation with ESA Services); see

also National Wildlife Federation, et al., Notice of Intent to

Sue for Violation of Endangered Species Act — Failure of EPA

to Consult on Effect of NPDES Delegation to the Washington

State Dept of Ecology and Oversight on Threatened Puget Sound

Chinook Salmon, at 3 (Apr. 19, 2006), <http://www.ecy.wa. gov/

programs/wq/links/educate/attachments_to_noi/Nof1001.pdf>

(citing the Ninth Circuit decision, potential plaintiffs claimed

that EPA’s decision to delegate the authority to administer the

NPDES program to the states requires compliance with ESA

§ 7). Nothing in the plain language of either the CWA or the

ESA contemplates such a shift of authority to the ESA Services

to be given lead authority over EPA and state implementation

of the CWA and other statutes.

Moreover, the Ninth Circuit decision will fundamentally

change the processes and analysis that are conducted in

administering an NPDES program by either EPA or state

agencies. Under CWA § 402, the focus of issuing an NPDES

permit is on the pollutant discharge and whether the permit is

consistent with the CWA. 33 U.S.C. § 1342(a). If ESA § 7(a)(2)

is now imposed on CWA § 402, the critical inquiry will not be

solely on whether the permit and the allowable pollutant

discharges are consistent with the CWA, but rather the analysis

will expand to address the effects of the permitted activity on

endangered species. As a result, the development and issuance

of an NPDES permit and the administration of the NPDES

authority will fundamentally change from a focus on an analysis

of pollutant discharges to an assessment of the likely effects of

a project on endangered species. This shift is inconsistent with

the language and intent of the CWA.

There is also no indication that the Ninth Circuit decision

will be limited to EPA’s duties under the CWA. The dissenting

opinion on the denial of the Petition for Rehearing or Rehearing

kn Banc before the Ninth Circuit recognized the potential

16

breadth of the decision below as potentially applying to

“... every categorical mandate applicable to every federal

agency.” Defenders of Wildlife v. EPA , 450 F.3d 394, 399, n. 4

(9" Cir. 2006) (Kozinski, J., dissenting) (emphasis in original).

The Ninth Circuit decision would grant the ESA Services a new

central role under other statutes. For example, under the federal

Resource Conservation and Recovery Act (“RCRA”) (42 U.S.C.

§$§ 6901, et seg.), a state may seek “to administer and enforce a

hazardous waste ... program ...” by submitting an application

to EPA. 42 U.S.C. § 6926(b). EPA then decides whether the

application satisfies three criteria. Jd. If EPA approves a state

application for administering a RCRA permitting program, then

“{a}ny action taken by a State under a hazardous waste program

authorized under this section shall have the same force and effect

as action taken by the Administrator under’ RCRA. 42 U.S.C.

§ 6926(d). Further, EPA has a continuing duty to determine

whether a state is properly administering and enforcing a

hazardous waste permitting program. 42 U.S.C. § 6926(e). If a

State is not properly administrating a program and corrective

action is not taken, EPA “shall withdraw authorization of such

program and establish a Federal program... .” /d. In light of

the Ninth Circuit decision, EPA could be required to ensure

ongoing state consultation with the ESA Services for ESA

§ 7(a)(2) compliance before EPA can delegate RCRA permitting

authority to a state. As with NPDES authority under the CWA,

a state could be required to demonstrate to EPA that its RCRA

permitting program complies with ESA § 7(a)(2) in order to

maintain such a permitting program. Likewise, EPA could be

required to withdraw its approval of a RCRA permitting program

if a state does not implement procedures to demonstrate to EPA

that it is in compliance with ESA § 7(a)(2).

Another example of a statute that could be affected by the

Ninth Circuit's ruling is the federal Clean Air Act (“CAA”)

(42 U.S.C. §§ 7401, et seq.). Under the CAA, states were

required to develop and submit to EPA a permit program within

three years after the enactment of the CAA. 42 U.S.C.

17

§ 7661a(d). If a state program was not approved within two

years, EPA was required to administer a permitting program for

that state. 42 U.S.C. § 766la(d)(3). If a state has delegated

permitting authority, EPA is then charged with a continuing duty

to determine whether “a permitting authority is not adequately

administering and enforcing a program, or portion thereof, in

accordance with the requirements d”’ the CAA. 42 U.S.C.

§ 7661a(i)(1) & (2). If EPA determines a state is not properly

administering a permitting program, EPA is required to issue a

notice to the state. 42 U.S.C. § 7661a(i)(1). If the state has not

come into compliance with the CAA within 18 months after

the notice is issued, EPA is required to impose sanctions.

42 U.S.C. § 7661a(i)(2) (“. . . the Administrator shall apply the

sanction under section 179(b).”) Under the Ninth Circuit

decision, states could be subject to sanctions under the CAA

for noncompliance with ESA § 7(a)(2). In addition, EPA is

required to object to a proposed permit from a state “[i]f any

permit contains provisions that are determined by the

Administrator as not in compliance with the applicable

requirements of [the CAA], including the requirements of an

applicable implementation plan... .” 42 U.S.C. § 7661d(b)(1)

(“the Administrator shall . . . object to its issuance.”) (emphasis

added). Under the Ninth Circuit rationale, EPA could be required

to object to CAA permits that are not issued in compliance with

the requirements of ESA § 7(a)(2).”

9. As with the CWA, there is also evidence that ESA§ 7(a)(2)

is affecting the CAA permitting program. A challenge has been

brought against a Prevention of Significant Deterioration (“PSD”)

permit based on alleged noncompliance with ESA § 7(a)(2). See In

re: Indeck-Elwood, L.L.C., PSD Appeal No. 03-04, slip op. at 18-19

(Environmental Appeals Board, Sept. 27, 2006) (Petitioners

challenged the [linois Environmental Protection Agency's issuance

of a PSD permit in part on the ground that the state agency failed to

comply with the consultauion requirements under ESA § 7).

18

If Congress had intended for the ESA Services to have

overriding authority over EPA under ESA § 7(a)(2), it could

have explicitly stated so in the lang».age of the CWA and the

ESA. Absent such statutory language, the ESA should not

be read to effectively repeal mandatory EPA duties under

the CWA. Morton v. Mancari, 417 U.S. 535, 551 (1974)

(quoting United States v. Borden Co., 308 U.S. 188, 198

(1939)) (“The intention of the legislature to repeal ‘must be

clear and manifest.’”) In accordance with the legislative

intent, the CWA and the ESA should peaceably co-exist, with

neither act having preemptive power over the other. /d. (“The

courts are not at liberty to pick and choose among

congressional enactments, and when two statutes are capable

of co-existence, it is the duty of the courts, absent a clearly

expressed legislative intention to the contrary, to regard each

as effective.”) The Ninth Circuit decision impermissibly

ignores the language and intent of the CWA, creating a

sweeping effect on the regulated community, including

Coalition members, that deserves the attention of the Court.

19

CONCLUSION

For the reasons set forth above, this Honorable Court

should grant the Petitions for writ of certiorari.

Respectfully submitted,

Danie P. ALBERS

Counsel of Record

Frepric P. ANDES

Davip T. BALLARD

BarNES & THORNBURG

One North Wacker Drive

Suite 4400

Chicago, Illinois 60606

(312) 357-1313

Counsel for the Federal Water

Quality Coalition