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

Nos. 06-340 and 06-549

IN THE

Supreme Court of the Anited States

NATIONAL ASSOCIATION OF HOME BUILDERS, ef al..

Petitioners.

Vv.

DEFENDERS OF WILDLIFE. ef a/..

Respondents.

US. ENVIRONMENTAL PROTECTION AGENCY.

Petitioners,

Vv.

DEFENDERS OF WILDLIFE, ef a/..

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF WESTERN URBAN WATER COALITION

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

BENJAMIN S. SHARP *

dUY R. MARTIN

PATRICK W. RYAN

ERIC S. MERRIFIFLD

PERKINS COIF LLP

607 Fourteenth Street. NW. #800

Washington, DC 20005

(202) 628-6600

* Counsel of Record Attorneys for Western Urban

Water Coalition

W'LSON-EPES PRINTINGCO INC —- (202) 789-0096 -— WASHINGTON D C 20002

TABLE OF CONTENTS

Page

TABLE OF AUTHORIFPES i.ccicencsscccsseecssecesseccsseessesenneeeen iii

INTEREST OF AMICUS CURITAE........cccccscssccscscoscsescescseseees l

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A. Section 7(a)(2) Does Not Apply to

Section 402 Delegation Decisions

Because Such Decisions Are Non-

II, ccnssitsrietinieciisinbasiinnsibieiasunniiiaciinniaeanen 5

1. The Courts Have Consistently

Held that Section 7(a)(2) Applies

Only to Discretionary Decision-

FREIND <nicsnsosenseceiseuniinateesnnsedinnisiinmimenens 6

2. FWS Interprets Section 7(a)(2) as

Applicable Only to Discretionary

RIE RE Sacanve avon Renn ECO 7

3. Section 402 Delegations are

on __, LEE )

B. Section 7(ay(2) Does Not Apply to

Section 402(b) Because There is No

Direct Causation Between the Federal

Action and the Effects on Protected

SUD asiscticsinisdnviseqrcesidsipnseiibiteasenaiiaiontiniideinsianbsiotintiniatii 1]

ii

C. Section 7(a)(2) Does Not Implicitly

Repeal Section 402, Which Is A

Required Result of the Ninth Circuit’s

FN nnicinciinsonintnsnpnainieidiiaditmnssinniiinceenienaen

D. Remand Is Inappropriate; FWS’s

Interpretation of Section 7(a)(2) Is

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E. The Practical Effects of Defenders Are

Potentially Grave for Water Purveyors in

the Western United States...........................00000.

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TABLE OF AUTHORITIES

Page

Cases

American Forest and Paper Ass'n v.

BPA, 137 F.36 293 (SOs Cit. 1996)......0ccccccccccssccscovsees 6, 7, 10

Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon,

ee ee hairiiariiesiecevnnsineiiiaiinisneiitisieidemuiiassinatdbinsi 4,8

Bennett v. Spear, 520 U.S. 154 j

STIPE Uichninceiseicsciguiepbcitbapesbaneincheniliseoasisbebisiuadsitiiedeidhaiiesasbeluniianiaiianeee 5

Branch vy. Smith, 538 U.S. 254

SE seniuitasesbdeccheceamiaisannbataineciesiotidibiclaiiiabiabesdemieeceiuiniliniiaaiiins 15

Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837

SUITES win ciipecndibcitndiaeiidaandieestnsiobuiainenniadiadaianiiiobabcdiniiiebnaiialineainniie 18

Citizens for a Better Environment v.

oo Be LP Bs Le | Senn EE 10

Defenders of Wildlife v. EPA, 420

I a passim

Department of Transportation v.

Public Citizen.

ee ey I techs tiabscescasieslacindianitechiesidihlinccinibdeiajhdidhidecacan a

EPA v. California ex rel. State Water

Res. Control Bd., 426 U.S. 200

iV

Ground Zero Center for Nonviolent

Action v. U.S. Dep't of the Navy,

383 F.3d 1082 (9th Cir. 2004) oo.

In re Operation of the Missouri River

Sys. Litig., 421 F.3d 618 (8th Cir.

Marbled Murrelet v. Babbitt, 83 F.3d

EE I EY. SPITE ciaretcicicticcicsicniinnisinnesennsaineeis

Morton v. Mancari, 417 U.S. 535

SPF OE PIED estinshcesnsttatiaiasiinadsaianinitaininibensidiucinaineieneietuns

Natural Res. Def. Council, Ine. v.

EPA, 859 F.2d 156 (D.C. Cir.

Oregon Natural Res. Council v.

Hallock, et al., Civil No. 02-1650-

CO, 2006 WL 1142223 (D. Or.

Pee eee eee

ES LOL TOT 20

Platte River Whooping Crane

Critical Habitat Maintenance

Trust v. FERC, 962 F.2d 27 (D.C.

Fe See ainiivianttindndpsihdbitednenaiaidnbiibeliannsonitonensiveideniosaninenaned 6,7

Posadas vy. Nat'l City Bank, 296 U.S.

EERE Anco

Sierra Club v. Babbitt, 65 F.3d 1502

NN: SII aciiiasiclindntsindsinnsdetistonndenennmesemententnate

Smiley v. Citibank (South Dakota),

eg ae OP: OE cicstnprsentunninsintcinanvenenee

South Fla. Water Mgmt. Dist. v-

Miccosukee Tribe, 541 U.S. 95

RIE TED se dcshiinssdtiunhindpniiedeeninactipimcatabieniaienvniinnsde

eee rem eee

Strahan vy.

V

Linnon, 967 F. Supp. 581

(D. Mass. 1997), aff'd, 187 F.3d

623, 1998 WL 1085817 (Ist Cir.

FP IIE nicsscininntansiniaitasiiisiecutuiniiidaduiiaesiasamemals 7

i A ET Ee passim

Western Watersheds Project v.

Matejko, 456 F.3d 922

(9th Cir, 2006) ..cccccccccssseessssecsevee iiisininiinhiialmamanal 7

Statutes

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33 U.S.C.

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33 U.S.C. §1344(g)-( kK)... cccccceerceerereeseeeeed pantnennemesndngnimecamn 14

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SEE Eta: Ut DERI IIIIIE cccscocsusenenscansssescesensesanentuensnnnoeoneesseonesenses 14 |

Regulations

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iG TTT derieodiisicenseneeiihdiinderinnnnanesaseneenonsesssenascesinees 7,8

TT icticneininesiddihiidinremeenteincentaphamenemennessces 7, 8,17

I casera carmnpenrenintenenenannsens 5

Other Authorities

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 Department

of Ecology and Oversight on

Threatened Puget Sound Chinook

ac nncrnnne a dindsiinininenedennnenecsasnis 20

INTEREST OF AMICUS CURIAE'

The Western Urban Water Coalition (*“WUWC’”) is a

national association of the municipal water supply utilities

that serve most of the largest cities in the western United

States. The charter of WUWC members is to provide

reliable, high-quality urban water supplies for present and

future water consumers. Urban water supplies must be

adequate to accommodate growth, sustain people, and

maintain and build the economy. WUWC utilities own and

operate water supply projects and, in many instances,

wastewater treatment facilities for this purpose. WUWC

members serve over 35 million urban water consumers in

Arizona, California, Colorado. Nevada, Oregon, and

Washington.

All WUWC members operate in states that have been

delegated authority to issue permits under the Clean Water

Act’s (“CWA”) National Pollutant Discharge Elimination

System (“NPDES”) program. Many WUWC members

currently hold, or are applying for, such permits, which are

integral to the operation of their utility systems. If the Court

upholds the decision below in Defenders of Wildlife v. EPA

(“Defenders”), 420 F.3d 946 (9th Cir. 2005), it will likely

result in severe administrative delays, unnecessary costs, and

operational uncertainty, threatening existing and future water

utility infrastructure.

Many WUWC members also deliver water to their

customers under longstanding allocations of water established

' In accordance with the Court's Rule 37, the Western Urban Water

Coalition has received written consent of counsel from all parties to file

this brief as amicus curiae. The Consents have been filed with the clerk.

2

by law, treaty, or contractual agreements. The Ninth Circuit

decision could cause the Endangered Species Act (“ESA”),

16 U.S.C. §§ 1531-1544, to trump these long-term water

allocation authorities, seriously disrupting the water rights

and distribution systems in the western states.

SUMMARY OF ARGUMENT

This case focuses on the relationship between section

402(b) of the CWA, 33 U.S.C. §1342(b), and section 7(a)(2)

of the ESA, 16 U.S.C. §1536(a)(2). Section 402 requires

EPA to approve state requests to transfer administration of

the NPDES permitting program if listed statutory criteria are

met. When federal agencies have a non-discretionary duty to

act, as EPA does under section 402, section 7(a)(2) does not

apply.

The Ninth Circuit construed section 402 and section

7(aX(2) to be in conflict and gave the ESA primacy over the

CWA. The Ninth Circuit held that the requirements of

section 7(a)(2}—to consult and to insure that listed species

are not jeopardized and their critical habitats are not

destroyed or adversely modified. can require federal

agencies to deviate from express mandates appearing in their

governing statutes. To reach this conclusion, the Ninth

Circuit relied principally on 7V4 v. /ill, 437 U.S. 153 (1978).

TVA, however, did not reach the question whether section

7(aX(2) overrides non-discretionary duties set forth in other

federal statutes, and it does not support the Ninth Circuit's

conclusion.

The Ninth Circuit also erred by ruling that EPA’s

transfer of NPDES authority is the “cause” of effects on listed

species. [his result is contrary to the Court's causation

3

analysis in Department of Transportation v. Public Citizen,

541 U.S. 752 (2004), which fequires a direct cause-and-effect

relationship between the federal action and the prohibited

result. The mere transfer of NPDES authority has ne direct

consequences on listed species or their critical habitat. Even

if section 7(a)(2) applies to non-discretionary acts, it is not

triggered by NPDES delegation decisions because the

decision itself has no effect on listed species or critical

habitat.

In addition to creating an irreconcilable conflict

between key provisions of the CWA and the ESA, the Ninth

Circuit’s opinion in Defenders thwarts congressional efforts

at cooperative federalism. It casts a cloud over many

federally-delegated permitting programs, upon which a broad

range of entities like the members of WUWC rely, and

renders such programs susceptible to injunction. It also calls

into question long-settled water rights and allocation schemes

in western states. The decision below should be reversed.

ARGUMENT

The Ninth Circuit erred by finding that a conflict

exists between section 7(a)(2) and EPA’s non-diseretionary

duty to delegate the administration of its NPDES program to

states under section 402 of the CWA. The consultation and

no-jeopardy/no-critical habitat destruction provisions of

section 7(a)(2) do not apply to non-discretionary actions, such

as EPA’s section 402 mandate, and, in any case. do not apply

when a federal action is not the direct cause of any potential

harm to protected species.

Reversing the Ninth Circuit's decision will not have

the effect of denying listed species protection under the ESA.

To the contrary, extensive and significant protection ts still

4

afforded to ESA-covered species and their critical habitats

from the effects of discharges subject to state-delegated

permits.” Upholding the Ninth Circuit’s decision, however,

will not only create an irreconcilable conflict between the

ESA and the CWA, but could also force federal resumption

of NPDES permitting and _— substantially disrupt

comprehensive water planning and management throughout

the western states.

* Section 9, for example. provides that it is unlawful for any person to take

any listed species of fish and wildlife. 16 U.S.C. § 1538(a)(1). “Take”

means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or

collect, or attempt to engage in any such conduct.” /d § 1532. The

“take” prohibition of section 9 goes beyend the reach of section 7(a)(2)

and applies not just to federal actions, but to the activities of state

governments, corporations, municipalities, individuals, and others. It

applies to private as well as public lands. The U.S. Fish and Wildlife

Service (“F WS”) has further defined the prohibited act of causing “harm”

to listed species to include “significant habitat modification or degradation

where it actually kills or injures wildlife by significantly impairing

essential behavioral patterns, including breeding, feeding or sheltering.”

50 C.F.R. § 17.3; see Babbitt v. Sweet Home Chapter of Communities for

a Great Oregon, 515 U.S. 687 (1995). The National Marine Fisheries

Service ("NMFS") has a similar definition for aquatic species. See 50

C.F.R. § 202.102. Additionally, section 4 of the ESA requires FWS and

NMFS to develop and implement recovery plans for listed species. 16

U.S.C. § 1533(f1). Recovery plans provide important conservation

guidance to federal agencies, and can serve as a blueprint for removing a

species from listing. Finally, most states have their own endangered

species laws. To be eligible for federal funding, these state programs

must meet standards specified- in the federal FSA to ensure adequate

protection of listed species. /d § 1535(f).

5

A. Section 7(a)(2) Does Not Apply to Section 402

Delegation Decisions Because Such Decisions Are

Non-Discretionary

Section 7(a)(2) requires federal agencies to “insure”

that any action “authorized, funded, or carried out” by the

agency will not “jeopardize the continued existence of any

endangered species or threatened species or result in the

destruction or adverse modification of [critical habitat] of

such species.” 16 U.S.C. §1536(a)(2). Federal agencies

generally fulfill their section 7(a)(2) responsibilities through

the consultation process defined by statute and regulation. /d.

§1536(b)-(d); 50 C.F.R. Pt. 402. If a proposed federal action

may affect a listed terrestrial or freshwater species, or its

designated critical habitat, the agency consults with FWS to

evaluate the action’s impacts and minimize any effects. 16

U.S.C. §1536(a)(2); see Bennett v. Spear, 520 U.S. 154, 158,

169-70 (1997). When the action affects marine species, the

agency consults with NMFS. During consultation, a federal

agency and any private permit applicant may not make

irreversible or irretrievable commitments of resources that

have the effect of foreclosing the formulation § or

implementation of reasonable and prudent alternatives which

would avoid jeopardy. 16 U.S.C. § $536¢d); 50 C.F.R.

§ 402.09.

The consultation and no-jeopardy/no-critical habitat

destruction requirements set forth in section 7(a)(2) do not

apply to every federal action. Instead, section 7(a)(2) ts

limited to those actions in which a federal agency has

discretion and where the federal agency's actions are the

direct cause of effects to listed species or their critical habitat.

6

1. The Courts Have Consistently Held that

Section 7(a)(2) Applies Only to

Discretionary Decision-Making

This Court held in 7VA v. Hill that section 7(a)(2)

takes priority over discretionary federal actions. In that case,

TVA exercised its discretion by deciding to locate a federally

funded dam on a certain segment of the Little Tennessee

River. 437 U.S. at 157. While congressional committees

allocated funds for the Tellico Dam _ project, those

appropriations did not mandate construction of the dam in a

specific location. /d at 189 (“There is nothing in the

appropriations measures, as passed, which states that the

Tellico Project was to be completed irrespective of the

requirements of the [ESA]. These appropriations, in fact,

represented relatively minor components of the lump-sum

amount for the entire TVA project.”) (emphasis in original).

Since 7VA v. Hill, the courts have consistently

considered whether discretionary federal authority exists over

the proposed action in deciding whether section 7(a)(2)

applies. See, e.g., American Forest and Paper Ass'n v. EPA,

137 F.3d 291, 297-99 (Sth Cir. 1998} (no federal

discretionary authority over state-issued NPDES permits

upon which to base section 7(a)(2) consultation); Marbled

Murrelet v. Babbitt, 83 F.3d 1068, 1075 (9th Cir. 1996)

(Ff WS’s advice to timber company regarding company’s

compliance with’ other ESA obligations lacked requisite

degree of discretionary federal control to trigger section

7(aX(2)): Sierra Club v. Babbitt, 65 F.3d 1502, 1509 (9th Cir.

1995) (BLM decision to grant right-of-way pursuant to an

existing easement agreement “lack{ed] the discretion to

influence the private action”); Platte River Whooping Crane

Critical Habitat Maintenance Trust v. FERC, 962 F.2d 27, 34

(D.C. Cir. 1992) (holding that FERC lacked discretion under

7

its enabling statute to impose conditions under section 7(a)(2)

to protect listed species).

Those cases that have considered the issue, including

other Ninth Circuit decisions, found that section 7(a)(2) does

not apply to non-discretionary decision-making. See, e.g.,

Western Watersheds Project v. Matejko, 456 F.3d 922 (9th

Cir. 2006) (finding that the duty to consult is only triggered

where there is discretionary action); Ground Zero Center for

Nonviolent Action v. U.S. Dep't of the Navy, 383 F.3d 1082.

1092 (9th Cir. 2004) (holding that Navy did not need to

consult regarding new missile program because Navy lacked

discretion: any consultation by Navy would be “exercise in

futility”). See also, In re Operation of the Missouri River Sys.

Litig., 421 F.3d 618, 630 (Sth Cir. 2005) (wildlife protection

statutes do not apply where they would render an agency

unable to fulfill a non-discretionary duty or exceed its

statutory authority); American Forest and Paper, 137 F.3d at

297; Strahan v. Linnon, 967 F. Supp. 581, 607-08 (D. Mass.

1997), aff'd, 187 F.3d 623, 1998 WL 1085817 at *3 (Ist Cir.

1998) (unpublished) (section 7(a)(2) does not apply to

certificates issued by the Coast Guard based on the agency's

limited statutory discretion); Platte River Whooping Crane,

962 F.2d at 34. As these decisions confirm, where federal

decision-making is non-diseretionary, section 7(a)(2) does not

apply.

2. FWS Interprets Section 7(a)(2) as

Applicable Only to Discretionary Federal

Action

Consistent with 71/4 and as other courts have held,

FWS interprets section 7(a)(2) to reach only discretionary

agency actions. In 1986, FWS adopted regulations that

expressly limited section 7(a)(2) to discretionary actions. See

50 C.F.R. §§ 402.02. 402.03. The regulations provide that

“[slection 7(ay(2).. . applies] to all actions in which there is

8

discretionary Federal involvement or control.” /d. § 402.03

(emphasis added). Conversely, where discretion is lacking,

as with a transfer of NPDES authority under Section 402 of

the CWA, section 7(a)(2) is not applicable.

Another FWS regulation supports the view that it is

the statutory authority under which an agency is making a

permitting decision, and not section 7(a)(2) of the ESA,

that determines whether the agency has discretion. See id.

§ 402.02. If the ESA creates jurisdiction and authority

independent of the primary statute under which an agency is

acting, regulations implementing section 7(a)(2) would not

limit the range of alternatives to be considered under section

7(aX2) to only those falling within the action agency's

primary statutory mandate. Section 402.02 of FWS’s

regulations, however, provides that the Secretary’s authority

to propose alternatives that avoid jeopardy is just so limited.

FWS regulations limit the Secretary’s consideration of

alternatives under section 7(a)(2) to only those that “can be

implemented consistent with the scope of the Federal

agency's legal authority and jurisdiction.” /d Alternatives

falling outside the legal authority and jurisdiction established

by the action agency’s primary statutory mandate cannot be

implemented, and thus, there can be no requirement to

consult with respect to those alternatives before taking action.

Through its regulations, FWS has construed section

7(a2) in a manner that avoids conflicts with other statutes

that impose mandatory duties on an action agency. FWS’s

construction of section 7(a)(2) is reasonable and should be

accorded substantial deference. See Sweet Home, 515 U.S. at

703 (“The latitude the ESA gives the Secretary in enforcing

the statute, together with the degree of regulatory expertise

necessary to its enforcement, establishes that we owe some

9

degree of deference to the Secretary’s reasonable

interpretation.”). Under the ESA regulations, as under the

case law, section 7(a)(2) does not apply to non-discretionary

actions.

3. Section 402 Delegations are Non-

Discretionary

Because section 7(a)(2) applies only to discretionary

decision-making, it has no application to, and is not in

conflict with, NPDES delegation decisions under section 402.

The CWA seeks to “restore and maintain the chemical,

physical, and biological integrity of the Nation’s waters.” 33

U.S.C. § 1251(a). To that end, “the [CWA] prohibits ‘the

discharge of any pollutant by any person’ unless done in

compliance with some provision of the [CWA].~ South Fla.

Water Memt. Dist. v. Miccosukee Tribe, 541 U.S. 95, 102

(2004) (quoting 33 U.S.C. § 131 1(a)).

Under the CWA, discharges are authorized primarily

through the NPDES permitting program. Section 402

“requires dischargers to obtain permits that place limits on the

type and quantity of pollutants that can be released into the

Nation’s waters.” /d at 102. Consonant with the statutory

policy “to recognize. preserve. and protect the primary

responsibilities and rights of States to prevent. reduce. and

eliminate pollution.” 33 U.S.C. § 1251(b). and for states to

implement the NPDES permitting program, section 402(b)

provides that EPA “shall approve” a state's request to

transfer administration of the NPDES program to the state

“unless” the agency determines that the state lacks adequate

authority to administer the program in compliance with nine

specific criteria. /d § 1342(b)(1)-(9) (emphasis added).

None of the criteria for state assumption of the NPDES

10

program involves prevention of harm to wildlife listed under

the ESA.

Once the transfer of NPDES authority is approved, the

CWA requires EPA to conduct oversight to determine

whether the delegated program is being administered “in

accordance with the requirements of this section.” /d.

§ 1342(c)(3). If the state’s administration of the program is

deemed deficient, EPA must demand that the state take

corrective action, and if corrective action is not taken, EPA

“shall withdraw approval of such program.” /d.

Courts have consistently construed the nine criteria of

section 402(b) as binding and exclusive, removing EPA’s

discretion to deny approval of State programs that comply

with the criteria. See EPA v. California ex rel. State Water

Res. Control Bd... 426 U.S. 200, 208 (1976) (EPA “shall

approve” transfer when state program is in compliance with

guidelines and supported by adequate authority); American

Forest and Paper, 137 F.3d. at 297 (the language of 402(b) is

“non-discretionary’); Natural Res. Def. Council, Inc. v. EPA,

859 F.2d 156, 173-74 (D.C. Cir. 1988) (section 402(b)

“commands” EPA to “approve the state permit system” once

the statutory criteria are met); Citizens for a_ Better

Environment v. EPA, 596 ¥.2d 720, 722 (7th Cir. 1979) (“If

the state program satisfies the statutory requirements of

section 402(b) . . . [EPA] must approve the program.”).

Each provision of section 402 related to state NPDES

programs is set forth in the clearest of mandatory terms: EPA

“shall approve” transfer requests: it “shall . . . notify” the state

if corrective action is needed; and, if corrective action is not

taken. EPA “shall withdraw approval of such program.”

Because EPA is expressly compelled by law to act

consistently with section 402(b), 74 v. Hill does not provide

1]

controlling authority, and it does not answer the question

whether section 7(a)(2) applies to non-discretionary federal

actions, such as delegation of NPDES authority. As noted

above, 7VA v. Hill addressed only discretionary agency

action. Reliance on 7VA v. Hill to answer the question before

the Court is therefore misplaced. Instead, cases finding that

section 7(a)(2) applies only to discretionary actions support

finding that NPDES delegation decisions are not subject to

the ESA consultation and no jeopardy requirements.

B. Section 7(a)(2) Does Not Apply to Section 402(b)

Because There is No Direct Causation Between the

Federal Action and the Effects on Protected

Species

Even if the Ninth Circuit were correct in extending

section 7(a)(2) to non-discretionary action, EPA’s delegation

of its NPDES program to states does not cause adverse effects

on listed species so as to activate the consultation duty or the

prohibitions on jeopardy and critical habitat destruction or

adverse modification. Section 7(a)(2) imposes a duty on

federal agencies to insure that species are not jeopardized,

and that critical habitats are not destroyed or adversely

modified, by actions attributable to the agency. Once

administration of the NPDES program is transferred, as

Congress directed pursuant to section 402, it is the state. and

its administration of its own NPDES program, that is directly

responsible for the effects flowing from its permitting

decisions. A congressional mandate to delegate NPDES

program administration to a state does not make EPA

responsible tor any effects to a species that might occur by

virtue of that state’s administration of the program. Such

effects are not proximately caused by non-discretionary

delegation decisions.

1?

ae

This Court’s holding in Public Citizen supports the

conclusion that EPA cannot be considered the legal cause of

any effects on listed species resulting from a_ state's

administration of its delegated NPDES permitting authority.

Public Citizen held that “where an agency has no ability to

prevent a certain effect due to its limited statutory authority

over the relevant actions, the agency cannot be considered a

legally relevant ‘cause’ of the effect.” 541 U.S. at 770. The

question involved was whether the Federal Motor Carrier

Safety Administration (*FMCSA”) was required under the

Nationa! Environmental Policy Act “to evaluate the

environmental effects of cross-border operations of Mexican-

domiciled motor carriers” before deciding whether to approve

registration for such trucks. /d. at 756. This Court found that

the FMCSA’s governing statute uses mandatory language that

compels the FMCSA to grant registration to any applicart

that satisfies certain enumerated criteria. Jd at 766. This

Court rejected the contention that an agency’s action could be

considered a “cause of an environmental effect even when the

agency has no authority > prevent the effect.” /d. at 767.

The Ninth Circuit's conclusion that EPA’s approval of

state requests to transfer NPDES permitting authority “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, 420 F.3d at 971, is inconsistent with this

Court's decision in Public Citizen. Were, as in Public Citizen,

EPA has fulfilled a statutory mandate. Even if effects to

species could be traced along the labyrinthine path from the

transfer approval to jeopardy to species or destruction of

critical habitat, they would be caused by discharges

authorized by administering states and not by LPA’s non-

discretionary approval of the program delegation.

13

In fact, FWS has concluded that NPDES transfer

decisions do not “cause” impacts to species:

[The] loss of any conservation benefit is not

caused by EPA’s decision to approve the State of

Arizona’s program. Rather, the absence of the

section 7 process that exists with respect to

[CWA] permits reflects Congress’s decision to

grant States the right to administer these programs

under state law provided the State’s program

meets the requirements of 402(b) of the [CWA].

Defenders, 420. F.3d at 953 (quoting FWS’s biological

opinion to EPA).

The plain language of section 402 does not make EPA

responsible for effects on protected species flowing from state

NPDES permitting decisions. If Congress wants to hold EPA

responsible for such effects in the manner the Ninth Circuit

found, it has the power to do so. Congress is free to add

another criterion for NPDES transfers that would make

section 7(a)(2) directly applicable or limit transfers to only

those states having state ESA programs that meet specific

requirements. It has not done so, and this Court should

support that judgment by Congress by reversing the decision

below.

Cc. Section 7(a)(2) Does Not Implicitly Repeal Section

402, Which Is A Required Result of the Ninth

Circuit’s Holding

Properly construed, section 7(a)(2) does not conflict

with section 402. 71'A v. Hill held that saving listed species

is to be afforded “first priority” by federal agencies. 437 U.S.

at 185, but it did so in the context of discretionary federal

14

action. As has been found by all other circuits to have

considered the issue, section 7(a)(2) is limited to

discretionary agency action. Simply put, no conflict arises

between section 7(a)(2) and EPA’s delegation mandate under

section 402 because the former does not apply to the latter.

The Ninth Circuit, however, has forced EPA into an

untenable position by ruling that section 7(a)(2) applies to

section 402 transfer decisions. On the one hand, through

section 402, Congress directs EPA to delegate federal

functions to states under a scheme of cooperative federalism.’

On the other hand, the Ninth Circuit decision insists that EPA

must engage in section 7(a)(2) consultation and either deny

the transfer application for reasons not included in the

applicable criteria or approve the transfer notwithstanding the

results of consultation. 3

The Ninth Circuit’s decision creates an avoidable

dilemma that has direct consequences for federal and state

agencies and permit applicants. By forcing EPA to violate

the mandate in section 402 by applying section 7(a)(2), the

* A number of environmental statutes provide for delegation of federal

programs, each of which may be at risk under the Ninth Circuit's opinion.

See. eg., Clean Water Act, 33 U.S.C. § 1344(g)-(k) (providing for

delegation of dredge and fill permitting authority); Clean Air Act, 42

USC. § 766la(d) (providing for delegation of emissions permit

program), Safe Drinking Water Act, 42 U.S.C. § 300g-2 (providing for

delegation of drinking and groundwater protection): Surface Mining

Control and Reclamation Act, 30 U.S.C. § 1235(d) (providing for

delegation of coal mining permitting authority); Resource Conservation

and Recovery Act. 42 U.S.C. § 6926(b) (providing for delegation of

hazardous waste tracking program): Atomic Energy Act, 21 U.S.C.

§ 202 1(c) (providing for delegation of authority to regulate certain

radioactive waste). Under the Ninth Circuit's reasoning, presumably each

of these delegations would be subordinated to their interpretation of

section 7(a2) obligations.

15

Ninth Circuit's approach requires a finding that section 7

implicitly repeals section 402. This result is reason enough to

reverse the Ninth Circuit's decision. The problem is easily

avoided by reading section 7(a)(2) as inapplicable to NPDES

delegations under section 402, as all other courts have done

and as this Court held. See Morton v. Mancari. 417 U.S. 535,

551 (1974) (finding that “when two statutes are » apable of co-

existence,” the courts must “regard each as effective”).

That the Ninth Circuit’s interpretation of section

7(ay(2) creates this conflict,. and thereby requires the

conclusion that section 7(a)(2) repeals by implication the

mandate set forth in section 402(b), argues for reversal. In

TVA v. Hill, the Court noted that “repeals by implication are

not favored.” 437 U.S. at 189 (quoting Morton v. Mancari,

417 U.S. at 549) (internal quotation marks omitted). Indeed,

to find a repeal by implication, “the intention of the

legislature to repeal must be clear and manifest.” /d. (internal

quotation marks and ciiation omitted). The Court summed up

the “cardinal rule” as follows:

{I]n the absence of some affirmative showing of

an intention to repeal. the only permissible

justification for a repeal by implication is when

the earlier and later statutes are irreconcilable.

Id. at 190 (internal quotation marks and citation omitted)

(emphasis added). See also Branch v. Smith, 538 U.S. 254.

273 (2003) (“An implied repeal will only be found where

provisions in two statutes are in ‘irreconcilable conflict.” or

where the latter Act covers the whole subject of the earlier

one and ‘is clearly intended as a substitute.) (quoting

Posadas v. Nat l City Bank, 296 U.S. 497, 503 (1936)).

16

In the absence of any express statement by Congress

thet section 7(a)(2) was intended to repeal section 402, the

Ninth Circuit should have looked for a means of avoiding

conflict and reconciling the statutes. It did not. Neither the

ESA nor its legislative history provides any basis for

concluding that Congress intended implicitly to repeal a

separate legislative mandate, and the doctrine of repeal by

implication does not permit such an interpretation.

Indeed, FWS’s regulatory construction of section

7(aX2) reconciles the ESA with the CWA, as well as other

statutes that mandate or constrain federal agency action. Yet,

rather than affording deference to the agency’s interpretation

of section 7(a)(2), the Ninth Circuit simply interpreted the

FWS regulation as synonymous with the statute it construes.

Defenders, 420 F.3d at 969 (“In sum, we understand our

cases applying the ‘discretionary . . . involvement’ regulation

to interpret that regulation to be coterminous with the

statutory phrase limiting section 7(a\(2)'s application to those

cases ‘authorized, funded. or carried out’ by a federal

agency.”). The Ninth Circuit therefore transformed a

statutory scheme from one that was fully reconcilable—and

fully consistent with FWS’s reasonable construction—into

one that directly conflicts with the CWA.

This conflict can and should be avoided. Because the

ESA and the CWA are easily reconciled. the ESA should not

be construed in a way that necessarily requires a finding of

repeal by implication. The Ninth Circuit's approach requires

such a finding, and that finding is plainly not supported by the

law. ;

17

D. Remand Is Inappropriate; FWS’s Interpretation

of Section 7(a)(2) Is Entitled to Deference

There is no reason to remand this case to EPA. This

issue is clearly presented and appropriate for judicial

resolution. Remand will only serve to delay and potentially

confuse ultimate resolution of the important legal issues

presented by this case.

Remand will not resolve the key issue in this case—

the proper construction of section 7(a)(2) and whether it

applies to section 402 transfer decisions. The answer to that

question ultimately turns on FWS's interpretation of section

7(aX(2), not EPA's interpretation. FWS is the agency

responsible for implementing section 7(a)(2). FWS_ has

consistently interpreted section 7(a)(2) as inapplicable to non-

discretionary federal action. FWS interprets section 7(a)(2)

to apply “to all actions in which there is discretionary Federal

involvement or control.” 50 C.F.R..§ 402.03 (emphasis

added.) See also Defenders, 420 F.3d at 953 (quoting FWS

biological opinion to EPA) (“|T]he absence of the section 7

process that exists with respect to Federal [CWA] permits

reflects Congress’ decision to grant States the right to

administer these programs under state law provided the

State’s program meets the requirements of 402(b) of the

{CWA].~) Because FWS is the agency responsible for

implementing the ESA, FWS’s interpretation of the scope of

section 7(a)(2) is entitled to substantial deference. See Smiley

v. Citibank (South Dakota), N.A.. 517 U.S. 735, 739 (1996)

(stating that deference is accorded “because of a presumption

that Congress, when it left ambiguity in a statute meant for

implementation by an agency. understood that the ambiguity

would be resolved. first and foremost, by the agency. and

desired the agency (rather than the courts) to possess

18

whatever degree of discretion the ambiguity allows.” (citing

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 843-44 (1984)).

Although EPA may have vacillated in_ its

-understanding of whether section 7(a)(2) was applicable to

section 402 transfer decisions in its review of Arizona’s

transfer request, see Defenders, 420 F.3d at 959-62, EPA

ultimately resolved the issue consistently with FWS's

interpretation. EPA is not the agency to which courts should

defer on an interpretation of section 7(a)(2). Remanding the

case to EPA will not answer that question. EPA’s obligations

under section 402 of the CWA appear undisputed by the

Ninth Circuit or any party. Nor does the issue whether

section 402 transfer decisions are mandatory appear to be

challenged; the Ninth Circuit's decision addresses the proper

interpretation of section 7(a)(2) of the ESA, not section 402

of the CWA. Thus, a remand for EPA to consider its

interpretation of section 402 serves no purpose. The issue is

whether EPA can decide that the ESA obligates it to add

criteria not enumerated by Congress for NPDES transfer

decisions contrary to the interpretation of section 7(a)(2) by

the primary agency responsible for administering the statute.

That is a question for this Court to resolve based upon FWS’s

interpretation. EPA’s position on the applicability of section

7(a(2) to section 402(b) transfer decisions is irrelevant, and

remand to that agency serves no purpose.

F. The Practical Effects of Defenders Are Potentially

Grave for Water Purveyors in the Western United

States

If the Ninth Circuit's opinion is allowed to stand. the

consequences for WU WC members are potentially dire. One-

19

potential effect is the withdrawal of EPA approval under

section 402 of the CWA for any already-delegated program

for which section 7(a)(2) consultation was not conducted.

The Ninth Circuit’s conclusion—that sufficient agency

discretion exists in the transfer approval process to consider

the effects of the action on species and critical habitat—may

be expanded to apply equally to EPA’s ongoing oversight of

the state-run NPDES programs. EPA might then be forced to

re-assume permitting authority under section 402(a), despite

the lack of funds and resources to absorb these programs.*

Such a result could affect every state in which WUWC

members operate. Far from the cooperative federalism

Congress contemplated in section 402, the resumption of

federal permitting by EPA would create undesirable

administrative deldys and jeopardize the potential for

comprehensive water planning throughout the western states

by disrupting the regulation and management of wastewater

treatment facilities.

Further, the likelihood of litigation against both

individual permits and permit programs cannot be overstated.

If the Ninth Circuit decision is allowed to stand, the courts

will most likely confront lawsuits seeking to enjoin future

delegation of NPDES permitting authority, as well as already

delegated state-administered programs and existing permits.

Indeed, several challenges to state-issued 402 permits are

already underway or threatened based on the alleged failure

to comply with section 7(a)(2) of the ESA. See, e.g.

* The situation in Arizona is illustrative. As noted by FWS in its

biological opinion to EPA regarding the transfer of NPDES permitting to

the Arizona Department of Environmental Quality (“ADEQ”), EPA’s

Region 9 has only two full-time staff involved in permitting. planning,

and coordination activities for Arizona, while ADEQ has ten staff

assigned to water permitting. and is in the process of hiring nine more.

20

Oregon Natural Res. Council v. Hallock, et al., Civil No. 02-

1650-CO, 2006 WL 1142223, *8 (D. Or. Apr. 24, 2006)

(challenging NPDES permit issued by Oregon Department of

Environmental Quality, alleging failure to comply with

section 7(a)(2)); 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 Department of Ecology and Oversight

on Threatened Puget Sound Chinook Salmon, at 3 (Apr. 19,

2006), available at http://www.ecy.wa.gov/programs/wq/

links/educate/attachments to noi/Nofl001.pdf (last visited

Feb. 5, 2007).

Finally, the precedent established by the Ninth Circuit

could very well cause the ESA to be applied to the many

laws, treaties, and agreements that determine how water will

be allocated and, in some cases, used in western states. Those

laws, treaties, and contracts are, like the transfer of NPDES

authority under section 402, mandatory: they dictate how

water from rivers and other sources will be allocated among

various users. The urban, residential, and agricultural sectors

of much of the west are dependent upon these long-settled

water allocation schemes. In many cases, the allocation

decisions mandated by these authorities have ESA

implications. If the ESA trumps the mandatory elements of

the CWA, as the Ninth Circuit has ruled, then these critically

important water rights authorities may also be vulnerable to

legal challenge for failure to comply with section 7(a)(2).

Opening these authorities to ESA application would have

highly disruptive and adverse social, economic, and

environmental consequences throughout the west. Such an

outcome confirms the reasons why section 7(a)(2) must be

limited to discretionary agency actions.

21

WUWC members have devoted considerable

resources—and must continue to do so— to meet growing

water demands in the western United States. These

commitments depend on stability and certainty in the

regulatory process and the allocation of water rights. The

Ninth Circuit’s opinion will likely impact existing and future

permits, not only under the NPDES program, but also under

other federal statutes containing a congressional mandate to

delegate authority to states, and potentially any water-related

legal authority that affects species listed under the ESA. This

Court should avoid these negative consequences by

overturning the Ninth Circuit decision.

CONCLUSION

For the foregoing reasons, amicus curiae WUWC

respectfully requests this Court to reverse the Ninth Circuit's

decision in Defenders. The Ninth Circuit’s opinion

unnecessarily pits the ESA against other programmatic

federal statutes and water allocation authorities by holding

that the ESA implicitly overrides other legal mandates. The

Ninth Circuit’s holding is unnecessary; it is contrary to

existing law; and it will lead to uncertainty for any party

(including the members of WUWC) that depends upon

reliability and predictability in federally-delegated permitting

programs.

22

Respectfully submitted,

BENJAMIN S. SHARP

Counsel of Record

Guy R. MARTIN

PATRICK W. RYAN

ERIc S. MERRIFIELD

PERKINS Cole LLP

607 Fourteenth Street, NW, #800

Washington, DC 20005

(202) 628-6600

Attorneys for Western Urban

Water Coalition

February 20, 2007