# Amicus Curiae Brief — National Ass'n v. Defenders of Wildlife > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0293%3A34 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2007 - **Citation:** 551 U.S. 644 ## Text eva 12 Nos. 06-340 and 06-549 In The Supreme Court of the Anited States NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL., Petitioners, Vv. DEFENDERS OF WILDLIFE, ET AL., Respondents. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Petitioner, Vv. DEFENDERS OF WILDLIFE, ET AL., Respondents. On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF OF AMICUS CURIAE THE NATIONAL ASSOCIATION OF CLEAN WATER AGENCIES IN SUPPORT OF PETITIONERS Alexandra D. Dunn William A. Anderson, II General Counsel Counsel of Record National Association of Sean M. Sullivan Clean Water Agencies D. Cameron Prell 1816 Jefferson Place, NW WILLIAMS MULLEN, P.C. Washington, DC 20036 1666 K Street NW (202) 533-1803 Washington, DC 20006 (202) 833-9200 —————————————————— LANTAGNE LEGAL PRINTING ane @. 4 bhatt, Ghana Gace, 6H Oates OMe 6S CCM Cee A499 TABLE OF CONTENTS TABLE OF AUTHORITIES .0000000. ec eccceeceteeeeneeee il SPR ETS GEE PONISI IIE TID cevesnevesccensesescossccsnceeesesssetenncies l EARNS GI COU Cee rccsenssnsenescisnnnsseccercssomssensssnnsees 2 SUMMARY OF ARGUMENT ............. See King County Wastewater Treatment Division, //abitat Conservation Plan, at http://dar.metrokc.gov/wtd/hcp/index.htm (Aug. 23, 2006); San Francisco Public Utilities Commission, Res. No. 00-0229. * See Collier County, Florida, Res. Nos. 2005-174 & 2006-41; Broward County, Florida, NatureScape Broward — Between Sawgrass and Seagrass, at http://www. broward.org/naturescape/ (last visited Feb. 19, 2007). Il. Boru NPDES AND ESA REGULATIONS PRECLUDED EPA FROM CONSIDERING THE ESA A. EPA’s NPDES RULES PREVENT THE AGENCY FROM INJECTING ESA CONCERNS INTO CWA SECTION 402(B) APPROVALS EPA’s regulations regarding the required content of state NPDES programs allow the Agency to consider only the criteria contained in CWA Section 402(b) when evaluating requests to approve such programs. Compare 33 U.S.C. § 1342(b) with 40 C.F.R. § 122.49 & 40 C.F.R. § 123.25. [tis a fundamental rule of administrative law that an agency must abide by its own regulations. See Fort Stewart Schools v. FLRA, 495 U.S. 641, 654 (1990); accord, United States v. Nixon, 418 U.S. 683, 696 (1974) (stating so long as a regulation remains in force, the Executive Branch is bound by it), The Second Circuit has recently invoked this principle in reviewing another aspect of EPA’s NPDES program. See RiverKeeper, Inc. v. EPA, No. 04-6692- (ag\(L), slip op. at 55 (2d Cir. Jan. 25, 2007), available at 2007 WL 184658 (2d Cir. 2007) (“It is axiomatic that an administrative agency is bound by its own regulations”) (internal citation omitted). EPA would have been wise to. have heeded that axiom here. Because it did not, a refresher on those regulations is in order. EPA’s interim NPDES permit program under Section 402(a), 33 U.S.C. § 1342(a), is governed by its regulations at 40 C.F.R. Part 122. Other federal laws that may be applicable to permit-issuance decisions by EPA as a federal 10 agency are listed in Section 122.49. These include laws relating to protection of scenic rivers, historical values, endangered species, and the coastal zone; to consultation with state wildlife resource agencies; and in certain instances to broad consideration of environmental impacts. See id. It is here in Section 122.49 that EPA’s regulations make the ESA specifically applicable to EPA decisions on permits. /d. § 122.49(c). EPA regulations at 40 C.F.R. Part 123 in turn set forth the requirements State programs must meet to obtain approval. As EPA explains there: This part specifies the procedures EPA will follow in approving, revising and withdrawing State programs and the requirements State programs must meet to be approved by the Administrator under sections 318 [aquaculture], 402, and 405(a) {sludge disposal] (National Pollutant Discharge Elimination System— NPDES) of the CWA. 40 C.F.R. § 123.1(a). EPA then commits itself to approve those State programs that meet the requirements of Part 123: The Administrator will approve State programs which conform to the applicable requirements of this part. Id. § 123.1(c). The rule then specifies the applicable requirements, in pertinent part, by incorporating selected portions of those applicable to EPA’s own permit program, as set forth in various sections of Part 122. When EPA then sets forth more specifically in 40 C.F.R. § 123.25(a) the catalogue of mandatory program elements that States must incorporate to gain approval, it omits entirely any reference to Section 122.49 or the Endangered Species Act. See 40 1] C.F.R. § 123.25(a). This omission is consistent with the statute. In addition, a comparison of the text of 40 C.F.R. § 122.49 as originally proposed, versus its final form, evinces EPA’s recognition that the requirements of other federal environmental statutes are not appropriate grounds for NPDES permit requirements under the CWA. As proposed, Section 122.49 would have required all NPDES permits to reflect applicable requirements from other federal environmental laws. See 43 Fed. Reg. 37,078, 37,102 (Aug. 21, 1978). The final version of this provision, however, deleted the requirement for NPDES permits to include such obligations. See 40 C.F.R. § 122.49. Instead, even where EPA is the permit agency, Section 122.49 stands only as a reminder of the other Federal statutes that may be independently applicable to the same activity being permitted. The NPDES rule’s omission of the ESA from State program requirements is consistent with a joint discussion by EPA, FWS, and NMFS of the Fifth Circuit’s opinion in American Forest & Paper Ass'n v. EPA. \n the preamble to their final 2001 Memorandum of Agreement (the “MOA”), those agencies agreed that the MOA _ would not impermissibly interpose ESA requirements into EPA’s CWA analyses because EPA’s consultation with FWS and NMFS “simply ensures that EPA has the full benefit of the Services’ views on potential impacts to Federally listed species . . . in determining whether CWA requirements are met.” 66 Fed. Reg. 11,202, 11,206 (Feb. 22, 2001) (emphasis added). And it is the CWA requirements, not those of the ESA, that govern EPA’s decision under its own binding NPDES regulations. Limiting EPA’s analysis of State NPDES programs submitted for approval to the four corners of CWA Section 12 402(b) and its implementing regulations provides the Agency with definite rules of decision to use while implementing the Act. Perhaps more importantly, faithful adherence to the statute and EPA’s implementing regulations provides States seeking to operate their own NPDES program with certainty as to the requirements for such a program. B. ESA REGULATIONS INSTRUCTED EPA Not To CONSIDER THE ESA EPA would also have been well-advised to follow the ESA regulations reflecting the interpretation of the ESA by the agencies charged with its implementation. As explained in the EPA Petition and that of the National Association of Home Builders, the regulations promulgated by the agencies charged with administering the ESA provide that: Section 7 [of the ESA] and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control. 50 C.F.R. § 402.03 (emphasis added); EPA Pet. For Cert. at 18; National Association of Home Builders Pet. for Cert. at 20-21. Thus, where a Federal agency has no discretion regarding a particular action, FWS and NMFS _ have concluded that Section 7 and the related regulations do not apply. As the EPA Petition points out, any ESA consequence of Arizona’s assumption of NPDES authority was the effect of congressional mandate, not of Agency action. EPA Pet. for Cert. at 17. Under the ESA regulation, any such effect was not “caused” by EPA’s approval. /d.; see 50 C.F.R. § 402.02. EPA had no choice but to approve. Because FWS and NMFS’s interpretation is a permissible reading of ESA Section 7(a), 16 U.S.C. § 1536(a), it is entitled to Chevron deference. See 467 U.S. at 842-43. 13 CONCLUSION For the foregoing reasons, NACWA urges the Court to vacate the decision of the United States Court of Appeals for the Ninth Circuit with respect to the necessity for EPA to consider ESA effects in CWA § 402(b) decisions. ALEXANDRA D. DUNN General Counsel National Association of Clean Water Agencies 1816 Jefferson Place, NW Washington, D.C. 20036 (202) 533-1803 14 Respectfully submitted, WILLIAM A. ANDERSON, io WILLIAMS MULLEN, P.C. 1666 K Street, N.W. Washington, D.C. 20006 (202)833-9200 Fax: (202)293-5939 STATUTORY APPENDIX CWA Section 402(c), 33 U.S.C. § 1342(c) (2000 & Supp. IV 2004). (c) Suspension of Federal program upon submission of State program; withdrawal of approval of State program; return of State program to Administrator (1) Not later than ninety days after the date on which a State has submitted a program (or revision thereof) pursuant to subsection (b) of this section, the Administrator shall suspend the issuance of permits under subsection (a) of this section as to those discharges subject to such program unless he determines that the State permit program does not meet the requirements of subsection (b) of this section or does not conform to the guidelines issued under section 1314(i)(2) of this title. If the Administrator so determines, he shall notify the State of any revisions or modifications necessary to conform to such requirements or guidelines. (2) Any State permit program under this section shall at all times be in accordance with this section and guidelines promulgated pursuant to section 1314(1)(2) of this title. (3) Whenever the Administrator determines after public hearing that a State is not administering a program approved under this section in accordance with requirements of this section, he shall so notify the State and, if appropriate corrective action is not taken within a reasonable time, not to exceed ninety days, the Administrator shali withdraw approval of such program. The Administrator shall not withdraw approval of any such program unless he shall first have notified the State, and made public, in writing, the reasons for such withdrawal. (4) Limitations on partial permit program returns and withdrawals.--A State may return to the Administrator administration, and the Administrator may withdraw under paragraph (3) of this subsection approval, of— (A)a State partial permit program approved under subsection (n)(3) of this section only if the entire permit program being administered by the State department or agency at the time is returned or withdrawn; and (B)a State partial permit program approved under subsection (n)(4) of this section only if an entire phased component of the permit program being administered by the State at the time is returned or withdrawn. A-2 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0293%3A34. Public record. Not legal advice.