Petitioners Brief — Environmental Protection Agency v. Defenders of Wildlife

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Nos. 06-340 and 06-549

In the Supreme Court of the Cnited States

NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL.,

PETITIONERS

DEFENDERS OF WILDLIFE, ET AL.

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

DEFENDERS OF WILDLIFE, ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR PETITIONER

ENVIRONMENTAL PROTECTION AGENCY

PAUL D. CLEMENT

Solicitor General

Counsel of Record

MATTHEW J. MCKEOWN

ROGER R. MARTELLA Acting Assistant Attorney

Acting Goueral Conusel General

MICHAEL G. LEE EDWIN S. KNEEDLER

JULIE K. WALTERS Deputy Solicitor General

Attorneys MALCOLM L. STEWART

Eucvrvonimental Protection Assistant to the Solicitor

Agency Geveval

Washington, D.C. 24460 ANDREW C. MERGEN

DAVID C. SHILTON

Attorneys

De partine wt of Justices

Washington, DC. 20580400]

(202) oly Las Py

QUESTIONS PRESENTED

1. Whether Section 7(a)(2) of the Endangered Spe-

cies Act of 1973, 16 U.S.C. 1536(a)(2), which requires

each federal agency to insure that its actions are not

likely to jeopardize the continued existence of a listed

species or adversely modify its critical habitat, overrides

statutory mandates or constraints placed on an agency’s

discretion by other Acts of Congress.

2. Whether the court of appeals correctly held that

the Environmental Protection Agency’s decision to

transfer pollution permitting authority to Arizona under

the Clean Water Act, see 33 U.S.C. 1342(b), was arbi-

trary and capricious because it was based on inconsis-

tent interpretations of Section 7(a)(2) of the Endangered

Species Act, 16 U.S.C. 1536(a)(2); and, if so, whether the

court of appeals should have remanded to the Environ-

mental Protection Agency for further proceedings

without ruling on the interpretation of Section 7(a)(2).

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TABLE OF CONTENTS

Page

SE pd ccd och cuneekdandekedeneestueteeieessine 1

Jurisdiction ......... L Neehekeskees awhensake sens keuns ]

Statutory and regulatory provisions involved .............. 2

DE dcdnuk pabeceubhlddenhe espe Ueeenherebeeeeees 2

PER ETE ET TOT TTO CTT Te 14

Argument:

1. Approval of Arizona’s transfer application was

compelled by Section 402(b) of the CWA, and

Section 7(a)(2) of the ESA neither authorized

nor required EPA to disregard that statutory

ec aeccuncawancerscesadbsncedesnsescenee 17

A. Section 402(b) of the CWA unambiguously

required EPA to approve Arizona’s

application for transfer of NPDES

ee 17

B. Section 7(a)(2) of the ESA does not

impliedly repeal the CWA’s requirement

that EPA must approve a state transfer

application that satisfies the criteria set

forth in Section 402(b)(1)-9) ...........0005. 19

1. Repeals by implication are disfavored ..... 19

2. Section 7(a)(2)'s no-jeopardy and

consultation requirements apply only

to diseretionary conduct attributable

to the relevant federal agency itself,

which does not include conduct

mandated by another Act of Congress .... 21

(II])

Table of Contents—Continued: Page

II.

3. The development of Section 7 of the

ESA since its original enactment in 1973

confirms that the no-jeopardy

requirement of current Section 7(a)(2)

does not override mandates or

constraints imposed by other Acts of

ate Geeadacedkenhea Naess 29

4. Regulations promulgated by FWS and

NMFS in 1986 reflect the expert

agencies’ view that Section 7(a)(2)’s no-

jeopardy mandate does not apply to

conduct required by another Act of

dhecetdesphebeenkoecess ooke 34

This Court’s decision in TVA v. Hill

does not support the court of appeals’

Rr cae peeany bs beet cehune bee 64 39

EPA’s approval of Arizona’s transfer application

was not arbitrary or capricious, and a remand to the

agency is unnecessary, particularly because EPA,

FWS, and NMPFS have clarified their

understanding of the legal issues presented here ... 41

A. EPA’s initiation of consultation in this

case does not preclude the agencies’

ultimate determination that approval of

the state’s transfer application would not

jeopardize listed species ................0005. 42

B. Although EPA incorrectly stated during

the administrative process that consulta-

tion was required by the ESA, those mis-

statements do not render the challenged

agency action arbitrary or capricious ......... 44

Table of Contents—Continued: Page

C. Aremand for further administrative pro-

ceedings is unnecessary at the present

stage of the case because EPA, F WS, and

NMFS have clarified their current views

concerning the applicability of Section

7(a)(2)’s consultation and no-jeopardy

requirements to transfers of NPDES

poventtting GUtROThy .....cccccccescecevceses 48

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TABLE OF AUTHORITIES

Cases:

American Forest & Paper Ass'n v. United States

EPA, 137 F.3d 291 (5th Cir. 1998) ........... 11, 26, 42

Arkansas v. Oklahoma, 503 U.S. 91 A992) 2.0.0... iseuel

Auer v. Robbins, 519 U.S. 452 (1997) 2.2.2... ee eee 38

Babbitt v. Sweet Home Chapter of Communities

for a Great Or., 515 U.S. 687 (1995) 20.2... eee. 22, 35

Bennett v. Spear, 520 U.S. 154 (1997) .. 00... eee cee eee 22

Bowman Transp. lne. v. Arkansas-Best Freight

Sye., ine, 420 U.S. BR (ISTO) . oo vvkccecesneeea 47

Branch v. Smith, 538 U.S. 254 (2008) ............2205. 19

Burlington N., Line. v. United States, 459 US. 131

(RDG) . oc ccusscesneeunsepee see chan AS

Chevron USA. Ine. v. NRDC, ABT US. 837 (1984) 2... 35

Cases—Continued: Page

Cook County v. United States ex rel. Chandler,

on cok dunucessdeseoeceseseese 33

Department of Transp. v Public Citizen,

PME CUED seccccccececsouces 14, 21, 24, 25, 43

DSE, Inc. vy. United States, 169 F.3d 21 (D.C. Cir.

tt Sitieeieedch Meeeaeewendecsesesenscevsacees 46

_ Environmental Prot. Info. Ctr. v. Simpson Timber

Co., 255 F.3d 1073 (9th Cir. 2001) .. 0.0... 2.00. eee 35

General Chem. Corp. v. United States, 817 F.2d 844

ET hie ininen6bnntedessnceceeesbeues 48

Gonzales v. Thomas, 126 5S. Ct. 1613 (2006) ............ 48

Ground Zero Ctr. for Non-Violent Action v. United

States Dep't of the Navy, 383 F.3d 1082 (9th Cir.

Meee adenine sedeedh$eeesiessoeese 35

INS v. Orlando Ventura, 537 U.S. 12 (2002) ........... 48

Lincoln v. Vigil, 508 U.S. 182 (1993)... eee ee eee 39

Mianus River Preservation Comm. v. Admini-

strator, EPA, 541 F.2d 899 (2d Cir. 1978) ............ 3

Morton v. Mancari, 417 U.S. 535 (1974)... 0. ee eee 19

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto.

Ins. Co., 468 U.S. 29 (1983), cert. denied, 480 U.S.

EE Pe ee 47

Operation of the Mo. River Sys. Litig., ln ve,

421 F.3d 618 (&th Cir. 2005), cert. denied, 126

i CPD <codencceecesecsocceces 26

Platte River Whooping Crane Critical Habitat

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

ES aS re 11, 26

Vil

Cases—Continued: Page

PDK Labs., Inc. v. United States DEA, 362 F 3d 786

SIE accivissnenddesenauewont a hines 45, 46

Posadas v. National City Bank, 296 U.S. 497 (1936) .... 19

Shell Oil Co. v. Train, 085 F.2d 408 (9th Cir. 1978) ...... 3

Sierra Club v. Babbitt, 65 F.3d 1502 (9th Cir.

SE wddscccannseedatasacdnaebddsdesowusaautis 35

Traynor v. Turnage, 485 U.S. 585 (1988) ........... 19, 26

TVA v. Hill, 437 U.S. 158 (1978) ......... 16, 30, 32, 39, 40

Watt v. Alaska, 451 U.S. 259 (1981) ................05- 18

Statutes and regulations:

Act of Dec. 28, 1979, Pub. L. No. 96-1459, $ 4, 93 Stat.

SN eh aad ee ee a es er

Administrative Procedure Act, 5 U.S.C. 706 ........... 45

Endangered Species Act of 1973, Pub. L. No. 93-205,

87 Stat. 884 (16 U.S.C. 1531 et seq.):

PU: EE cucGhdedeuiedsschecsesnteendede 3

16 U.S.C. 1531(e)(1) ($ Wey) ... 2... eee eee 3, 27

16 U.S.C. 1533 (2000 & Supp. IV 2004) ($4) ....... 4

16 U.S.C. 1536 (1976) (§ 7) 22... ... 29, 30, 31, 32, 38

16 U.S.C. 1536 (Supp. IL 1978) (8 7)... eee eee. 31

PAs GPO DP Ste ecnceecesccéacscees passim

16 U.S.C. 1536(a) (Supp. I] 1978) (S 7a). . 31, 32, 33

16 U.S.C. 15360a) (8 Ta)... ee. seiasuuaneetuc 33

16 U.S.C. 1536(a)1) (8 Tia)... 4, 27, 28, 30, 31, 33

16 US.C. 15860a2) (8 Tant2)) 20.0 eee. passim

16 U.S.C. 1536(bM3) (8 T(DM3)) . 2... ee ee ee 33

16 ULS.C. La360b 3) A) (8 TOS ADD oe 1,5, 28

Vill

Statutes and regulations—Continued: Page

Ss ME iidcvetreneddeccwsetaccons 28

16 U.S.C. 1536(gS MAMI) 2... ee ee ee eee ee eee 29

BD is PEEPENED dS ctedencuccccuccncessecsees 22

BR LEE. Se BD ci cccccvcccctoccccsccesees 22

Endangered Species Act Amendments of 1978, Pub.

L. No. 95-632, 92 Stat. 3751:

§ 3:

92 Stat. 3752 (16 U.S.C. 1536 (Supp. II

DT cuusdee bnsdeunedenemiaeivexbees 32

92 Stat. 3752 (16 U.S.C. 1536(a) (Supp. II

DD tcbvened renensénsneeuseseiadueas 32

92 Stat. 3753-3760 (16 U.S.C. 1536(e)-(q)

(Supp. 11 1978)) ..........2ecceeeceeeee- 33

i i dco ted etepedi nice anaenends ce 33

Endangered Species Conservation Act of 1969, Pub.

L. No. 89-669, § 1(b), 80 Stat. 926 (repealed by

Endangered Species Act of 1973, Pub. L. No. 93-

cc datcdddevetudesaneseeds 40

Federal Water Pollution Control Act Amendments of

1972, Pub. L. No. 92-500, 86 Stat. $16, as amended,

Pub. L. No. 95-217, 91 Stat. 1566 (33 U.S.C. 1251

BERD ccccnccnsenccovesceussecsaccececeseneceess 2

SPU SED ccccncccccvcesesseneescseedéese 2

ME Sc dneveccende dns co¢eccdcuens GEG

PCy EE on cnecesececesceenncassecenes 2, 20a

33 U.S.C. 1342(b) (§ 402(b)) ..............- passim

33 U.S.C. 1342¢b)(1)-9)

INURE cccccccdcccescccccce te Been

Statutes and regulations—Continued: Page

Ss ED 4 vencneeecesesvenanasee’ 3

ee 45

es EDs cect dauawksdeesecsanne 10

National Environmental Policy Act of 1969, 42 U.S.C.

DT, hdndiuudducedbannbenktndienaseeunenene 24

50 C.F.R.:

Pt. 17:

SE a4 be eknnscndsédentdsadeauescheteeoes 4

Pt. 222:

ccc acctinemedonnceusinenses 4

Pt. 223: .

EE Gecduovckedadccdaedsasskenuesess 4

FOG co ciccevcscvcvcvcenccssccesvescesssecescses 5

EE, cncveceudeseniseenesenedssaces 4

Section 402.02 ..... Ato cereresceceeseccees passim

SE écccstovdesndecostsaceesnne passim

EE voeneseusctd<éauneessoneseveences 2,5

Section 402.14(g) .............. Labvesetssuenees 5

ED cckcectsenaudhoestsdaunaseseen 5

ED oc ccckeuggescueusabeueseeees 5

Section 402.14(h)(3) ...........6.. TOPCTTTTTTTTe HY

Miscellaneous:

SPAR, TE: GRP GUED oc cccccccsencocssess 30, 40

61 Fed. Reg. (1996):

EE Sinstdebskéedcdeueesiceciscecusensaene 45

TTD sac cvccctuevesoseceseceeenesoses 45

Miscellaneous—Continued: Page

RET c6nccenvansasececidendeecdienegeunenees 45

EEE ededkapusensivasnenssencsnesesannesteus 45

63 Fed. Reg. 33,657-33,658 (1998) ............0-0. eee 45

64 Fed. Reg. (1999):

SUE cdAeenekhets nebéeebasicdvadeeeueebeebes 45

Ey cicabeshstaveoucnsansscneaesaaee 45

65 Fed. Reg. 50,529-50,530 (2000) 2.2.0... 0.0.06. eee 6

66 Fed. Reg. (2001):

DRED: Kid chGwepdsaseevk<sts iasseudadsbcueneuks 45

i SE 6 ac edbbdusessesecdcedesecnsnade 45

70 Fed. Reg. 5461-5462 (2005) .............. cece ee eee 7

ee ED 6 ccudsckeeensdsessunconceds 7

H.R. 37, 98d Cong., Ist Sess. (1973) ...........ecceees 30

H.R. Conf. Rep. No. 1804, 95th Cong., 2d Sess. (1978) . . . 32

H.R. Rep. No. 412, 93d Cong., Ist Sess. (1973) ......... 30

S. 1983, 98d Cong., Ist Sess. (1973) ............2.2005: 40

Jn the Supreme Court of the Cinited States

No. 06-340

NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL.,

PETITIONERS

DEFENDERS OF WILDLIFE, ET AL.

No. 06-549

ENVIRONMENTAL PROTECTION AGENCY, PETITIONER

DEFENDERS OF WILDLIFE, ET AL.

ON WRITS OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR PETITIONER

ENVIRONMENTAL PROTECTION AGENCY

OPINION BELOW

The opinion of the court of appeals (06-549 Pet. App.

la-67a) is reported at 420 F.5d 946.

JURISDICTION

The judgment of the court of appeals was entered on

August 22, 2005. Petitions for rehearing were denied on

June 8, 2006 (06-549 Pet. App. 68a-69a). The petition for

a writ of certiorari in No. 06-340 was filed on September

6, 2006. On August 30, 2006, Justice Kennedy extended

(1)

the time for the Environmental Protection Agency

(EPA) to file a petition for a writ of certiorari to and

including October 6, 2006. On September 27, 2006, Jus-

tice Kennedy further extended the EPA’s time to Octo-

ber 23, 2006, and the petition for a writ of certiorari in

No. 06-549 was filed on that day. The petitions were

granted on January 5, 2007. The jurisdiction of this

Court rests on 28 U.S.C. 1254(1).

STATUTORY AND REGULATORY PROVISIONS

INVOLVED

The following statutory and regulatory provisions

are set forth in an appendix to this brief: 16 U.S.C.

1536, 33 U.S.C. 1342(b), 50 C.F.R. 402.02, 402.03, and

402.14.

STATEMENT

1. This case involves a transfer of administrative

authority under the Federal Water Pollution Control

Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat.

816, as amended, Pub. L. No. 95-217, 91 Stat. 1566 (383

U.S.C. 1251 et seg.) (Clean Water Act or CWA). The

CWA “anticipates a partnership between the States and

the Federal Government, animated by a shared objec-

tive: ‘to restore and maintain the chemical, physical,

and biological integrity of the Nation’s waters.” Arkan-

sas v. Oklahoma, 503 U.S. 91, 101 (1992) (quoting 33

U.S.C. 1251(a)). Under the CWA, the National Pollutant

Discharge Elimination System (NPDES) is adminis-

tered by the Environmental! Protection Agency (EPA)

unless and until authority to administer the program

within a particular State is transferred to state officials.

See 33 U.S.C. 1342. The CWA states.that “i]t is the

policy of the Congress to recognize, preserve, and pro-

tect the primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution.” 33 U.S.C.

1251(b).

Section 402(b) of the CWA provides that “the Gover-

nor of each State desiring to administer its own permit

program for discharges into navigable waters within its

jurisdiction may submit to |EPA] a full and complete

description of the program it proposes to establish and

administer under State law or under an interstate com-

pact.” 33 U.S.C. 1342(b). The CWA further states that

EPA “shall approve each submitted program unless [it]

determines that adequate authority does not exist” to

ensure that nine specified criteria are satisfied. /bid.;

see 35 U.S.C. 1342(b)(1)-(9).. Those criteria are ad-

dressed to whether the responsible state agency has the

requisite authority under state law to administer the

NPDES program. Section 402(b) thus prescribes “a

system for the mandatory approval of a conforming

State program.” Shell Oil Co. v. Train, 585 F.2d 408,

410 (9th Cir. 1978) (quoting Mianus River Preservation

Comm. v. Administrator, EPA, 541 F.2d 899, 905 (2d

Cir. 1976)); see 33 U.S.C. 1251(b) (“It is the policy of

Congress that the States * * * implement the permit

program|| under section|] 1342 * * * of this title.”).

After NPDES permitting authority has been trans-

ferred to state officials, EPA can object to a state-issued

permit only if it is “outside the guidelines and require-

ments” of the CWA. 33 U.S.C. 1342(d)(2)(B).

2. Congress enacted the Endangered Species Act of

1973 (ESA) to protect and conserve endangered and

threatened species. 16 U.S.C. 1531(b). Section 2(¢)(1) of

the ESA, 16 U.S.C. 1531(¢)(1), states that it is “the pol-

icy of Congress that all Federal departments and agen-

cies shall seek to conserve endangered species and

threatened species and shall utilize their authorities in

furtherance of the purposes of this chapter.” Section 4

of the ESA directs the Secretaries of Commerce and the

Interior to list threatened and endangered species and

to designate their critical habitats. See 16 U.S.C. 1533

(2000 & Supp. IV 2004). The National Marine Fisheries

Service (NMFS) administers the Act with respect to

species under the jurisdiction of the Secretary of Com-

merce. See 50 C.F.R. 222.101(a), 223.102. The Fish and

Wildlife Service (FWS) implements the ESA with re-

spect to species under the jurisdiction of the Secretary

of the Interior. See 50 C.F.R. 17.11, 402.01(b).

Section 7 of the ESA, 16 U.S.C. 1536, is entitled “In-

teragency cooperation.” Section 7(a)(1) states that

“(tlhe Secretary |of Commerce or the Interior] shall

review other programs administered by him and utilize

such programs in furtherance of the purposes of this

chapter,” and that “[a]ll other Federal agencies shall, in

consultation with and the assistance of the Secretary,

utilize their authorities in furtherance of the purposes of

this chapter by carrying out programs for the conserva-

tion of endangered species and threatened species.” 16

U.S.C. 15386(a)(1). Section 7(a)(2) states that “[e]ach

Federal agency shall, in consultation with and with the

assistance of the Secretary, insure that any action au-

thorized, funded, or carried out by such agency (herein-

after in this section referred to as an ‘agency action’) is

not likely to jeopardize the continued existence of any

endangered species or threatened species.” 16 U.S.C.

1556(a)(2).

Section 7(b)(3)(A) of the ESA states that, once the

consultation process contemplated by Section 7(a)(2) has

been completed, “the Secretary shall provide to the Fed-

eral agency and the applicant, if any, a written state-

ment setting forth the Secretary's opinion, and a sum-

mary of the information on which the opinion is based,

detailing how the agency action affects the species or its

critical habitat.” 16 U.S.C. 1536(b)(3)(A). Section

7(b)(3)(A) further provides that, “liJf jeopardy or ad-

verse modification is found, the Secretary shall suggest

those reasonable and prudent alternatives which he be-

lieves would not violate subsection (a)(2) of [Section 7]

and can be taken by the Federal agency * * * in imple-

menting the agency,action.” /bid.

Regulations promulgated jointly by the Secretaries

of Commerce and the Interior furnish a structure for

consultation concerning the likely effects on listed spe-

cies of proposed federal actions. See 50 C.F.R. Pt. 402.

Inter alia, the regulations establish a process of “formal

consultation,” see 50 C.F.R. 402.14, which culminates in

the issuance of a biological opinion (BiOp), see 50 C.F-.R.

402.14(h), that includes a “detailed discussion of the ef-

fects of the action on listed species or critical habitat,”

50 C.F.R. 402.14(h)(2). The BiOp assesses the likelihood

of jeopardy to listed species and whether the proposed

action will result in destruction or adverse modification

of designated critical habitat. See 50 C.F.R. 402.14(g).

If FWS or NMFS determines that the action as pro-

posed is likely to jeopardize a listed species, it is re-

quired to identify “reasonable and prudent alternatives,

if any,” that will avoid jeopardy. 50 C.F.R. 402.14(h)(3).

In order to qualify as a “reasonable and prudent alterna-

tive” as defined in the regulations, an alternative course

of action must be capable of implementation in a manner

“consistent with the scope of the Federal agency’s legal

authority and jurisdiction.” 50 C.F.R. 402.02. The regu-

lations define the term “effects of the action” to include

“indirect effects,” /.¢., “those that are caused by the pro-

posed action and are later in time, but still are reason-

ably certain to occur.” /bid. The regulations further

provide that “Section 7 and the requirements of this part

apply to all actions in which there is discretionary Fed-

eral involvement or control.” 50 C.F.R. 402.03.

3. Before 1993, EPA had not engaged in consultation

pursuant to Section 7(a)(2) of the ESA when considering

state applications for transfer of NPDES permitting

authority under Section 402(b) of the CWA. See 06-549

Pet. App. 7a n.3. In that year, however, EPA engaged

in consultation before approving South Dakota’s trans-

fer application, and it subsequently consulted with re-

spect to applications submitted by Florida, Louisiana,

Oklahoma, Texas, and Maine. See ibid. In 2001, EPA,

FWS, and NMFS entered into a “Memorandum of

Agreement |MOA| * * * Regarding Enhanced Coordi-

nation Under the Clean Water Act and Endangered

Species Act.” 06-340 Pet. App. 245-317. The MOA ad-

dressed a number of different areas of interaction

_among the agencies. The MOA noted that “EPA’s cur-

rent practice is to consult with the Services where EPA

determines that approval of a State’s or Tribe’s applica-

tion to administer the NPDES program may affect fed-

eral listed species,” and it stated that the three agencies

would “continue to conduct such consultation on a case-

by-case basis.” /d. at 260.

In January 2002, Arizona officials requested EPA’s

authorization to administer the NPDES program in that

State. 06-549 Pet. App. 7a. EPA had previously granted

such authorization to 43 other States (and the Virgin

Islands). See 65 Fed. Reg. 50,529-50,530 (2000) (listing

then-approved States). Consistent with the MOA, EPA

subsequently initiated consultation with FWS concern-

ing the likely effects on listed species of the proposed

transfer of permitting authority. See 06-340 Pet. App.

559. The EPA regional office prepared and forwarded

to FWS a biological evaluation, see id. at 587-623, which

concluded that Arizona’s Water Quality Standards

would provide adequate protection to aquatic species,

see id. at 615-616. EPA also found that its oversight of

the State’s program would ensure that the State contin-

ued to meet CWA requirements, including those for the

protection of fish, shellfish, and wildlife. Jd. at 616.

The FWS regional office staff members who received

EPA’s biological evaluation agreed with EPA that the

proposed transfer of permitting authority would not

result in water-quality-related impacts that would ad-

versely affect listed species in Arizona. See 06-340 Pet.

App. 564. F WS staff expressed a concern, however, that

transfer of the NPDES program to the State could re-

sult in certain indirect adverse effects on listed non-

aquatic species, such as the cactus ferruginous pygmy-

owl and the Pima pineapple cactus. See id. at 562.’ In

its own administration of the CWA, EPA would consider

the non-water-quality-related impacts of associated de-

velopment in deciding whether EPA would issue a CWA

permit. See id. at 563, 566, 576-577. EPA would consult

with FWS pursuant to Section 7(a)(2) of the ESA con-

cerning the potential effects of development not only on

listed aquatic species but also on listed terrestrial spe-

cies, and it might deny an application for a discharge

permit based on the likely effects on terrestrial species

of the associated development. See jd. at 566,577. EPA

staff believed, however, that if administration of the

' In April 2006, FWS removed the pygmy-owl from the list of en-

dangered and threatened species. See 71 Fed. Reg. 19.452. The Pima

pineapple cactus is currently being reviewed to determine whether it is

- . -

a Valid taxonomic entity. See 70 Fed. Reg. 54161-5462 (2005).

NPDES program in Arizona were transferred to state

officials, EPA would lack the legal authority under the

CWA to object to state permits based on non-water-

quality-related impacts on listed species. See zd. at 564.

And because Section 7(a)(2) of the ESA applies only to

federal agency action, Arizona officials implementing

the NPDES program pursuant to the proposed transfer

of authority would not be subject to that provision’s no-

jeopardy mandate and would not be required to consult

with FWS concerning the effects on listed species of

individual permitting decisions. See id. at 563.

F'WS regional staff urged that the consultation pro-

cess concerning the proposed transfer of NPDES per-

mitting authority to Arizona should include an assess-

ment of the potential impact on terrestrial species that

(in FWS staff’s view) would result from the inapplicabil-

ity of Section 7(a)(2) to Arizona’s future permitting ac-

tivities. See 06-340 Pet. App. 565. EPA staff, by con-

trast, took the position that the transfer of authority

could not properly be regarded as the cause of any ad-

verse effects on terrestrial species that might result

from subsequent development in Arizona, both because

the link between the two is speculative and attenuated

as a factual matter, and because the CWA directs EPA

to approve a State’s application to assume administra-

tion of the NPDES program if the criteria in Section

402(b) of the CWA are met. See id. at 564-565. Pursu-

ant to procedures set forth in the MOA, that dispute was

elevated for resolution at higher levels within the agen-

cies. See 7d. at 562.

On December 3, 2002, FWS issued its BiOp, which

concluded that the requested transfer of NPDES per-

mitting authority would not cause jeopardy to listed spe-

cies. 06-340 Pet. App. 77-124. FWS stated that, “[a]fter

further reflection and analysis of causation and the defi-

nition of indirect effects found in our Consultation

Handbook, our final opinion is that the loss of section 7-

related conservation benefits is not an indirect effect of

the approval action.” /d. at 112. FWS explained, inter

alia, that the

loss of any conservation benefit is not caused by

EPA’s decision to approve the State of Arizona’s pro-

gram. Rather, the absence of the section 7 process

that exists with respect to Federal NPDES permits

reflects Congress’ decision to grant States the right

to administer these programs under state law pro-

vided the State’s program meets the requirements of

402(b) of the Clean Water Act.

Id. at 114. FWS also concluded that, even if the effects

of the transfer on listed species could properly be attrib-

uted to EPA, other mechanisms were sufficient to sup-

port the conclusion that the transfer of NPDES permit-

ting authority was not likely to jeopardize a listed spe-

cies. See id. at 101-108.

After FWS issued the BiOp, EPA approved the

transfer of permitting authority to Arizona. C.A. App.

232; see 06-340 Pet. App. 69-76. EPA found that Ari-

zona’s application satisfied each of the criteria for pro-

gram approval specified in Section 402(b) of the CWA.

C.A. App. 258. In the Federal Register notice that an-

nounced the approval of Arizona’s transfer application,

EPA stated that the issuance of the FWS biological

opinion had “conclude[d] the consultation process re-

quired by ESA section 7(a)(2) and reflects the Service's

agreement with EPA that the approval of the State pro-

gram meets the substantive requirements of the FSA.”

06-340 Pet. App. 73.

4. Respondents filed a petition for review in the

court of appeals, contending that EPA had acted arbi-

trarily and capriciously by approving Arizona’s request

for authority to administer the NPDES program.” The

court of appeals granted the petition for review. 06-549

Pet. App. la-67a.

a. The court of appeals first held that EPA’s ap-

proval of Arizona’s transfer application was arbitrary

and capricious because EPA had “relied during the ad-

ministrative proceedings on legally contradictory posi-

tions regarding its section 7 obligations.” 06-549 Pet.

App. 23a; see id. at 23a-28a. The court explained that,

although EPA had construed Section 7 of the ESA as

requiring it to consult with FWS concerning the effect

on listed species of the proposed transfer of permitting

authority, FWS’s no-jeopardy opinion was based in part

on the premise that EPA cannot deny a transfer applica-

tion under Section 402(b) of the CWA based on ESA

concerns if the CWA criteria are satisfied. See id. at

23a-26a. The court concluded that EPA’s approval of

the transfer application “was not the result of reasoned

decisionmaking” because “the two propositions that un-

derlie the EPA’s action—that (1) it must, under the

[ESA], consult concerning transfers of CWA permitting

authority, but (2) it is not permitted, as a matter of law,

to take into account the impact on listed species in mak-

ing the transfer decision—cannot both be true.” /d. at

26a-27a. The court stated that it was therefore required

to “remand to the agency for a plausible explanation of

* Petitioners also filed a complaint in district court challenging the

FW BiOp. The district court determined that the court of appeals had

exclusive jurisdiction over that challenge pursuant to 33 U.S.C.

1369(b)(1)D), and it transferred the claim to the court of appeals. 06-

DAY Pet. App. La.

its decision, based on a single, coherent interpretation of

the statute.” /d. at 28a.

b. Rather than, in fact, remanding the case on that

ground, however, the court of appeals went on to hold

that EPA had both the power and the duty under the

ESA to determine whether transfer of NPDES permit-

ting authority to state officials would jeopardize listed

species, and to deny a transfer application if it found

jeopardy to be likely. 06-549 Pet. App. 28a-48a. The

court recognized that it is undisputed in this case that

the State of Arizona had satisfied the criteria (see 35

U.S.C. 1342(b)(1)-(9)) that trigger the requirement in

Section 402(b) of the CWA that EPA “shall” approve a

State’s transfer application. See 06-549 Pet. App. 3la

n.11. The court concluded, however, that Section 7 of

the ESA provides an “affirmative grant of authority to

attend to protection of listed species,” over and above

whatever obligations federal agencies may have under

their own governing statutes. /d. at 34a; see id. at 38a-

39a. The court of appeals found that authority to be un-

affected by the CWA’s directive that EPA “shall ap-

prove” state applications that satisfy the criteria set

forth in Section 402(b). See 06-549 Pet. App. 40a.”

The court of appeals also rejected the contention,

advanced by non-federal parties who had intervened in

support of EPA, that EPA’s approval of the State’s

’ The Ninth Circuit acknowledged that its resclution of the interpre-

tive question presented here conflicts with decisions of two other courts

of appeals. See 06-549 Pet. App. 46a-47a (citing American Forest &

Paper Ass’n v. United States EPA, 137 F.3d 291 (5th Cir. 1998), and

Platte River Whooping Crane Critical Habitat Maint. Trust v. FERC,

962 F.2d 27 (D.C. Cir. 1992)). The court believed, however, that its

holding was supported by Ninth Circuit precedent and decisions of two

other courts of appeals. 06-549 Pet. App. 42-'8a, 44a-déa, 47a-48a.

transfer application was not subject to Section 7 of the

ESA because it was not a “discretionary” action within

the meaning of 50 C.F.R. 402.03. See 06-549 Pet. App.

40a-43a. The court construed that regulation’s refer-

ence to “discretionary” action to encompass all agency

actions that are “authorized, funded, or carried out” by

the agency. /d. at 43a (quoting 16 U.S.C. 1536(a)(2)).

The court reached that conclusion despite the govern-

ment’s repeated request to have the opportunity for ad-

ditional briefing on the question if the court, contrary to

the suggestion of the government, decided to reach the

issue. See id. at 43a n.19."

ec. Judge Thompson dissented, relying on 50 C.F.R.

402.03 and on an array of Ninth Circuit precedents hold-

ing that Section 7(a)(2) of the ESA does not encompass

agency conduct as to which the agency lacks discretion.

See 06-549 Pet. App. 63a-67a. Judge Thompson ex-

plained:

Here, the EPA did not have discretion to deny trans-

fer of the pollution permitting program to the State

of Arizona; therefore its decision was not “agency

action” within the meaning of section 7 of the Endan-

gered Species Act. The Clean Water Act, by its very

terms, permits the EPA to consider only the nine

specified factors. If a state’s proposed permitting

program meets the enumerated requirements, the

EPA administrator “shall approve” the program. 33

U.S.C. § 1342(b). This Congressional directive does

not permit the EPA to impose additional conditions.

* The court of appeals also held that the other bases for FWS's no-

jeopardy conclusion did not adequately support EPA's decision to

approve the transfer. ‘See 06-549 Pet. App. 48a-6]a.

Id. at 65a-66a (footnote omitted). Judge Thompson con-

cluded that, because “{tJhe EPA’s authority to grant or

to deny the State of Arizona’s application to administer

the pollution permitting program was nondiscretionary,”

the petition for review should be denied. /d. at 67a.

d. The court of appeals denied rehearing and re-

hearing en banc, with six judges dissenting. 06-549 Pet.

App. 68a-92a. Judge Kozinski, writing for the dissenting

judges, took issue with the majority’s determination that

EPA’s analysis was internally inconsistent. /d. at 7la-

72a. The dissenting judges further stated that, if EPA’s

approach had in fact been tainted by such inconsistency,

“the majority should have remanded to EPA for further

clarification” rather than deciding the merits question

itself. /d. at 72a. With respect to the proper reconcilia-

tion of the relevant statutory provisions, the dissenting

judges concluded that, so long as the nine criteria set

forth in Section 402(b) of the CWA were satisfied, Sec-

tion 7 of the ESA neither allowed nor required EPA to

deny Arizona’s application for transfer of permitting

authority. /d. at 75a-76a. The dissenting judges ob-

served that, “|i]f the ESA were as powerful as the ma-

jority contends, it would modify not only EPA’s obliga-

tion under the CWA, but every categorical mandate ap-

plicable to every federal agency.” /d. at 78a n.4.

5. In October 2006, after the court of appeals denied

rehearing in this case, the relevant federal agencies

clarified their positions concerning the applicability of

Section 7(a)(2) of the ESA to EPA’s NPDES transfer

decisions under the CWA. The State of Alaska had sub-

mitied an application for transfer of NPDES permitting

authority to EPA in July 2006. In connection with that

application, EPA requested confirmation from FWS and

NMFS of EPA’s current view that. because Section

402(b) of the CWA denies EPA discretion to do anything

other than approve the State’s application if the CWA

criteria are satisfied, the decision whether to approve

the transfer is not subject to the no-jeopardy and con-

sultation requirements of Sectiun 7(a)(2) of the ESA.

See 06-549 Pet. App. 93a-102a. FWS and NMFS con-

firmed that they share that understanding of the rele-

vant statutory provisions. See id. at 103a-ll6a. FWS

and NMFS further confirmed that, because the CWA

requires that transfer applications must be granted un-

der specified circumstances, EPA lacks “discretionary

Federal involvement or control,” within the meaning of

50 C.F.R. 402.03, over the transfer decision once the

CWA criteria are met, and EPA’s approval is not the

legal “cause|],” within the meaning of 50 C.F.R. 402.02,

of any impacts on listed species that may result from a

state-issued NPDES permit. See 06-549 Pet. App. 105a-

106a, 109a-110a, 114a-115a.

SUMMARY OF ARGUMENT

I. Section 402(b) of the CWA provides without quali-

fication that EPA “shall” approve a State’s application

for transfer of NPDES permitting authority if the crite-

ria set forth in the CWA are met. Section 7(a)(2) of the

ESA does not impliedly repeal that directive, even in

situations where the transfer of authority might entail

possible jeopardy to listed species. Section 7(a)(2) ap-

plies only to conduct that is attributable to the federal

agency itself, and any consequences that may follow

from an agency’s compliance with a mandatory statutory

directive are attributable to Congress rather than to the

agency. That causation analysis is strongly supported

by this Court’s recent decision in Department of Trans-

portation v. Public Citizen, 541 U.S. 752 (2004), which —

held in a related context that a federal agency cannot be

considered the legal cause of effects that it lacks statu-

tory authority to prevent. That reading of Section

7(a)(2) is reinforced by other ESA provisions, which

channel federal agencies’ exercise of existing discretion-

ary authority but do not confer new powers, and it

avoids unnecessary conflicts between the ESA and other

Acts of Congress.

The development of Section 7 of the ESA since its

enactment in 1973 confirms this reading of Section

7(a)(2) in its current form. Under the 1973 statute, the

duty of federal agencies to avoid jeopardizing listed spe-

cies was explicitly identified as one means by which

agencies should “utilize their authorities.” That lan-

guage reflected a clear congressional intent that Section

7 would limit the agencies’ exercise of existing authori-

ties but would not grant agencies new power to disre-

gard mandatory statutory obligations. Although the

current Section 7(a)(2) does not contain the phrase “uti-

lize their authorities,” the legislative history of the rele-

vant ESA amendments and the circumstances under

which they were enacted make clear that those amend-

ments were not intended to alter or expand the scope of

federal agencies’ responsibilities under Section 7.

Longstanding regulations promulgated by FWS and

NMFS reflect the expert agencies’ view that Section

7(a)(2)’s no-jeopardy mandate does not apply to conduct

required by another Act of Congress. ‘hose regulations

direct federal agencies to focus on species-related ef-

fects “caused” by their own actions, 50 C.F.R. 402.02,

and they state that Section 7’s requirements apply to

agency conduct “in which there is discretionary Federal

involvement or control,” 50 C.F.R. 402.03. Those regula-

tions reflect a reasonable construction of the statutory

text and are entitled to deference from a reviewing

court. Contrary to the view of the court of appeals, this

Court’s decision in TVA v. Hill, 437 U.S. 153 (1978), does

not cast doubt on the agencies’ understanding of Section

7(a)(2). The decision in Hill makes clear that Section

7(a)(2)’s no-jeopardy mandate supersedes contrary

agency policy judgments concerning the appropriate

exercise of discretionary authority. But because the

agency action (operation of a dam) at issue in Hill was

not mandated by any Act of Congress, the Court had no

occasion to address the question presented here.

II. Contrary to the court of appeals’ conclusion,

EPA’s approval of Arizona’s transfer application was not

rendered arbitrary and capricious either by the agency’s

initiation of consultation or by its erroneous statements

that consultation was legally required. EPA’s misstate-

ments did not prejudice respondents because they did

not affect the outcome of the proceedings. Nor did those

statements obscure the rationale for the agencies’ ulti-

mate no-jeopardy determination in a way that would

hinder effective judicial review. During the course of

the consultation process, EPA anc FWS both concluded

that EPA’s approval of the transfer application should

not be regarded as a cause of any harm to listed species

that might occur under the state permitting regime be-

cause the transfer was mandated by the CWA. The agen-

cies’ basic chain of reasoning was therefore clear, even

though EPA did not initially perceive the full implica-

tions of that causation analysis. In any event, the agen-

cies have since clarified their views on the question pre-

sented here.

ARGUMENT

I. APPROVAL OF ARIZONA'S TRANSFER APPLICATION

WAS COMPELLED BY SECTION 402(b) OF THE CWA,

AND SECTION 7(a)(2) OF THE ESA NEITHER AUTHO-

RIZED NOR REQUIRED EPA TO DISREGARD THAT

STATUTORY MANDATE

A. Section 402(b) Of The CWA Unambiguously Required

EPA To Approve Arizona's Application For Transfer Of

NPDES Permitting Authority

Section 402(b) of the CWA authorizes the Governor

of a State to “submit to [EPA] a full and complete de-

scription of the |NPDES] program it proposes to estab-

lish and administer under State law or under an inter-

state compact.” 33 U.S.C. 1342(b). A State that seeks to

administer the NPDES program must also submit a

statement from the appropriate legal officer of the State

“that the laws of such State * * * provide adequate

authority to carry out the described program.” /bid.

Section 402(b) provides that EPA “shall approve each

submitted program unless [it] determines that adequate

authority does not exist” under state law to perform

nine specified categories of functions in connection with

the administration of the program. /b'd.; see 33 U.S.C.

1342(b)(1)-(9).

The CWA thus unqualifiedly directs EPA to approve

a State’s application for transfer of NPDES permitting

authority “unless” the State fails to satisfy one or more

of the requirements set forth in Section 402(b)(1)-(9).

Although EPA’s determination whether those standards

are met in a particular instance may involve the exercise

of judgment, EPA does not possess discretion under the

CWA to deny a state application, or condition its ap-

proval of such an application, based on considerations

other than the enumerated criteria. See 06-549 Pet.

App. 82a (Kleinfeld, J., dissenting from denial of rehear-

ing en banc) (“The ‘shall/unless’ formula makes the nine

condition list exclusive.”). In the instant case, “[n]o

party questioned the EPA’s determination that Ari-

zona’s transfer application met the Clean Water Act fac-

tors.” Jd. at 3la n.11. Under the plain terms of the

CWA, EPA was therefore required to approve the

State’s application.

Respondents contend (Br. in Opp. 25) that the CWA

and ESA may be harmonized by holding that EPA must

both “apply the CWA criteria” and “insure” against

jeopardy to listed species. In a similar vein, Judge

Berzon suggested that, under the interpretive approach

adopted by the court of appeals, the ESA does not im-

pliedly repeal any part of the CWA but simply “adds one

requirement to the list of considerations under the

Clean Water Act permitting transfer provision.” 06-549

Pet. App. 87a n. 2 (Berzon, J., concurring in the order

denying the petition for rehearing en banc). That analy-

sis is misconceived.

Section 402(b) of the CWA does not simply establish

minimum prerequisites for the transfer of NPDES per-

mitting authority to state officials, leaving EPA with

discretion to determine which conforming applications

will be approved. Rather, consistent with the overall

statutory policy that States should have the “primary

responsibilities and rights * * * to prevent, reduce,

and eliminate pollution” under the CWA, 33 U.S.C.

1251(b), and that States should implement the NPDES

program in particular, see tbid., Section 402(b) man-

dates approval of any state application that meets the

specified criteria. If EPA denies a state transfer appli-

cation that satisfies the requirements of Section

402(b)(1)-(9), the agency is not “applyling]” the CWA,

but rather is acting ultra vires and violating the CWA

directive that such applications “shall” be approved.

And the ultimate consequence of the court of appeals’

“addlition|” of a tenth criterion to the list contained in

Section 402(b)(1)-(9) was that the court vacated an ad- ~

ministrative action that the CWA required EPA to take.

B. Section 7(a)(2) Of The ESA Does Not Impliedly Repeal

The CWA’s Requirement That EPA Must Approve A

State Transfer Application That Satisfies The Criteria

Set Forth In Section 402(b)(1)-(9)

As we explain above, the court of appeals’ disposition

of this case is flatly contrary to the unambiguous terms

of the CWA. The court’s decision cannot reasonably be

viewed as harmonizing the two statutory provisions at

issue here. Rather, in practical effect, the court treated

Section 7(a)(2) of the ESA as impliedly repealing the

CWA’s directive that EPA “shall approve” a state trans-

fer application unless EPA finds that the application

does not satisfy the CWA criteria. See 06-549 Pet. App.

78a-79a n.4 (Kozinski, J., dissenting from denial of re-

hearing en banc). That holding is erroneous.

I. Repeats by implication are disfavored

“[R]epeals by implication are not favored,” and “|t|he

intention of the legislature to repeal must be clear and

manifest.” Watt v. Alaska, 451 U.S. 259, 267 (1981) (ei-

tations and internal quotation marks omitted). The

Court has explained that

Jijt is a basic principle of statutory construction that

a statute dealing with a narrow, precise, and specific

subject is not submerged by a later enacted statute

covering a more generalized spectrum, unless the

later statute expressly contradicts the original act or

unless such a construction is absolutely necessary in

order that the words of the later statute shall have

any meaning at all.

Traynor v. Turnage, 485 U.S. 535, 547-548 (1988) (cita-

tions, brackets, ellipses, and internal quotation marks

omitted); see Branch v. Smith, 538 U.S. 254, 273 (2003)

(“An implied repeal will be found only 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.”) (internal quota-

tion marks omitted); Posadas v. National City Bank,

296 U.S. 497, 504 (1936). “[W]hen two statutes are capa-

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

clearly expressed congressional intention to the con-

trary, to regard each as effective.” Morton v. Mancari,

417 U.S. 535, 551 (1974).

Because Section 402(b) of the CWA deals with the

“narrow, precise, and specific subject” (Traynor, 485

U.S. at 548) of state transfer applications under the

NPDES program, Section 7(a)(2) of the ESA should not

be deemed to override the CWA’s specification of the

circumstances in which such applications can be denied

unless the text of Section 7(a)(2) unambiguously compels

that result. Indeed, as a general matter, Section 7(a)(2)

should be construed in a manner that avoids conflicts

with other Acts of Congress if such a construction is

fairly possible. in a choice between (1) a statute that

effectively allows an agency to consider on/y nine spe-

cific factors in acting on a particular application (and in

a context where federalism concerns and an interest in

respecting the state applicants loom large), and (2) gen-

eral language injecting jeopardy considerations into a

whole range of agency decisionmaking, the need to en-

force the specific, mandatory, and exclusive language is

clear. More broadly, the path to harmonization lies in

construing Section 7(a)(2) as channelling the exercise of

federal agencies’ existing discretionary authority, not as

overriding the mandatory language of other statutes or

adding a tenth criterion where Congress clearly speci-

fied nine. That reading, which allows Section 7(a)(2) of

the ESA to be harmonized with Section 402(b) of the

CWA and with other statutory mandates, is consistent

with the text and history of Section 7(a)(2) and with the

interpretive principles set forth above.”

2. Section 7(a)(2)’s no-jeopardy and consultation re-

quirements apply only to discretionary conduct at-

tributable to the relevant federal agency itself, which

does not include conduct mandated by another Act of

Congress

a. Section 7(a)(2) of the ESA requires each federal

agency to “insure that any action authorized, funded, or

carried out by such agency * * * is not likely to jeop-

ardize the continued existence of any endangered spe-

cies or threatened species.” 16 U.S.C. 1536(a)(2). Be-

cause the word “jeopardize” obviously requires + causal

link between the agency’s own decisions and jeonardy to

* Even if an ageney’s performance of a duty imposed by another

federal statute could be said to violate Section 7(a)(2), it would not

necessarily follow that Section 7(a2)'s no-jeopardy mandate super-

sedes all competing statutory directives. Rather, in any case where the

ESA prohibited conduct that another Act of Congress required, the

court would need to perform a conflict-of-laws analysis to determine

which provision should control. Cf. Department of Transp. v. Public

Citizen, SAL ULS. 752, 766 (2004). Construing Scetion 7(a2) to apply

only to discretionary agency conduct obviates the need for such

inquires.

listed species, Section 7(a)(2) does not require federal

agencies to protect listed species from harms caused by

other actors. Rather, a federal agency’s duty under that

provision is simply to ensure that the species is not jeop-

ardized by actions attributable to the agency itself. See

Bennett v. Spear, 520 U.S. 154, 158 (1997) (“If an agency

determines that action it proposes to take may ad-

versely affect a listed species, it must engage in formal

consultation with the Fish and Wildlife Service.”) (em-

phasis added).°

Where (as here) the challenged conduct is mandated

by an Act of Congress, any alleged jeopardizing effect

may not properly be attributed to the federal agency

that simply carries out the statutory directive. As FWS

explained in its BiOp in this case, any harm to listed spe-

cies that may result from the challenged transfer is

not caused by EPA’s decision to approve the State of

Arizona’s program. Rather, the absence |in connec-

tion with the issuance of state permits] of the section

7 process that exists with respect to Federal NPDES

permits reflects Congress’ decision to grant States

the right to administer these programs under state

law provided the State’s program meets the require-

ments of 402(b) of the’'Clean Water Act.

" Other provisions of the ESA—most notably Section 9's general ban

on “takes” of listed species of fish or wildlife, see 16 U.S.C. 1538, and

Section 10's provision for the issuance of “‘incidental’ take” permits on

conditions established by FWS or NMFS, see 16 U.S.C. 1539—apply to

state officials and private actors as well as to federal agencies. See

Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515

US. G87, 690-691, 696-704 (1995). As the FWS BiOp in this case

recognized, those provisions will remain applicable to private develop-

ment activities in Arizona notwithstanding the transfer of NPDES

permitting authority to state officials. See 06-340 Pet. App. 112.

06-340 Pet. App. 114. The absence of that process also

reflects Congress's decision not to subject the actions of

state agencies to the no-jeopardy requirement and ancil-

lary consultation provisions in Section 7(a)(2) of the

ESA.

FWS thus correctly recognized that Congress’s deci-

sion to enact the mandatory directive contained in Sec-

tion 402(b) of the CWA, rather than EPA’s compliance

with that ~»mmand, is the legal cause of any harm to

listed species that the transfer of NPDES permitting

authority may entail. FWS/NMFS regulations imple-

menting the ESA state that an agency is required to

take into account only effects that are “caused” by its

actions. See 06-340 Pet. App. 111 (F WS BiOp citing 50

C.F.R. 402.02, which defines “indirect effects” as effects

that are both “caused” by the proposed action and “are

later in time, but still are reasonably certain to occur”).

The gravamen of respondents’ challenge to the trans-

fer of NPDES authority is that Arizona’s permitting

regime will be less protective of listed species than is the

NPDES program as administered by EPA officials be-

cause the State’s individual permitting decisions will not

be federal agency actions and therefore will not be sub-

ject to the no-jeopardy and consultation requirements of

Section 7(a)(2) of the ESA. That consequence, of course,

is a direct result of Congress's deliberate decision to

treat state agencies differently from federal agencies.

To treat that possibility. as a basis for overturning EPA’s

transfer decision would therefore frustrate Congress's

federalism-sensitive judgments to transfer authority to

Scates once the nine CWA criteria are met and not to

impose the distinct no-jeopardy and related consultation

requirements on state agencies. Those congressional

judgments, not any discretionary federz! agency action,

would clearly be the cause of any ultimate adverse im-

pact on listed species that might result from activities

authorized by state permits following the transfer of

NPDES authority to the State.

b. The causation analysis in the FWS BiOp is

strongly supported by this Court’s subsequent decision

in Department of Transportation v. Public Citizen, 541

U.S. 752 (2004). The Court in Public Citizen held that

the National Environmental Policy Act of 1969 (NEPA),

42 U.S.C. 4321 et seq., did not require the Federal Motor

Carrier Safety Administration (F MCSA) to assess the

environmental effects of allowing Mexican trucks onto

United States roads once the President lifted a prior

moratorium on such vehicles. The Court explained that

an agency is “responsible for a particular effect under

NEPA” only if “a reasonably close causal relationship

[exists] between the environmental effect” and the perti-

nent agency conduct. 541 U.S. at 767 (internal quotation

marks omitted). The Court further observed that

FMCSA has only limited discretion regarding motor

vehicle carrier registration: It must grant registra-

tion to all domestic or foreign motor carriers that are

willing and able to comply with the applicable * * *

requirements. FMCSA has no statutory authority to

impose or enforce emissions controls or to establish

environmental! requirements unrelated to motor car-

rier safety. .

Id. at 758-759 (citation and internal quotation marks

omitted). In those circumstances, the Court reasoned,

“the legally relevant cause of the entry of the Mexican

trucks is vot FMCSA’s action, but instead the actions of

the President in lifting the moratorium and those of

Congress in granting the President this authority while

simultaneously limiting FMCSA’s discretion.” /d. at

769.

The Court in Public Citizen concluded that, “where

an agency has no ability to prevent a certain effect due

to its limited statutory authority over the relevant ac-

tions, the agency cannot be considered a legally relevant

‘cause’ of the effect.” 541 U.S. at 770. The same princi-

ple applies here. Because the CWA forecloses EPA’s

ability to deny a State’s transfer application based on

projections of injury to listed species, EPA is not the

legal cause of any such harm that may result from activi-

ties that are authorized by NPDES permits issued by

the State of Arizona after the transfer occurs. Instead,

insofar as the federal government is concerned, the le-

gally relevant cause would be the action of “Congress in

* * * limiting [EPA’s] discretion,” id. at 769, by man-

dating approval of a transfer application that satisfies

the criteria in Section 402(b) of the CWA. The agency’s

approval of Arizona’s transfer application therefore can-

not properly be said to “jeopardize”—?.e., cause jeop-

ardy to—the continued existence of anv listed species.‘

Alternatively, EPA’s lack of discretion in this area would support

a conclusion that EPA’s approval of a State’s transfer application in

accordance with the CWA’s command is not an “ageney action” within

the meaning of Section 7(a)(2) of the ESA. See 66-549 Pet. App. 65a

(Thompson, J., dissenting). Although an action taken by an agency in

compliance with a statutory mandate could be viewed as an “action

* * * carried out by” the agency for purposes of Section 7(a)(2), that

language can also be read to cover only actions properly attributed to

the agency—i.¢., those in which the agency provides the critical causal

link by choosing to authorize, fund. or carry out an action that would not

otherwise occur. The latter reading avoids the absurd consequence of

requiring the agency to consider the marginal effect of actions over

which the agency has no control whatever, but instead is directed by

Congress to perform.

Thus, Section 7(a)(2) does not “expressly contradict”

the specific mandate of CWA Section 402(b). See Tray-

nor, 485 U.S. at 548. Nor is respondents’ proposed con-

struction of Section 7(a)(2) “absolutely necessary in or-

der that the words of [Section 7(a)(2)] shall have any

meaning at all,” ibid. (brackets, ellipses, and citation

omitted), since Section 7(a)(2) has significant practical

effect even though its coverage is limited to discretion-

ary agency conduct. Accordingly, the court of appeals

erred in construing Section 7(a)(2) to override the man-

datory approval provision of Section 402(b) of the CWA.

Properly understood, Section 7(a)(2) “serves not as a

font of new authority, but as something far more mod-

est: a directive to agencies to channel their existing

authority in a particular direction.” American Forest &

Paper Ass'n v. United States EPA, 137 F.3d 291, 299

(5th Cir. 1998); see Jn re Operation of the Mo. River

Sys. Litig., 421 F.3d 618, 630 (8th Cir. 2005)4explaining

that “|c|ase law supports the contention that environ-

mental- and wildlife-protection statutes do not apply

where they would render an agency unable to fulfill a

non-discretionary statutory purpose or require it to ex-

ceed its statutory authority”), cert. denied, 126 S. Ct.

1879 and 1880 (2006); Platte River Whooping Crane

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

(D.C. Cir. 1992); note 3, supra.”

* In support of its conclusion that the ESA vests federal agencies

with additional authority to protect listed species, even in the face of a

statute that imposes a mandatory duty and limits consideration to an

enumerated list of discrete factors, the court of appeals attached

significance to Section 7(a2)'s use of the word “insure.” which the

court understood to mean “make certain.” 06-549 Pet. App. 3)a-32a.

The court stated:

ce. Other ESA provisions reinforce the conclusion

that Section 7(a)(2)’s no-jeopardy and ancillary consulta-

tion requirements apply only to an agency’s exercise of

existing authorities and do not apply to agency conduct

that is mandated by another federal statute. Section

2(c)(1) reflects Congress’s policy judgment that all fed-

eral agencies “shall utilize their authorities in further-

ance of” the statute’s purposes. 16 U.S.C. 1531(¢)(1)

(emphasis added). Section 7(a)(1) similarly provides

that agencies “shall * * * utilize their authorities in

furtherance of the purposes of [the ESA] by carrying

Unless an agency has the authority to take measures to prevent

harm to endangered species, it is impossible for that agency to

“make certain” that its actions are not likely to jeopardize those

species. Otherwise, agencies would be ferced to choose between

violating section 7’s prohibition on agency actions that are likely to

jeopardize listed species and acting beyond their powers to protect

such species.

Id. at 32a. That analysis is misconceived. The impossibility that drove

the court of appeals to derive new authority for the agency was itself a

product of applying Section 7(a)(2) in a circumstance where it is

inapplicable—ie.. a circumstance in which the agency's existing

authority gives it no discretion to consider the effect of an action

mandated by Congress. Congress's use of the word “insure” suggests

not that Section 7(a)(2) vests federal agencies with new and ill-defined

authority, but that the statute applies only in situations where agencies

have the practical capacity to prevent jeopardy to listed species.

Section 7(a)(2) does not require federal agencies to “insure” that listed

species are not jeopardized by the conduct of actors other than the

agency itself. Rather, by its terms, Section 7(a)2) directs agencies to

“insure” only that their ovew actions are not likely to be the cause of

jeopardy. That statutory mandate is properly applied in accordance

with the background principles of legal causation discussed in the text.

That more modest role for Section 7(a)(2) was even more evident in its

original version, but the basic scope of the no-jeopardy requirement has

never been altered. See pp. 20-34, sfra.

out programs for the conservation of endangered spe-

cies.” 16 U.S.C. 1536(a)(1) (emphasis added). And Sec-

tion 7(b)(3)(A), which governs the inter-agency consulta-

tion process, states that, “[i]f jeopardy or adverse modi-

fication is found, the Secretary shall suggest those rea-

sonable and prudent alternatives which he believes

would not violate [Section 7(a)(2)] and can be taken by

the Federal agency * * * inimplementing the agency

action.” 16 U.S.C. 1536(b)(3)(A) (emphasis added).” The

italicized language in each of those provisions reflects

Congress’s intent that federal agencies’ efforts to pre-

vent harm to listed species must be undertaken in con-

formity with any constraints imposed by other laws.

d. Pursuant to ESA amendments enacted in 1978

(see pp. 31-33, infra), Congress has established an En-

dangered Species Committee and has authorized that

body to grant exemptions authorizing agency conduct

that would otherwise violate Section 7(a)(2). See 16

U.S.C. 1536(e)-()). Respondents contend (Br. in Opp, 27

& n.13) that Congress’s creation of the exemption proce-

dure supports their argument that the requirements of

Section 7 apply even where an agency is acting pursuant

to an express statutory directive. The statutory lan-

guage makes clear, however, that the exemption mecha-

nism was not intended to address such situations. The

ESA requires an applicant for an exemption to show,

inter alia, that it has exhausted the consultation process

and has “made a reasonable and responsible effort to

develop and fairly consider modifications or reasonable

and prudent alternatives to the proposed agency action

” Accord 50 C.F.R. 402.02 (defining reasonable and prudent alter-

natives as alternatives that, svfer alia. “can be implemented consistent

with the scope of the Federal agency's legal authority and jurisdic-

tien”).

which would not violate subsection (a)(2) of this section.”

16 U.S.C. 1536(g)(3)(A)(i). That requirement could not

sensibly be applied to circumstances in which an agency

is required by statute to take a particular described ac-

tion. Indeed, the court of appeals itself noted that the

exemption provisions “focus on practical concerns, not

legal constraints on agency power to protect species.”

06-549 Pet. App. 37a.

3. The development of Section 7 of the ESA since its

original enactment in 1973 confirms that the no-jeop-

ardy requirement of current Section 7(a)(2) does not

override mandates or constraints imposed by other

Acts of Congress

The court of appeals appeared to recognize that the

phrase “utilize their authorities,” where it appears in the

ESA, reflects Congress’s intent that federal agencies

pursue the ESA’s objectives only to the extent that they

are permitted to do so by other provisions of law. See

06-549 Pet. App. 34a-35a, 46a. The court concluded,

however, that because Section 7(a)(2) itself does not con-

tain that phrase or similar limiting language, Section

7(a)(2)’s no-jeopardy mandate supersedes mandatory

directives contained in other Acts of Congress. See ibid.

That conclusion reflects a misunderstanding of the

ESA’s history.

a. As originally enacted in 1973, Section 7 of the

ESA directed all federal agencies to

utilize their authorities in furtherance of the pur-

poses of [the] Act by carrying out programs for the

conservation of endangered species and threatened

species * * * and by taking such action necessary

to insure that actions authorized, funded, or carried

out by them do not jeopardize the continued exis-

tence of such endangered species and threatened

species or result in the destruction or modification of

[critical] habitat of such species.

ESA, Pub. L. No. 93-205, 87 Stat. 892 (16 U.S.C. 1536

(1976)). As that text makes clear, in Section 7’s original

form, the obligations of federal agencies to carry out

conservation programs (now contained in Section

7(a)(1)) and to avoid jeopardy (now contained in Section

7(a)(2)) were both qualified by the phrase “utilize their

authorities.” Consistent with that limitation, Represen-

tative Dingell, the floor manager of the bill in the House

of Representatives, explained that the ESA as originally

enacted “substantially amplified the obligation of * * *

agencies * * * to take steps within their power to

carry out the purposes of this act.” 119 Cong. Rec.

42,913 (1973) (emphasis added). This Court quoted that

very statement by Representative Dingell in its seminal

ESA decision in TVA v. Hill, 437 U.S. 153, 183 (1978).""

" The relevant House Report contained the following deseription of

Section 7(a) of the House bill (H.R. 37, 93d Cong., Ist Sess. (1973) (as

reported by the House Comm. on Merchant Marine and Fisheries)),

which was substantively equivalent to Section 7 of the ESA as enacted

in 1973:

This subsection requires the Secretary and the heads of all other

Federal departments and agencies to use their authorities in order

to carry out programs for the protection of endangered species,

and it further requires that those agencies take the necessary

action that will not jeopardize the continuing existence of endan-

gered species or result in the destruction of critical habitat of those

species,

H.R. Rep. No. 412, 93d Cong., Ist Sess. 14 (1973). In the court of

appeals’ view, the report's description of the no-jeopardy mandate as

a “further require| ment |,” beyond the directive to engage in conserva-

tion measures, reinforces the inference that the omission of the phrase

“utilize their authorities” from current Section 7(a)(2) should be treated

b. Through amendments enacted in 1978, Section 7

of the ESA was divided into subsections. See Endan-

gered Species Act Amendments of 1978 (1978 Amend-

ments), Pub. L. No. 95-632, § 3, 92 Stat. 3752 (16 U.S.C.

1536 (Supp. II 1978)). Subsection (a) of Section 7, as

enacted in those 1978 amendments, contained in one

paragraph substantially the same language as is now set

forth in current Subsections 7(a)(1) and (2). As amended

in 1978, Section 7(a) provided as follows:

Consultation.—The Secretary shall review other pro-

grams administered by him and utilize such pro-

grams in furtherance of the purposes of [the ESA].

All other Federal agencies shall, in consultation with

and with the assistance of the Secretary, utilize their

authorities in furtherance of the purposes of this Act

by carrying out programs for the conservation of en-

dangered species and threatened species listed pur-

suant to section 4 of this Act. Each Federal agency

shall, in consultation with and with the assistance of

the Secretary, insure that any action authorized,

funded, or carried out by such agency (hereinafter in

this section referred to as an “agency action”) does

not jeopardize the continued existence of any endan-

gered species or threatened species or result in the

destruction or adverse modification of habitat of such

species which is determined by the Secretary, after

consultation as appropriate with the affected States,

to be critical, unless such ageney has been granted

as significant. See 06-549 Pet. App. 34a-35a. But because the text of

Section 7 of the 1973 ESA itself described the avoidance of jeopardy as

one end to which federal agencies should “utilize their authorities,” the

courts interpretation of the 1973 legislative history is clearly un-

founded.

an exemption for such action by the Committee pur-

suant to subsection (h) of this section.

1978 Amendments § 3, 92 Stat. 3752 (16 U.S.C. 1536(a)

(Supp. II 1978)).

The Conference Report accompanying the 1978

Amendments explained that the new subsection 7(a)

“essentially restates section 7 of existing law.” H.R.

Conf. Rep. No. 1804, 95th Cong., 2d Sess. 18 (1978).

Thus, while the no-jeopardy and ancillary consultation

requirements were set forth in a separate sentence that

did not repeat the phrase “utilize their authorities” con-

tained in the preceding sentence, the 1978 legislative

history indicates that Congress in rewording Section 7

did not seek to expand the scope of federal agencies’ no-

jeopardy and consultation duties in potentially far-

reaching ways, but rather intended to preserve the sub-

stance of the requirements in their prior form. Indeed,

the court of appeals in this case recognized that “[t|he

1978 amendment did not change section 7’s substantive

provisions,” 06-549 Pet. App. 36a, though the court

failed to appreciate the significance of that fact. The

‘clear import of the 1978 Amendments therefore is that

the obligation of an agency not to jeopardize a listed

species remained simply a particular (albeit mandatory)

aspect of the more generalized provision in the preced-

ing sentence for agencies to “utilize their authorities” in

furtherance of the Act’s purposes.

The foregoing history is particularly significant in

light of the events that precipitated passage of the 1978

Amendments. Those amendments were enacted only a

few months after this Court’s decision in 7VA v. Hill,

supra, which construed the ESA to preclude operation

of the Tellico Dam in Tennessee. See 437 U.S. at 156-

158, 193-195. Inter alia, the 1978 Amendments softened

the practical effect of the decision in H?// by creating the

Endangered Species Committee, which is authorized to

grant exemptions from Section 7(a)(2)’s no-jeopardy

mandate, see 1978 Amendments, § 3, 92 Stat. 3753-3760

(16 U.S.C. 1536(e)-(q) (Supp. II 1978)), and by directing

the Committee promptly to determine whether the

Tellico Dam and Reservoir Project should be granted an

exemption, see § 5, 92 Stat. 3761. Given that sequence

of events and the resulting thrust of the 1978 Amend-

ments, it is most unlikely that Congress chose simulta-

neously to expand the reach of Section 7’s no-jeopardy

requirement to require an agency to ignore a mandate

in another Act of Congress. And it is altogether implau-

sible to suppose that Congress intended to accomplish

that result obliquely, by putting the phrase “utilize their

authorities” in a separate sentence from Section 7(a)’s

no-jeopardy and consultation requirements, without

mentioning the change in the legislative history. Cf.

Cook County v. United States ex rel. Chandler, 538 U.S.

119, 132-134 (2003) (declining to construe 1986 amend-

ments to the False Claims Act as impliedly removing

municipal corporations from the Act’s coverage when

such a change would have been centrary to the primary

thrust of the 1986 legislation).

Finally, in 1979, Section 7(a) was further divided into

subsections (1), (2), and (3). see Act of Dec. 28, 1979,

Pub. L. No. 96-159, § 4, 93 Stat. 1226, and Section 7(a)

remains in that form.'' Once again, however, that fur-

ther subdivision made no substantive change. Accord-

ingly, an agency's duty to “insure” that its actions will

not jeopardize a listed species (and to engage in consul-

The 1974 amendments also added the final sentence of what is now

Section (ak2). —-—-

tation to that end) continues to be limited to measures

the agency might take to “utilize [its] authorities” under

existing law.

4. Regulations promulgated by FWS and NMFS in 1986

reflect the expert agencies’ view that Section

7(a)(2)’s no-jeopardy mandate does not apply to con-

duct required by another Act of Congress

a. The federal agencies charged with primary re-

sponsibility for the administration of the ESA have ad-

dressed the application of Section 7(a)(2)’s no-jeopardy

and consultation requirements to agency conduct, like

EPA’s approval of Arizona’s transfer application in this

case, that is affirmatively mandated by some other pro-

vision of law. First, as neted above, a regulatory provi-

sion jointly adopted by FWS and NMFS states that the

relevant effects on listed species under Section 7(a)(2)

are those “caused” by the agency’s own action. 50

C.F.R. 402.02 (defining “[e|ffects of the action”). The

effects of a statutory mandate are caused by Congress,

not by the agency. See pp. 22-25, supra.

Second, another regulatory provision adopted jointly

by FWS and NMFS states that “Section 7 and the re-

quirements of [50 C.F.R. Pt. 402, concerning the no-

jeopardy provision and consultation process] apply to all

actions in which there is discretionary Federal involve-

ment or control.” 50 C.F.R. 402.08 (emphasis added).

That rule reflects the longstanding view of FWS and

NMFS that Section 7 channels federal agencies’ exercise

of existing authority and discretion, but dees not super-

sede other legal constraints on agency conduct. See 06-

49 Pet. App. 64a (Thompson, J., dissenting) (discussing

prior Ninth Circuit decisions that had relied on 50

C.F.R. 402.03 in holding Section 7(a2) inapplicable to

situations where an agency lacks discretionary authority

to act to benefit listed species).'" The construction of

Section 7 of the ESA that is reflected in 50 C.F.R. 402.02

and 402.03 is entitled to deference under the principles

announced in Chevron U.S.A. Ine. v. NRDC, 467 U.S.

837 (1984). See Babbitt v. Sweet Home Chapter of Com-

munities for a Great Or., 515 U.S. 687, 703 (1995) (“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 degree of deference to the Secretary’s reasonable

interpretation.”).

The FWS/NMFS regulations reflect a reasonable

construction of Section 7(a)(2). By its terms, Section

7(aX(2) requires federal agencies to ensure, not that a

listed species is never placed in jeopardy, but that a like-

lihood of jeopardy is not caused by actions attributable

to the agency itself FWS and NMFS have reasonably

interpreted Section 7(a)(2)’s no-jeopardy and consulta-

' See, e.g.. Ground Zero Ctr. for Non-Violent Action v. United

States Dep't of the Navy, 383 F.3d 1082, 1092 (9th Cir. 2004) (holding

that Section 7(aX2) of the ESA did not apply to the upgrading of

Trident II] missile facilities “hecause the Navy lacks the discretion to

cease Trident [1 operations * * * for the protection of the threatened

species”); Environmental Prot. Info. Ctr. v. Simpson Timber Co., 255

F.8d 1073, 1083 (9th Cir. 2001) (holding that FWS had not retained

sufficient discretionary control over an carlier-issued permit to require

the permittee to take steps that would benefit newly-listed species, and

hence Was not required to reinitiate consultation under Section 7(a\(2)

when new species were listed in the area subject to the permit): Srerra

Cluby. Babbitt, 65 F 3d 1502, 1509 (th Cir. 1995) tholding that Section

Tiak2) did not apply to the Bureau of Land Management's approval of

road construction under a right-of-way agreement where the agree-

ment had not retained discretionary authority forthe ageney todemand

protections for listed species).

tion requirements to apply only to discretionary agency

actions because a federal agency cannot properly be

held responsible for conduct that it is legally obliged to

undertake. The construction of Section 7(a)(2) set forth

in the regulations is thus consistent with the statutory

text and with background principles of legal causation.

Under respondents’ view, by contrast, Section 7(a)(2)

would require every federal agency to ensure that its

performance of mandatory duties over which it has no

discretion does not jeopardize listed species, and it

would potentially authorize agencies to override specific

statutory directives when a no-jeopardy finding cannot

be made. Adopting an interpretation that avoids such

consequences is surely reasonable.

b. The court of appeals did not hold the pertinent

FWS/NMFS regulations invalid, but instead purported

to reconcile those regulations with its conclusion that

Section 7(a)(2) overrides the mar’ atory provisions of

other federal statutes. The court’s analysis is unpersua-

sive. The court quoted 50 C.F.R. 402.02 and recognized

its parallel to the causation standard under NEPA as

explained in Public Citizen. See 06-549 Pet. App. 30a.

The court nevertheless attributed to EPA the effects of

an administrative decision mandated by Congress, thus

reaching a conclusion flatly contrary to Public Citizen’s

holding and analysis. |

As for 50 C.F.R. 402.03, the court of appeals con-

strued its reference to “actions in which there is discre-

tionary Federal involvement or control” to encompass

EPA’s approval of Arizona’s transfer application, on the

ground that “EPA had exclusive decisionmaking author-

itv over Arizona’s pollution permitting transfer applica-

tion.” See 06-549 Pet. App. dda. Under the CWA, how-

ever, EPA did not have discretion to grant or deny the

transfer, but was instead compelled to grant Arizona’s

application once the CWA criteria were satisfied. The

court’s construction of 50 C.F.R. 402.03 as encompassing

agency conduct mandated by Congress effectively reads

the word “discretionary” out of the regulation. Indeed,

the court of appeals acknowledged that, under prior

Ninth Circuit decisions construing 50 C.F.R. 402.03,

Section 7(a)(2) of the ESA does not apply “where the

challenged action [i]s legally foreordained by an earlier

[agency| decision, such as where the agency lack[s] the

ability to amend an already-issued permit.” 06-549 Pet.

App. 41a. The court of appeals did not explain, however,

why conduct mandated by an Act of Congress should be

treated as “discretionary” if conduct “foreordained” by

an agency’s own prior administrative decisions is not.

In any event, whatever uncertainty might previously

have existed concerning the proper interpretation of 50

C.F.R. 402.02 and 402.03 has since been eliminated. In

connection with the State of Alaska’s application for

transfer of NPDES permitting authority, FWS and

NMFS have confirmed that, because the CWA requires

that transfer applications must be granted under speci-

fied circumstances, EPA’s approval is not the legal

“cause,” within the meaning of 50 C.F.R. 402.02, of any

impacts on listed species that may result from a state-

issued NPDES permit. See 06-549 Pet. App. 105a-106a,

115a-ll6a. FWS and NMFS have further confirmed

that, in light of the mandatory character of Section

402(b) of the CWA, EPA lacks “discretionary Federal

involvement or control,” within the meaning of 50 C.F.R.

402.03, over the transfer decision once the CWA criteria

are met. See 06-549 Pet. App. 109a--10a, 114a-115a.

Under this Court’s decisions, the interpretation of 50

C.FLR. 402.02 and 402.03 set forth in the recent ex-

change of letters is “controlling unless plainly erroneous

or inconsistent with the regulation|s].” Auer v. Robbins,

519 U.S. 452, 461 (1997) (internal quotation marks omit-

ted). As in Aver, “[t|hat deferential standard is easily

met here.” /bid."

" The government's brief in the court of appeals stated:

The holding in [American Forest & Paper Ass'n, supra (see note

3, supra)| supports a finding that EPA lacks “discretionary

involvement or control” in the approval of a state NPDES pro-

gram and thus, the decision to approve a program is not subject

to the requirements of § 7. See 50 C.F.R. § 402.03. As that was

not a basis for EPA’s decision in this case or FWS’ | BiOp], [EPA

does| not make that argument in this case, and this Court need

not address this issue.

Gov't C.A. Br. 31 1.9. The private intervenors (petitioners in No. 06-

340), however, relied on 50 C.F.R. 402.03 in arguing that, because EPA

lacked “discretionary involvement or control” over the decision whether

to approve Arizona's transfer application, Section 7(a2) was inapphiea-

ble to that decision. The court of appeals did not treat the government's

silence on this point as a ground for ignoring the regulation, but instead

announced its own construction of the rule, see 06-549 Pet. App.

39a-44a, which is flatly inconsistent with that of the federal agencies

that administer it and are responsible for its promulgation. The court

of appeals also noted the potential relevance of 50 C.F.R. 402.02, though

the court construed that regulation in a manner inconsistent with this

Court's causation analysis in Public Citizen. See 06-549 Pet. App. 29a-

30a; p. 36, supra, This Court therefore should consider and give

deference to those regulatory provisions in resolving the question of

statutory construction presented in this case. The Court should also

defer to the interpretation of those regulations that is set forth in the

recent inter-agency correspondence, even though those letters

postdated the court of appeals’ decision in this case. Cf. Aner, 519 U.S.

at 461-462 (deferring to the Secretary of Labor's interpretation of the

Secretary's regulations when that interpretation was first announced

in a brief in that case filed at the invitation of this Court).

5. This Court's decision in TVA v. Hill does not support

the court of appeals’ analysis

The court of appeals viewed this Court’s decision in

TVA vy. Hill, supra, as supporting the conclusion that

Section 7(a)(2) of the ESA supersedes mandatory direc-

tives contained in other federal statutes. The court’s

reliance on Hill was misplaced.

a. The Court in Hill held that Section 7 of the ESA

prohibited the Tennessee Valley Authority (TVA) from

putting the Tellico Dam into operation when that action

would “either eradicate the known population of [endan-

gered] snail darters or destroy their critical habitat.” _

437 U.S. at 171; see id. at 156-158, 193-195; pp. 32-33,

supra. The Court rejected the contentien that continu-

ing lump-sum congressional appropriations for the TVA

had impliedly repealed Section 7’s no-jeopardy mandate

as it applied to the dam. 437 U.S. at 189-193. Although

the House and Senate Appropriations Committees had

issued reports that purported to “direct||" the TVA to

complete the Tellico Project, see id. at 164, 167, the

Court noted that “{t]he Appropriations Acts did not

themselves identify the projects for which the sums had

been appropriated,” jd. at 189 n.35, and it explained that

“le|xpressions of committees dealing with requests for

appropriations cannot be equated with statutes enacted

by Congress,” id. at 191. Accord Lincoln v. Vigil, 508

U.S. 182, 192-194 (1993) (holding that expenditures from

lump-sum appropriations are discretionary in nature).

Because the relevant Appropriations Acts authorized

but did not require the TVA te put the Tellico Dam into

operation, this Court had no occasion to consider the

application of the ESA’s no-jeopardy mandate to con-

duct required by another Act of Congress. The Court in

40)

Hill did not suggest that Section 7 of the ESA super-

seded an express statutory directive like that contained

in Section 402(b) of the CWA. Indeed, any such holding

would have been implausible under the version of Sec-

tion 7 that was in effect when Hill was decided, which

identified the avoidance of jeopardy to listed species as

simply one means by which federal agencies were di-

rected to “utilize their authorities in furtherance of the

purposes of” the ESA. See pp. 29-30, supra; Hill, 437

U.S. at 160. Furthermore, as noted above (see p. 30,

supra), the Court in Hill quoted the statement by Rep-

resentative Dingell, the floor manager of the bill, ex-

plaining that the ESA substantialiy amplified the duty

of federal agencies to take steps “within their power” to

carry out the Act’s purposes. See 437 U.S. at 183 (quot-

ing 119 Cong. Rec. at 42,913).

b. The Court in Hill also noted that previous endan-

gered species legislation had “qualified the obligation of

federal agencies by stating that they should seek to pre-

serve endangered species only ‘insofar as is practicable

and consistent with the/ir] primary purposes.” 437

U.S. at 181 (quoting Endangered Species Conservation

Act of 1969, Pub. L. No. 89-669, § 1(b), 80 Stat. 926, re-

pealed by ESA, Pub. L. No. 93-205, § 14, 87 Stat. 903).

The Court further observed that a bill passed by the

Senate in 1975 had “merely required federal! agencies to

‘carry out such programs as are practicable for the pro-

tection of species.” /d. at 1&2 (quoting S. 1983, 93d

Cong., Ist Sess. § 7(a) (1973)). The court of appeals

viewed Congress's deletion of prior statutory references

to practicability and consistency with primary agency

purposes as reinforcing the court of appeals’ interpreta-

tion of the 1973 ESA as ultimately enacted. See 06-549

Pet. App. 54a. That inference is unfounded, since

species-protective measures that are otherwise prohib-

ited by an Act of Congress are different in kind from

measures that an agency simply regards as impractica-

ble or inconsistent with its primary mission. Congress’s

determination that the ESA’s no-jeopardy mandate

should supersede an agency’s discretionary policy

choices does not imply—much less clearly manifest (see

pp. 19-20, supra)—an intent to repeal enacted laws.

Il. EPA’S APPROVAL OF ARIZONA'S TRANSFER APPLICA-

TION WAS NOT ARBITRARY OR CAPRICIOUS, AND A

REMAND TO THE AGENCY IS UNNECESSARY, PARTIC-

ULARLY BECAUSE EPA, FWS, AND NMFS HAVE CLAR-

IFIED THEIR UNDERSTANDING OF THE LEGAL IS-

SUES PRESENTED HERE

Before addressing the question whether Section

7(a)(2) of the ESA applies to agency conduct that is

mandated by another Act of Congress, the court of ap-

peals reviewed the course of agency proceedings in this

case and concluded that “EPA’s approval of Arizona’s

transfer application cannot survive arbitrary and capri-

cious review because the EPA relied during the adminis-

trative proceedings on legally contradictory positions

regarding its section 7 obligations.” 06-549 Pet. App.

23a. The court found that a principal basis for FWS’s

finding that the transfer of permitting authority would

not jeopardize listed species—i.c., FWS’s conclusion

that the transfer decision was not the legal cause of any

harm to the species because the transfer was mandated

by Section 402(b) of the CWA—was inconsistent with

FE PA’s antecedent determination that consultation was

required by Section 7(a)(2) of the ESA. See id. at 25a-

26a. The court stated that, “|bly relying on [the FWS

BiOp’s| line of reasoning after determining that it did

have a consultation obligation, the EPA decided that it

had to consult but had no authority to do anything con-

cerning the matter about which it had to consult.” Jd. at

25a. The court explained that such a position would be

contrary to the text of Section 7(a)(2), which “makes no

legal distinction between the trigger for its requirement

that agencies consult with F WS and the trigger for its

requirement that agencies shape their actions so as not

to jeopardize endangered species.” /d. at 26a.

The court of appeals was correct in stating that the

no-jeopardy and consultation requirements of Section

7(a)(2) go hand in hand," and that Section 7(a)(2) does

not require federal agencies to consult about conduct to

which the no-jeopardy mandate does not apply. The

court was also correct that the course of agency pro-

ceedings in this case reflected a degree of confusion re-

garding the ESA’s application to the NPDES transfer

decision. EPA’s prior statements that it was legally re-

quired to consult, however, do not cast doubt on the law-

fulness of its ultimate decision to grant Arizona’s trans-

fer application, and the relevant federal agencies have

since clarified their understanding of the legal principles

that govern in this setting.

A. EPA’s Initiation Of Consultation In This Case Does Not

Preclude The Agencies’ Ultimate Determination That

Approval Of The State's Transfer Application Would Not

Jeopardize Listed Species

Section 7(a)(2) of the ESA states that “lelach Fed-

eral agency shall, in consultation with and with the as-

sistance of the Secretary. insure that any [agency ae-

" But ef. American Forest & Paper Ass'n, 137 F.3d at 298 n.6 (sug-

vesting possible distinction between consulting obligations and sub-

stantive powers).

tion] is not likely to jeopardize the continued existence

of any endangered species or threatened species.” 16

U.S.C. 1536(a)(2). That phrasing makes clear that “con-

sultation” with FWS or NMFS is not an end in itself, but

rather is a means of ensuring compliance with Section

7(a)(2)’s substantive no-jeopardy mandate. Once it is

confirmed that an agency is compelled by another fed-

eral law to engage in particular conduct, Section 7(a)(2)

of the ESA does not require the agency to engage in

consultation concerning species-related impacts that it

has no authority to prevent. Cf. Public Citizen, 541 U.S.

at 767-769 (holding that, under the “rule of reason” im-

plicit in NEPA, a federal agency is not required to as-

sess the environmental impacts of an action that it is

legally obligated to perform).

The FWS BiOp did not discuss 50 C.F.R. 402.03, and

it did not address the question whether the consultation

that produced the BiOp was required by the ESA. The

BiOp’s no-jeopardy finding, however, was grounded in

substantial part on FWS’s conclusion that, even if Ari-

zona’s administration of the NPDES program proved to

be less protective of listed species than the prior EPA

regime, that disparity would not be “caused” by EPA’s

approval of the transfer, but instead would be attribut-

able to “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

Clean Water Act.” 06-340 Pet. App. 114. Because Sec-

tion 7(a)(2)’s consultation requirement is intended to

facilitate compliance with the no-jeopardy man-

date—and therefore applies only to conduct that is prop-

erly attributable to the agency —FWS's causation analy-

sis logically implies that consultation on Arizona’s trans-

fer application was not compelled by the ESA.

Neither the ESA nor the CWA, however, prohibits a

federal agency from seeking the views of FWS or NMFS

concerning the effects on listed species of conduct that

the CWA requires, even though consultation in those

circumstances would not be statutorily-required and

would not serve its usual purpose of facilitating compli-

ance with Section 7(a)(2)’s no-jeopardy requirement. In

some cases, moreover, it may require significant factual

or legal analysis to determine whether a potential effect

on-listed species is properly attributable to an action

mandated by Congress or to a related discretionary

judgment, and consultation with FWS or NMFS would

be an appropriate means of resolving that question. Cf.

(6-549 Pet. App. 73a (Kozinski, J., dissenting from de-

nial of rehearing en banc). EPA’s decision to initiate

consultation with FWS concerning Arizona’s transfer

application therefore was not inconsistent with FWS's

ultimate determination that any harm to listed species

that the transfer might entail was legally attributable to

Congress rather than to EPA.

B. Although EPA Incorrectly Stated During The Adminis-

trative Process That Consultation Was Required By The

ESA, Those Misstatements Do Not Render The Chal-

lenged Agency Action Arbitrary Or Capricious

At both the beginning and the end of its consider-

ation of Arizona’s transfer application, EPA expressed

the view that consultation concerning that application

was required by the ESA. Thus, in soliciting comments

on the transfer application, EPA cited Section 7(a)(2) of

the ESA and stated that “|[tlhe approval of the State

permitting program under section 402 of the Clean Wa-

ter Act is a federal action subject to this requirement.”

06-340 Pet. App. 559. And the Federal Register notice

that announced EPA’s approval of the State’s applica-

tion stated that “[i]ssuance of the biological opinion

* * * concludes the consultation process required by

ESA section 7(a)(2).” Jd. at 73.'" EPA’s characteriza-

tion of the consultation as a process “required” by Sec-

tion 7(a)(2) is not consistent with the relevant federal

agencies’ understanding of Section 7(a)(2) as reflected

in the FWS/NMFS regulations, see 50 C.F.R. 402.02,

402.03; pp. 34-38, supra, and in more recent agency pro-

nouncements, see 06-549 Pet. App. 93a-116a; pp. 15-14,

supra; pp. 48-49, infra.

Not every misstatement of law, however, renders an

associated agency decision arbitrary or capricious. The

Administrative Procedure Act (APA) provides that,

when a reviewing court determines whether challenged

agency action is arbitrary or capricious, “due account

shall be taken of the rule of prejudicial error.” 5 U.S.C.

706.'° Thus, “[{i]Jn administrative law, as in federal civil

and criminal litigation, there is a harmless error rule.”

PDK Labs., Inc. v. United States DEA, 362 F.3d 786,

799 (D.C. Cir. 2004) (citing 5 U.S.C. 706). “If the

' EPA had made similar statements in considering some prior state

applications for transfer of NPDES permitting authority. See 64 Fed.

Reg. 73,552, 73,554-73,555 (1999) (requesting comment on Maine appli-

cation); 66 Fed. Reg. 12,791, 12,798-12,794 (2001) (approving the same);

63 Fed. Reg, 33,657-33,65s (199s) (seeking comment and approving

public hearing on Texas application); 61 Fed. Reg. 65,047, 65,053 (1996)

(approving Oklahoma application); id. at 47,931, 47,.934-47,935 (request-

ing comment on Louisiana application). See also 06-549 Pet. App. Ta-Sa

Neo.

" Although the instant case involves a petition for direct court of

uppeals review of EPA's transter decision pursuant to 53 U.S.C,

13691 bX 1), see 06-549 Pet. App. Lda-16a, the parties agree that the case

is governed by the standards of review set forth in 5 U.S.C. 706, see 06-

DY Pet. App. 20a-2ha & nu.

agency's mistake did not affect the outcome, if it did not

prejudice the petitioner, it would be senseless to vacate

and remand for reconsideration.” /bid.; see DSE, Inc.

v. United States, 169 F.3d 21, 31 (D.C. Cir. 1999) (“Un-

der the APA, we will not set aside agency action unless

the party asserting error can demonstrate prejudice

from the error.”) (brackets and internal quotation marks

omitted).

In the instant case, EPA’s misperception that it was

legally required to consult on Arizona’s transfer applica-

tion did not affect the outcome of the agency proceed-

ings. If EPA had recognized from the outset that Sec-

tion 7(a)(2)’s consultation requirement did not apply, the

agency would still have granted Arizona’s application

once it determined that the CWA criteria were satisfied.

Respondents therefore were not prejudiced. by EPA’s

erroneous view that the consultation was required by

Section 7(a)(2).

Nor did EPA’s misstatements preclude informed

judicial review by obscuring the basic rationale for the

agency's transfer decision. The analysis contained in

FWS’s BiOp reflects a correct understanding of the cau-

sation principles that govern in this area, and it provides

a fully sufficient basis for concluding that approval of

Arizona's transfer application would not jeopardize any

listed species. See pp. 22-25, supra. During the consul-

tation process, moreover, the pertinent EPA regional

office expressed the view that its approval of the State’s

application was “not the cause of future non-discharge-

related impacts on endangered species from projects

requiring State NPDES permits” because, inter alia,

“section 402(b) of the CWA states that EPA ‘shall’ ap-

prove the State program if it meets certain specified-

criteria.” 06-340 Pet. App. 564, 565.

Although a reviewing court “may not supply a rea-

soned basis for the agency’s decision that the agency

itself has not given,” the court “will * * * ‘uphold a

decision of less than ideal clarity if the agency’s path

may reasonably be discerned.’” Motor Vehicle Mfrs.

Ass'n of the United States, Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Bowman

Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419

U.S. 281, 286 (1974)). Here, both EPA and FWS ulti-

mately recognized that, in light of the directive set forth

in Section 402(b) of the CWA, EPA was not properly

treated as the legal cause of any effects on listed species

that the transfer of NPDES permitting authority might

entail. The only issue directly before the court of ap-

peals was the propriety of the agencies’ no-jeopardy

determination, and the court did not assert that the agen-

cies’ rationale for (haf determination was unclear.

Because the relevant agencies in the MOA had previ-

ously expressed their intent to continue to consult on

NPDES transfer decisions, the question whether consul-

tation about Arizona’s application was legally required

was of little practical importance, and the documents

prepared in connection with that application contain

only passing references to that issue. Thus, despite

EPA’s failure at that time to appreciate the full logical

implications of the causation analysis suggested by the

EPA regional office and incorporated into the FWS

BiOp, the administrative record clearly reveals the agen-

cies’ bases for concluding that the transfer of permitting

authority would not jeopardize listed species. Because

EPA’s isolated references to the consultation as a pro-

cess “required” by the ESA neither prejudiced respon-

dents nor obscured the rationale for the no-jeopardy

finding, the court of appeals was not required to remand

the matter to the agency for further clarification."' -

C. A Remand For Further Administrative Proceedings Is

Unnecessary At The Present Stage Of The Case Because

EPA, FWS, And NMFS Have Clarified Their Current

Views Concerning The Applicability Of Section 7(a)(2)’s

Consultation And No-Jeopardy Requirements To Trans-

fers Of NPDES Permitting Authority

In any event, a remand to the agency for further

clarification is unnecessary at the current stage of the

case. In connection with Alaska’s application for trans-

fer of NPDES permitting authority (see pp. 13-14, su-

pra), EPA requested confirmation from FWS and

NMFS of EPA’s current view that “the no-jeopardy and

consultation duties of ESA Section 7(a)(2) do not apply

If the administrative record had failed to identify a clear and

coherent rationale for EPA’s approval of the State’s transfer applica-

tion, or had failed to address a material legal or factual issue, the court

of appeals would have been required under established principles to

remand the matter to the agency rather than attempting to resolve the

disputed interpretive question in the first instance. See 06-549 Pet.

App. 72a (Kozinski, J., dissenting from denial of rehearing en bane); see

also Gonzales v. Thomas, 126. Ct. 1613, 1614-1615 (2006) (per curiam)

(summarily reversing court of appeals decision and directing the court

to remand the case to the agency for initial resolution of a contested

immigration-law issue); 7 NS v. Orlando Ventura, 537 U.S. 12. 16 (2002)

(per curiam) (“Generally speaking. a court of appeals should remand a

case to an agency for decision of a matter that statutes place primarily

in agency hands.”); Burlington N., luc. v. United States, 459 U.S. 151,

1455 (1982) (holding that, if a reviewing court is unsure about the con-

tinued vitality of a prior agency position, the more appropriate course

is to remand to the agency for explanation); General Chem. Corp. v.

United States, 817 F.2d 844, 850(D.C. Cir. 1987) Cholding that, when an

agency has failed to engage in reasoned decisionmaking, a reviewing

court should not itself determine what the result should have been).

to approval of a State’s application to administer the

NPDES program.” 06-549 Pet. App. 96a (emphasis

added); see 7d. at 93a-102a. EPA noted the court of ap-

peals’ statement in this case that the agency had taken

“‘contradictory’ positions regarding the application of

ESA Section 7(a)(2) to Arizona’s application to adminis-

ter the NPDES program,” and it expressed the hope

that “obtaining |FWS’s and NMF%S’s] views on these

issues in advance of processing Alaska’s application may

avoid a repetition of that problem here.” /d. at 95a.

In response to EPA’s letter, FWS and NMFS con-

firmed their understanding that consultation is not re-

quired in this context. See 06-549 Pet. App. 107a (FWS

states that “there is no need to conduct Section 7 consul-

tations on proposed actions to approve State NPDES

programs because such actions are not the cause of any

impact on listed species and do not constitute discretion-

ary federal agency actions to which Section 7 applies”);

id. at 116a (NMFS “concur|s}] with EPA’s conclusion

that EPA is not required to engage in section 7 consulta-

tion on applications to approve State programs in situa-

tions under Section 402(b) of the CWA”). The agencies

have thus provided the very clarification that might have

occurred if the court of appeals had vacated the chal-

lenged EPA action on the ground of internal inconsis-

tency and had remanded for further administrative pro-

ceedings. Whether or not such a remand would have

been appropriate at an earlier stage of the case, it is

therefore unwarranted now.

CONCLUSION

The judgment of the court of appeals should be re-

versed.

Respectfully submitted.

ROGER R. MARTELLA

Acting General Counsel

MICHAEL G. LEE

JULIE K. WALTERS

Attorneys

Environmental Protection

Agency

FEBRUARY 2007

PAUL D. CLEMENT

Solicitor General

MATTHEW J. MCKEOWN

Acting Assistant Attorney

General

EDWIN S. KNEEDLER

Deputy Solicitor General

MALCOLM L. STEWART

Assistant to the Solicitor

General

ANDREW C. MERGEN

DAVID C. SHILTON

Attorneys

APPENDIX

1. Section 1536 of Title 16 provides:

Interagency cooperation

(a) Federal agency actions and consultations

(1) The Secretary shall review other programs ad-

ministered by him and utilize such programs in fur-

therance of the purposes of this chapter. All other

Federal agencies shall, in consultation with and with the

assistance of the Secretary, utilize their authorities in

furtherance of the purposes of this chapter by carrying

out programs for the conservation of endangered species

and threatened species listed pursuant to section 1533 of

this title.

(2) Each Federal agency shall, in consultation with

and with the assistance of the Secretary, insure that any

action authorized, funded, or carried out by such agency

(hereinafter in this section referred to as an “agency

action”) is not likely to jeopardize the continued exis-

tence of any endangered species or threatened species

or result in the destruction or adverse modification of

habitat of such species which is determined by the Sec-

retary, after consultation as appropriate with affected

States, to be critical, unless such agency has been

granted an exemption for such action by the Committee

pursuant to subsection (h) of this section. In fulfilling

the requirements of this paragraph each agency shall

use the best scientific and commercial data available.

(3) Subject to such guidelines as the Secretary may

establish, a Federal agency shall consult with the Sec-

retary on any prospective agency action at the request

of, and in cooperation with, the prospective permit or

(la)

license applicant if the applicant has reason to believe

that an endangered species or a threatened species may

be present in the area affected by his project and that

implementation of such action will likely affect such

species.

(4) Each Federal agency shall confer with the Secre-

tary on any agency action which is likely to jeopardize

the continued existence of any species proposed to be

listed under section 1533 of this title or result in the

destruction or adverse modification of critical habitat

proposed to be designated for such species. This para-

graph does not require a limitation on the commitment

of resources as described in subsection (d) of this

section.

(b) Opinion of Secretary

(1)(A) Consultation under subsection (a)(2) of this

section with respect to any agency action shall be

concluded within the 90-day period beginning on the

date on which initiated or, subject to subparagraph (B),

within such other period of time as is mutually agreeable

to the Secretary and the Federal agency.

(B) In the case of an agency action involving a per-

mit or license applicant, the Secretary and the Federal

agency may not mutually agree to conclude consultation

within a period exceeding 90 days unless the Secretary,

before the close of the 90th day referred to in sub-

paragraph (A)—

(i) if the consultation period proposed to be

agreed to will end before the 150th day after the date

on which consultation was initiated, submits to the

applicant a written statement setting forth—

(1) the reasons why a longer period is re-

quired,

(II) the information that is required to com-

plete the consultation, and

(LII) the estimated date on which consultation

will be completed; or

(ii) if the consultation period proposed to be

agreed to will end 150 or more days after the date on

which consultation was initiated, obtains the consent

of the applicant to such period.

The Secretary and the Federal agency may mutually

agree to extend a consultation period established under

the preceding sentence if the Secretary, before the close

of such period, obtains the consent of the applicant to

the extension.

(2) Consultation under subsection (a)(3) of this

section shall be concluded within such period as is

agreeable to the Secretary, the Federal agency, and the

applicant concerned.

(8)(A) Promptly after conclusion of consultation

under paragraph (2) or (3) of subsection (a) of this sec-

tion, the Secretary shall provide to the Federal agency

and the applicant, if any, a written statement setting

forth the Secretary’s opinion, and a summary of the

information on which the opinion is based, detailing how

the agency action affects the species or its critical

habitat. If jeopardy or adverse modification is found,

the Secretary shall suggest those reasonable and pru-

dent alternatives which he believes would not violate

subsection (a2) of this section and can be taken by the

Federal agency or applicant in implementing the agency

action.

4a :

(B) Consultation under subsection (a3) of this

section, and an opinion issued by the Secretary incident

to such consultation, regarding an agency action shall be

treated respectively as a consultation under subsection

(a)(2) of this section, and as an opinion issued after

consultation under such subsection, regarding that

action if the Secretary reviews the action before it is

commenced by the Federal agency and finds, and

notifies such agency, that no significant changes have

been made with respect to the action and that no signi-

ficant change has occurred regarding the information

used during the initial consultation.

(4) If after consvuitation under subsection (a)(2) of ©

this section, the Secretary concludes that—

(A) the agency action will not violate such sub-

section, or offers reasonable and prudent alterna-

tives which the Secretary believes would not

violate such subsection;

(B) the taking of an endangered species or a

threatened species incidental to the agency action

will not violate such subsection; and

species of a marine mammal is involved, the taking

is authorized pursuant to section 1371(a){5) of this

title;

the Secretary shall provide the Federal agency and the

applicant concerned, if any, with a written statement

that—

(i) specifies the impact of such incidental tak-

ing on the species,

(ii) specifies those reasonable and prudent

measures that the Secretary considers necessary or

appropriate to minimize such impact,

(iii) in the case of marine mammals, specifies

those measures that are necessary to comply with

section 1371(a)(5) of this title with regard to such

taking, and

(iv) sets forth the terms and conditions (in-

cluding, but not limited to, reporting requirements)

that must be complied with by the Federal agency or

applicant (if any), or both, to implement the mea-

sures specified under clauses (ii) and (iii).

(1) To facilitate compliance with the requirements of

subsection (a)(2) of this section, each Federal agency

shall, with respect to any agency action of such agency

for which no contract for construction has been entered

into and for which no construction has begun on Novem-

ber 10, 1978, request of the Secretary information

whether any species which is listed or proposed to be

listed may be present in the area of such proposed ac-

tion. If the Secretary advises, based on the best scienti-

fic and commercial! data available, that such species may

be present, such agency shall conduct a biological as-

sessment for the purpose of identifying any endangered

species or threatened species which is likely to be

affected by such action. Such assessment shall be com-

pleted within 180 days after the date on which initiated

(or within such other period as is mutually agreed to by

the Secretary and such agency, except that if a permit or

license applicant is involved, the 180-day period may not

be extended unless such agency provides the applicant,

before the close of such period, with a written statement

setting forth the estimated length of the proposed

extension and the reasons therefor) and, before any

contract for construction is entered into and before

construction is begun with respect to such action. Such

assessment may be undertaken as part of a Federal

agency's compliance with the requirements of section

102 of the National Environmental Policy Act of 1969 (42

U.S.C. 4332).

(2) Any person who may wish to apply for an exemp-

tion under subsection (g) of this section for that action

may conduct a biological assessment to identify any

endangered species or threatened species which is likely

to be affected by such action. Any such biological as-

sessment must, however, be conducted in cooperation

with the Secretary and under the supervision of the

appropriate Federal agency.

(d) Limitation on commitment of resources

After initiation of consultation required under sub-

section (a)(2) of this section, the Federal agency and the

permit or license applicant shall not make any irrever-

sible or irretrievable commitment of resources with

respect to the agency action which has the effect of fore-

closing the formulation or implementation of any rea-

sonable and prudent alternative measures which would

not violate subsection (a)(2) of this section.

(e) Endangered Species Committee -

(1) There is established a committee to be known as

the Endangered Species Committee (hereinafter in this

section referred to as thé “Committee”).

(2) The Committee shall review any application sub-

mitted to it pursuant to this section and determine in

accordanee with subsection (h) of this section whether or

not to grant an exemption from the requirements of

subsection (a)(2) of this section for the action set forth in

such application.

(3) The Committee shall be composed of seven mem-

bers as follows: ‘

(A) The Secretary of Agriculture.

(B) The Secretary of the Army.

Advisors.

(D) The Administrator of the Environmental

Protection Agency.

(E) The Secretary of the Interior.

(F) The Administrator of the National Oceanic

and Atmospheric Administration.

(G) The President, after consideration of any

recommendations received pursuant to subsection

(g)(2)(B) of this section shall appoint one individual

from each affected State, as determined by the Sec-

retary, to be a member of the Committee for the con-

sideration of the application for exemption for an

agency action with respect to which such recom-

mendations are made, not later than 30 days after an

application is submitted pursuant to this section.

(44 A) Members of the Committee shall receive no

additional pay on account of their service on the Com-

mittee.

(B) While away from their homes or regular places

of business in the performance of services for the Com-

mittee, members of the Committee shall be allowed

travel expenses, including per diem in lieu of sub-

sistence, in the same manner as persons employed inter-

mittently in the Government service are allowed

expenses under section 5703 of title 5.

(5)(A) Five members of the Committee or their

representatives shall constitute a quorum for the

transaction of any function of the Committee, except

that, in no case shall any representative be considered

in determining the existence of a quorum for the trans-

action of any function of the Committee if that function

involves a vote by the Committee on any matter before

the Committee.

(B) The Secretary of the Interior shall be the Chair-

‘

man of the Committee.

Chairman or five of its members.

(D) All meetings and records of the Committee shall

be open to the public.

(6) Upon request of the Committee. the head of any

Federal agency is authorized to detail, on a nonreim-

bursable basis, any of the personnel of such agency to

the Committee to assist it in carrying out its duties

under this section.

(7(A) The Committee may for the purpose of

carrying out its duties under this section hold such

hearings, sit and act at such times and places, take such

testimony, and receive such evidence, as the Committee

deems advisable.

(B) When so authorized by the Committee, any

member or agent of the Committee may take any action

which the Committee is authorized to take by this para-

graph.

Committee may secure directly from any Federal

agency information necessary to enable it to carry out

its duties under this section. Upon request of the

Chairman of the Committee, the head of such Federal

agency shall furnish such information to the Committee.

(D) The Committee may use the United States mails

in the same manner and upon the same conditions as a

Federal agency.

(E) The Administrator of General Services shall

provide to the Committee on a reimbursable basis such

administrative support services as the Committee may

request.

(8) In ecarrving out its duties under this section, the

Committee may promulgate and amend such rules,

regulations, and procedures, and issue and amend such

orders as it deems necessary.

(9) For the purpose of obtaining information nec-

essary for the consideration of an application for an

exemption under this section the Committee may issue

subpenas for the attendance and testimony of witnesses

and the production of relevant papers, books, and

documents.

(10) Inno case shall any representative, including a

representative of a member designated pursuant to

paragraph (3)(G) of this subsection, be eligible to cast a

vote on behalf of any member.

10a

(f) Promulgation of regulations; form and contents of

exemption application

Not later than 90 days after November 10, 1978, the

Secretary shall promulgate regulations which set forth

the form and manner in which applications for

exemption shall be submitted to the Secretary and the

information to be contained in such applications. Such

regulations shall require that information submitted in

an application by the head of any Federal agency with

respect to any agency action include, but not be limited

to—

(1) a description of the consultation process

carried out pursuant to subsection (a)(2) of this sec-

tion between the head of the Federal agency and the

Secretary; and

(2) astatement describing why such action cannot

be altered or modified to conform with the require-

ments of subsection (a)(2) of this section.

(g) Application for exemption; report to Committee

(1) A Federal agency, the Governor of the State in

which an agency action will occur, if any, or a permit or

license applicant may apply to the Secretary for an

exemption for an agency action of such agency if, after

consultation under subsection (a)(2) of this section, the

Secretary’s opinion under subsection (b) of this section

indicates that the agency action would violate subsection

(a)(2) of this section. An application for an exemption

shall be considered initially by the Secretary in the

manner provided for in this subsection, and shall be

considered by the Committee for a final determination

under subsection (h) of this section after a report is

made pursuant to paragraph (5). The applicant for an

lla

exemption shall be referred to as the “exemption

applicant” in this section.

(2)(A) An exemption applicant shall submit a written

application to the Secretary, in a form prescribed under

subsection (f) of this section, not later than 90 days after

the completion of the consultation process; except that,

in the case of any agency action involving a permit or

license applicant, such application shall be submitted not

later than 90 days after the date on which the Federal

agency concerned takes final agency action with respect

to the issuance of the permit or license. For purposes of

the preceding sentence, the term “final agency action”

means (i) a disposition by an agency with respect to the

issuance of a permit or license that is subject to ad-

ministrative review, whether or not such disposition is

subject to judicial review; or (ii) if administrative review

is sought with respect to such disposition, the decision

resulting after such review. Such application shall set

forth the reasons why the exemption applicant considers

that the agency action meets the requirements for an

exemption under this subsection.

(B) Upon receipt of an application for exemption for

an agency action under paragraph (1), the Secretary

shall promptly (i) notify the Governor of each affected

State, if any, as determined by the Secretary, and re-

quest the Governors so notified to recommend indivi-

duals to be appointed to the Endangered Species Com-

mittee for consideration of such application; and (ii)

publish notice of receipt of the application in the Federal

tained in the application and a description of the agency

action With respect to which the application for exemp-

tion has been filed.

12a

(3) The Secretary shall within 20 days after the

receipt of an application for exemption, or within such

other period of time as is mutually agreeable to the

exemption applicant and the Secretary—

(A) determine that the Federal agency concerned

and the exemption applicant have—

(i) carried out the consultation responsibilities

described in subsection (a) of this section in good

faith and made a reasonable and responsible effort

to develop and fairly consider modifications or

reasonable and prudent alternatives to the pro-

posed agency action which would not violate sub-

section (a)(2) of this section;

(ii) conducted any biological assessment re-

quired by subsection (c) of this section; and

(iii) to the extent determinable within the time

provided herein, refrained from making any ir-

reversible or irretrievable commitment of re-

sources prohibited by subsection (d) of this

section; or

(B) deny the application for exemption because

the Federal agency concerned or the exemption

applicant have not met the requirements set forth in

subparagraph (A)(i), (ii), and (ili).

The denial of an application under subparagraph (B)

shall be considered final agency action for purposes of

chapter 7 of title 5.

(4) If the Secretary determines that the Federal

agency concerned and the exemption applicant have met

the requirements set forth in paragraph (3)(A)(i), (ii),

and (iii) he shall, in consultation with the Members of

l3a

the Committee, hold a hearing on the application for

exemption in accordance with sections 554, 555, and 556

(other than subsection (b)(1) and (2) thereof) of title 5

and prepare the report to be submitted pursuant to

paragraph (5).

(5) Within 140 days after making the determinations

under paragraph (3) or within such other period of time

as is mutually agreeable to the exemption applicant and

the Secretary, the Secretary shall submit to the Com-

mittee a report discussing—

(A) the availability of reasonable and prudent

alternatives to the agency action, and the nature and

extent of the benefits of the agency action and of

alternative courses of action consistent with con-

serving the species or the critical habitat;

(B) a summary of the evidence concerning

whether or not the ageney action is in the public

interest and is of national or regional significance;

enhancement measures which should be considered

by the Committee; and

(D) whether the Federal agency concerned and

the exemption applicant refrained from making any

irreversible or irretrievable commitment of re-

sources prohibited by subsection (d) of this section.

(6) To the extent practicable within the time re-

quired for action under subsection (g) of this section,

and except to the extent inconsistent with the require-

ments of this section, the consideration of any applica-

tion for an exemption under this section and the conduct

of any hearing under this subsection shall be in

l4a

accordance with sections 554, 555, and 556 (other than

subsection (b)(3) of section 556) of title 5.

(7) Upon request of the Secretary, the head of any

Federal agency is authorized to detail, on a nonreim-

bursable basis, any of the personnel of such agency to

the Secretary to assist him in carrying out his duties

under this section.

(8) All meetings and records resulting from ac-

tivities pursuant to this subsection shall be open to the

public.

(h) Grant of exemption

(1) The Committee shall make a final determination

whether or not to grant an exemption within 30 days

after receiving the report of the Secretary pursuant to

subsection (g)(5) of this section. The Committee shall

grant an exemption from the requirements of subsection

(a)(2) of this section for an agency action if, by a vote of

not less than five of its members voting in person-—

(A) it determines on the record, based on the

report of the Secretary, the record of the hearing

held under subsection (g)(4) of this section and on

such other testimony or evidence as it may receive,

that—

(i) there are no reasonable and prudent alter-

natives to the agency action;

(ii) the benefits of such action clearly outweigh

the benefits of alternative courses of action con-

sistent with conserving the species or its critical

habitat, and such action is in the public interest;

(ii) the action is of regional or national signi-

ficance: and

15a

(iv) neither the Federal agency concerned nor

the exemption applicant made any irreversible or

irretrievable commitment of resources prohibited

by subsection (d) of this section; and

(B) it establishes such reasonable mitigation and

enhancement measures, including, but not limited to,

live propagation, transplantation, and habitat ac-

quisition and improvement, as are necessary and

appropriate to minimize the adverse effects of the

agency action upon the endangered species, threat-

ened species, or critical habitat concerned.

Any final determination by the Committee under this

subsection shall be considered final agency action for

purposes of chapter 7 of Title 5.

(2)(A) Except as provideci in subparagraph (B), an

exemption for an agency action granted under para-

graph (1) shall constitute a permanent exemption with

respect to all endangered or threatened species for the

purposes of completing such agency action—

(i) regardless whether the species was identified

in the biological assessment; and

(ii) only if a biological assessment has been con-

ducted under subsection (c) of this section with

respect to such agency aciion.

(B) An exemption shall be permanent under sub-

paragraph (A) unless—

(i) the Secretary finds, based on the best scienti-

fic and commercial data available, that such exemp-

tion would result in the extinction of a species that

Was not the subject of consultation under subsection

(a)(2) of this section or was not identified in any

l6a

biological assessment conducted under subsection (¢)

of this section, and

(ii) the Committee determines within 60 days

after the date of the Secretary’s finding that the

exemption should not be permanent.

If the Secretary makes a finding described in clause (i),

the Committee shall meet with respect to the matter

within 30 days after the date of the finding.

(i) Review by Secretary of State; violation of inter-

national treaty or other international obligation of

United States

Notwithstanding any other provision of this chapter,

the Committee shall be prohibited from considering for

exemption any application made to it, if the Secretary of

State, after a review of the proposed agency action and

its potential implications, and after hearing, certifies, in

writing, to the Committee within 60 days of any appli-

cation made under this section that the granting of any

such exemption and the carrying out of such action

would be in violation of an international treaty obliga-

tion or other international obligation of the United

States. The Secretary of State shall, at the time of such

certification, publish a copy thereof in the Federal

(j) Exemption for national security reasons

Notwithstanding any other provision of this chapter,

the Committee shall grant an exemption for any agency

action if the Secretary of Defense finds that such exemp-

tion is necessary for reasons of national security.

17a

(k) Exemption decision not considered major Federal

action; environmental impact statement

An exemption decision by the Committee under this

section shall not be a major Federal! action for purposes

of the National Environmental Policy Act of 1969 [42

U.S.C. 4321 et seq.|: Provided, That an environmental

impact statement which discusses the impacts upon

endangered species or threatened species or their

critical habitats shall have been previously prepared

with respect to any agency action exempted by such

order.

(1) Committee order granting exemption; cost of miti-

gation and enhancement measures; report by appli-

cant to Council on Environmental Quality

(1) If the Committee determines under subsection

(h) of this section that an exemption should be granted

with respect to any agency action, the Committee shall

issue an order granting the exemption and specifying

the mitigation and enhancement measures established

pursuant to subsection (h) of this section which shall be

carried out and paid for by the exemption applicant in

implementing the agency action. All necessary mitiga-

tion and enhancement measures shall be authorized

prior to the implementing of the agency action and

funded concurrently with all other project features.

(2) The applicant receiving such exemption shall

include the costs of such mitigation and enhancement

measures within the overall costs of continuing the

proposed action. Notwithstanding the preceding sen-

tence the costs of such measures shall not be treated as

project costs for the purpose of computing benefit-cost

or other ratios for the proposed action. Any applicant

18a

may request the Secretary to carry out such mitigation

and enhancement measures. The costs incurred by the

Secretary in carrying out any such measures shall be

paid by the applicant receiving the exemption. No later

than one year after the granting of an exemption, the

exemption applicant shall submit to the Council on

Environmental Quality a report describing its com-

pliance with the mitigation and enhancement measures

prescribed by this section. Such a report shall be sub-

mitted annually until all such mitigation and enhance-

ment measures have been completed. Notice of the

public availability of such reports shall be published in

the Federal Register by the Council on Environmental

Quality.

(m) Notice requirement for citizen suits not applicable

The 60-day notice requirement of section 1540(g) of

this title shall not apply with respect to review of any

final determination of the Committee under subsection

(h) of this section granting an exemption from the

requirements of subsection (a)(2) of this section.

(n) Judicial review

Any person, as defined by section 1532(13) of this

title, may obtain judicial review, under chapter 7 of title

5, of any decision of the Endangered Species Committee

under subsection (h) of this section in the United States

Court of Appeals for (1) any circuit wherein the agency

- action concerned will be, or is being, carried out, or (2)

in any case in which the agency action will be, or is

being, carried out outside of any circuit, the District of

Columbia, by filing in such court within 90 days after the

date of issuance of the decision, a written petition for

review. A copy of such petition shall be transmitted by

19a

the clerk of the court to the Committee and the Com-

mittee shall file in the court the record in the pro-

ceeding, as provided in section 2112 of title 28. Attor-

neys designated by the Endangered Species Committee

may appear for, and represent the Committee in any

action for review under this subsection.

(o) Exemption as providing exception on taking of

endangered species

Notwithstanding sections 1533(d) and 1538(a)(1)(B)

and (C) of this title, sections 1371 and 1372 of this title,

or any regulation promulgated to implement any such

section—

(1) any action for which an exemption is granted

under subsection (h) of this section shall not be

- considered to be a taking of any endangered species

or threatened species with respect to any activity

which is necessary to carry out such action; and

(2) any taking that is in compliance with the

terms and conditions specified in a written state-

ment provided under subsection (b)(4)(iv) of this

section shall not be considered to be a prohibited

taking of the species concerned.

(p) Exemptions in Presidentially declared disaster areas

In any area which has been declared by the Presi-

dent to be a major disaster area under the Disaster Re-

lief and Emergency Assistance Act [42 U.S.C. 5121 et

seq.|, the President is authorized to make the deter-

minations required by subsections (g) and (h) of this

section for any project for the repair or replacement of

a public facility substantially as it existed prior to the

disaster under section 405 or 406 of the Disaster Relief

and ‘Emergency Assistance Act [42 U.S.C. 5171 or 5172].

20a

and which the President determines (1) is necessary to

prevent the recurrence of such a natural disaster and to

reduce the potential loss of human life, and (2) to involve

an emergency situation which does not allow the ordi-

nary procedures of this section to be followed. Notwith-

standing any other provision of this section, the Com-

mittee shall accept the determinations of the President

under this subsection.

2. Section 1342 of Title 33 provides:

National pollutant discharge elimination system.

* * * *

(b) State permit programs

At any time after the promulgation of the guidelines

required by subsection (i)(2) of section 1514 of this title,

the Governor of each State desiring to administer its

own permit program for discharges into navigable

waters within its jurisdiction may submit to the Ad-

ministrator a full and complete description of the pro-

gram it proposes to establish and administer under

State law or under an interstate compact. In addition,

such State shall submit a statement from the attorney

general (or the attorney for those State water pollution

control agencies which have independent legal counsel),

or from the chief legal officer in the case of an interstate

agency, ‘iat the laws of such State, or the interstate

compact, as the case may be, provide adequate authority

to carry out the described program. The Administrator

shall approve each such submitted program unless he

determines that adequate authority does not exist:

(1) To issue permits which—

Zla

(A) apply, and insure compliance with, any

applicable requirements of sections 1311, 1312, 1316,

1317, and 1348 of this title;

(B) are for fixed terms not exceeding five years;

and

including, but not limited to, the following:

(i) violation of any condition of the permit;

(ii) obtaining a permit by misrepresentation, or

failure to disclose fuily all relevant facts;

(iii) change in any condition that requires either

a temporary or permanent reduction or elimi-

nation of the permitted discharge;

(D) control the disposai of pollutants into wells;

(2)(A) To issue permits which apply, and insure

compliance with, all applicable requirements of section

1318 of this title; or

(B) To inspect, monitor, enter, and require reports

to at least the same extent as required in section 1518 of

this title;

(3) To insure that the public, and any other State

the waters of which may be affected, receive notice of

each application for a permit and to provide an oppor-

tunity for public hearing before a ruling on each such

application; |

(4) To insure that the Administrator receives notice

of each application (including a copy thereof) for a

permit;

(5) To insure that any State (other than the per-

mitting State), whose waters may be affected by the is-

22a

suance of a permit may submit written recommendations

to the permitting State (and the Administrator) with

respect to any permit application and, if any part of such

written recommendations are not accepted by the

permitting State, that the permitting State will notify

such affected State (and the Administrator) in writing of

its failure to so accept such recommendations together

with its reasons for so doing;

(6) To insure that no permit will be issued if, in the

judgment of the Secretary of the Army acting through

the Chief of Engineers, after consultation with the Sec-

retary of the department in which the Coast Guard is

operating, anchorage and navigation of any of the

navigable waters would be substantially impaired

thereby;

(7) To abate violations of the permit or the permit

program, including civil and criminal penalties and other

ways and means of enforcement;

(8) To insure that any permit for a discharge from

a publicly owned treatment works includes conditions to

require the identification in terms of character and

volume of pollutants of any significant source intro-

ducing pollutants subject to pretreatment standards

under section 1317(b) of this title into such works and a

program to assure compliance with such pretreatment

standards by each such source, in addition to adequate

notice to the permitting agency of (A) new introductions

into such works of pollutants from any source which

would be a new source as defired in section 1316 of this

title if such source were discharging pollutants, (B) new

introductions of pollutants into such works from a

source which would be subject to section 1311 of this

title if it were discharging such pollutants, or (C) a sub-

23a

stantial change in volume or character of pollutants

being introduced into such works by a source intro-

ducing pollutants into such works at the time of issuance

of the permit. Such notice shall include information on

the quality and quantity of effluent to be introduced into

such treatment works and any anticipated impact of

such change in the quantity or quality of effluent tu be

discharged from such publicly owned treatment works;

and

(9) To insure that any industrial user of any publicly

owned treatment works will comply with sections

1284(b), 1317, and i318 of this title.

* *¢*+ * #k *

3. Section 402.02 of Title 50 Code of Federal Regula-

tions provides:

Definitions

Act means the Endangered Species Act of 1973, as

amended, 16 U.S.C. 1531 et seq.

Action means all activities or programs of any kind

authorized, funded, or carried out, in whole or in part,

by Federal agencies in the United States or upon the

high seas. Examples include, but are not limited to:

(a) actions intended to conserve listed species or

their habitat;

(b) the promulgation of regulations;

ments, rights-of-way, permits, or grants-in-aid; or

(d) actions directly or indirectly causing modifica-

tions to the iand, water, or air.

24a

Action area means all areas to be affected directly or

indirectly by the Federal action and not merely the

immediate area involved in the action.

Applicant refers to any person, as defined in section

3(13) of the Act, who requires formal approval or

authorization from a Federal agency as a prerequisite to

conducting the action.

Biological assessment refers to the information

prepared by or under the direction of the Federal

agency concerning listed and proposed species and

designated and proposed critical habitat that may be

present in the action area and the evaluation potential

effects of the action on such species and habitat.

Biological opinion is the document that states the

opinion of the Service as to whether or not the Federal

action is likely to jeopardize the continued existence of

listed species or result in the destruction or adverse

modification of critical habitat.

Conference is a process which involves informal dis-

cussions between a Federal agency and the Service

under section 7(a)(4) of the Act regarding the impact of

an action on proposed species or proposed critical

habitat and recommendations to minimize or avoid the

adverse effects.

Conservation reconmendations are suggestions of

the Service regarding discretionary measures to mini-

mize or avoid adverse effects of a proposed action on

listed species or critical habitat or regarding the deve-

lopment of information.

Critical habitat refers to an area designated as

critical habitat listed in 50 CFR Parts 17 or 226.

25a

Cumulative effects are those effects of future State or

private activities, not involving Federal activities, that

are reasonably certain to occur within the action area of

the Federal action subject to consultation.

Designated non-Federal representative reters to a

person designated by the Federal agency as its repre-

sentative to conduct informal consultation and/or to

prepare any biological assessment.

Destruction or adverse modification means a direct

or indirect alteration that appreciably diminishes the

value of critical habitat for both the survival and

recovery of a listed species. Such alterations include,

but are not limited to, alterations adversely modifying

any of those physical or biological features that were the

basis for determining the habitat to be critical.

Director refers to the Assistant Administrator for

Fisheries for the National Oceanic and Atmospheric

Administration, or his authorized representative; or the

Fish and Wildlife Service regional director, or his

authorized representative, for the region where the

action would be carried out.

Early consultation is a process requested by a

Federal agency on behalf of a prospective applicant

under section 7(a)(3) of the Act.

Effects of the action refers to the direct and indirect

effects of an action on the species or critical habitat,

together with the effects of other activities that are

interrelated or interdependent with that action, that will

be added to the environmental baseline. The environ-

mental baseline includes the past and present impacts of

all Federal, State, or private actions and other human

activities in the action area, the anticipated impacts of

26a-

all proposed Federal projects in the action area that

have already undergone formal or early section 7 con-

sultation, and the impact of State or private actions

which are contemporaneous with the consultation in

process. Indirect effects are those that are caused by

the proposed action and are later in time, but still are

reasonably certain to occur. Interrelated actions are

those that are part of a larger action and depend on the

larger action for their justification. Interdependent

actions are those that have no independent utility apart

from the action under consideration.

Formal consultation is a process between the Service

and the Federal agency that commences with the

Federal agency’s written request for consultation under

section 7(a)(2) of the Act and concludes with the Ser-

vice’s issuance of the biological opinion under section

7(b)(3) of the Act.

Incidental take refers to takings that result from, but

are not the purpose of, carrying out an otherwise lawful

activity conducted by the Federal agency or applicant.

Informal consultation is an optional process that

includes all discussions, correspondence, etc., between

the Service and the Federal agency or the designated

non-F ederal representative prior to formal consultation,

if required.

Jeopardize the continued existence of means to

engage in an action that reasonably would be expected,

directly or indirectly, to reduce appreciably the likeli-

hood of both the survival and recovery of a listed species

in the wild by reducing the reproduction, numbers, or

distribution of that species.

27a

Listed species means any species of fish, wildlife, or

plant which has been determined to be endangered or

threatened under section 4 of the Act. Listed species

are found in 50 CFR 17.11-1712.

Major construction activity is a construction project

(or other undertaking having similar physical impacts)

which is a major Federal action significantly affecting

the quality of the human environment as referred to in

the National Environmental Policy Act [NEPA, 42

U.S.C. 4332(2)(C)].

Preliminary biological opinion refers to an opinion

issued as a result of early consultation.

Proposed critical habitat means habitat proposed in

the FEDERAL REGISTER to be designated or revised as

critical habitat under section 4 of the Act for any listed

or proposed species.

Proposed species means any species of fish, wildlife,

or plant that is proposed in the FEDERAL REGISTER to

be listed under section 4 of the Act.

Reasonable and prudent alternatives refer to alter-

native actions identified during formal consultation that

can be implemented in a manner consistent with the

intended purpose of the action, that can be implemented

consistent with the scope of the Federal agency's legal

authority and jurisdiction, that is economically and

technologically feasible, and that the Director believes

would avoid the likelihood of jeopardizing the continued

evistence of listed species or resulting in the destruction

or adverse modification of critical habitat.

Reasonable and prudent measures refer to those

actions the Director believes necessary or appropriate

28a

to minimize the impacts, i.e., amount or extent, of inci-

dental take.

Recovery means improvement in the status of listed

species to the point at which listing is no longer appro-

priate under the criteria set out in section 4(a)(1) of the

Act.

Service means the U.S. Fish and Wildlife Service or

the National Marine Fisheries Service, as appropriate.

4. Section 402.03 of Title 50 Code of Federal Regula-

tions provides:

Applicability.

Section 7 and the requirements of this Part apply to

all actions in which there is discretionary Federal in-

volvement or control.

5. Section 402.14 of Title 50 Code of Federal Regula-

tions provides:

Formal Consultation

(a) Requirement for formal consultation. Each

Federal agency shall review its actions at the earliest

possible time to determine whether any action may

affect listed species or critical habitat. If such a deter-

mination is made, formal consultation is required, except

as noted in paragraph (b) of this section. The Director

may request a Federal agency to enter into consultation

if he identifies any action of that agency that may affect

listed species or critical habitat and for which there has

been no consultation. When such a request is made, the

Director shall forward to the Federal agency a written

explanation of the basis for the request.

29a

(b) Ewceptions. (1) A Federal agency need not ini-

tiate formal consultation if, as a result of the preparation

of a biological assessment under § 402.12 or as a result

of informal consultation with the Service under § 402.13,

the Federal agency determines, with the written con-

currence of the Director, that the proposed action is not

likely to adversely affect any listed species or critical

habitat.

(2) A Federal agency need not initiate formal con-

sultation if a preliminary biological opinion, issued after

early consultation under § 402.11, is confirmed as the

final biological opinion.

request to initiate formal consultation shall be submitted

to the Director and shall include:

(1) A description of the action to be considered;

(2) A description of the specific area that may be

affected by the action;

(3) A description of any listed species or critical

habitat that may be affected by the action;

(4) A description of the manner in which the action

may affect any listed species or critical habitat and an

analvsis of any cumulative effects;

(5) Relevant reports, including any environmental

impact statement, environmental assessment, or biolo-

gical assessment prepared; and

(6) Any other relevant available information on the

action, the affected listed species, or critical habitat.

Formal consultation shall not be initiated by the Federal

agency until any required biological assessment has

been completed and submitted to the Director in accor-

30a

dance with § 402.12. Any request for formal consulta-

tion may encompass, subject to the approval of the

Director, a number of similar individual actions within

a given geographical area or a segment of a compre-

hensive plan. This does not relieve the Federal agency

of the requirements for considering the effects of the

action as a whole.

(d) Responsibility to provide best scientific and com-

mercial data available. The Federal agency requesting

forma! consultation shall provide the Service with the

best scientific and commercial data available or which

can be obtained during the consultation for an adequate

review of the effects that an action may have upon listed

species or critical habitat. This information may include

the results of studies or surveys conducted by the

Federal agency or the designated non-Federal repre-

sentative. The Federal agency shall provide any appli-

cant with the opportunity to submit information for

consideration during the consultation.

(e) Duration and extension of formal consultation.

Formal consultation concludes within 90 days after its

initiation unless extended as provided below. If an

applicant is not involved, the Service and the Federal

agency may mutually agree to extend the consultation

for a specific time period. If an applicant is involved, the

Service and the Federal agency may mutually agree to

extend the consultation provided that the Service

submits to the applicant, before the close of the 90 days,

a written statement setting forth:

(1) The reasons why a longer period is required,

(2) The information that is required to complete the

consultation, and

sla

(3) The estimated date on which the consultation will

be completed.

A consultation involving an applicant cannot be extended

for more than 60 days without the consent of the appli-

cant. Within 45 days after concluding formal consulta-

tion, the Service shall deliver a biological opinion to the

Federal agency and any applicant.

(f) Additional data. When the Service determines

that additional data would provide a better information

base from which to formulate a biological opinion, the

Director may request an extension of formal consulta-

tion and request that the Federal agency obtain addi-

tional data to determine how or to what extent the action

may affect listed species or critical habitat. If formal

consultation is extended by mutual agreement according

to § 402.14(e), the Federal agency shall obtain, to the

extent practicable, that data which can be developed

within the scope of the extension. The responsibility for

conducting and funding any studies belongs to the

Federal agency and the applicant, not the Service. The

Service’s request for additional data is not to be con-

strued as the Service's opinion that the Federal agency

has failed to satisfy the information standard of section

7(a)(2) of the Act. If no extension of formal consultation

is agreed to, the Director will issue a biological opinion

using the best scientific and commercial data available.

(g) Service responsibilities. Service responsibilities

during formal consultation are as follows:

(1) Review all relevant information provided by the

Federal agency or otherwise available. Such review may

include an on-site inspection of the action area with

representatives of the Federal agency and the applicant.

32a

(2) Evaluate the current status of the listed species

or critical habitat.

(3) Evaluate the effects of the action and cumulative

effects on the listed species or critical habitat.

(4) Formulate its biological opinion as to whether the

action, taken together with cumulative effects, is likely

to jeopardize the continued existence of listed species or

result in the destruction or adverse modification of

critical habitat. ;

(5) Discuss with the Federal agency and any appli-

cant the Service’s review and evaluation conducted

under paragraphs (g)(1)-(3) of this section, the basis for

any finding in the biological opinion, and the availability

of reasonable and prudent alternatives (if a jeopardy

opinion is to be issued) that the agency and the applicant

can take to avoid violation of section 7(a)(2). The Ser-

vice wiil utilize the expertise of the Federal agency and

any applicant in identifying these alternatives. If re-

quested, the Service shall make available to the Federal

agency the draft biological opinion for the purpose of

analyzing the reasonable and prudent alternatives. The

45-day period in which the biological opinion must be

delivered will not be suspended unless the Federal

agency secures the written consent of the applicant to an

extension to a specific date. The applicant may request

a copy of the draft opinion from the Federal agency. All

comments on the draft biological opinion must be

submitted to the Service through the Federal agency,

although the applicant may send a copy of its comments

directly to the Service. The Service will not issue its

biological opinion prior to the 45-day or extended dead-

line while the draft is under review by the Federal

agency. However, if the Federal agency submits com-

33a

ments to the Service regarding the draft biological

opinion within 10 days of the deadline for issuing the

opinion, the Service is entitled to an automatic 10-day

extension on the deadline.

(6) Formulate discretionary conservation recommen-

dations, if any, which will assist the Federal agency in

reducing or eliminating the impacts that its proposed

action may have on listed species or critical habitat.

(7) Formulate a statement concerning incidental

take, if such take may occur.

(8) In formulating its biological opinion, any rea-

sonable and prudent alternatives, and any reasonable

and prudent measures, the Service will use the best

scientific and commercial data available and will give

appropriate consideration to any beneficial actions taken

by the Federal agency or applicant, including any

actions taken prior to the initiation of consultation.

(h) Biological opinions. The biological opinion shall

include:

(1) A summary of the information on which the

opinion is based;

(2) A detailed discussion of the effects of the action

on listed species or critical habitat; and

(3) The Service’s opinion on whether the action is

likely to jeopardize the continued existence of a listed

species or result in the destruction or adverse modifica-

tion of critical habitat (a “jeopardy biological opinion”);

or, the action is not likely to jeopardize the continued

existence of a listed species or result in the destruction

or adverse modification of critical habitat (a “no jeo-

pardy” biological opinion). A “jeopardy” biological opin-

34a

ion shall include reasonable and prudent alternatives, if

any. If the Service is unable to develop such alterna-

tives, it will indicate that to the best of its knowledge

there are no reasonable and prudent alternatives.

(i) Incidental take.

(1) In those cases where the Service concludes that

an action (or the implementation of any reasonable and

prudent alternatives) and the resultant incidental take

of listed species will not violate section 7(a)(2), and, in

the case of marine mammals, where the taking is

authorized pursuant to section 101(a)(5) of the Marine

Mammal Protection Act of 1972, the Service will provide

with the biological opinion a statement concerning

incidental take that:

(i) Specifies the impact, i.e., the amount or extent, of

such incidental taking on the species;

(ii) Specifies those reasonable and prudent measures

that the Director considers necessary or apprepriate to

minimize such impact; ,

(iii) In the case of marine mammals, specifies those

measures that are necessary to comply with section

101(a)(5) of the Marine Mammal Protection Act of 1972

and applicable regulations with regard to such taking;

(iv) Sets forth the terms and conditions (including,

but not limited to, reporting requirements) that must be

complied with by the Federal agency or any applicant to

implement the measures specified under paragraph

(i)(1)@i) and (1)(1 (iii) of this section; and

(v) Specifies the procedures to be used to handle or

dispose of any individuals of a species actually taken.

35a

(2) Reasonable and prudent measures, along with the

terms and conditions that implement them, cannot alter

the basic design, location, scope, duration, or timing of

the action and may involve only minor changes.

(3) In order to monitor the impacts of incidental take,

the Federal agency or any applicant must report the

progress of the action and its impact on the species to

the Service as specified in the incidental take statement.

The reporting requirements will be established in

accordance with 50 CFR 13.45 and 18.27 for FWS and 50

CFR 220.45 and 228.5 for NMFS. —

(4) If during the course of the action the amount or

extent of incidental taking, as specified under paragraph

(i)1)(i) of this Section, is exceeded, the Federal agency

must reinitiate consultation immediately.

(5) Any taking which is subject to a statement as

specified in paragraph (i)(1) of this section and which is

in compliance with the terms and conditions of that

statement is not a prohibited taking under the Act, and

no other authorization or permit under the Act is

required. |

(j) Conservation recommendations. The Service

may provide with the biological opinion a statement

containing discretionary conservation recommendations.

Conservation recommendations are advisory and are not

intended to carry any binding legal force.

(k) Incremental steps. When the action is authorized

by a statute that allows the agency to take incremental

steps toward the completion of the action, the Service

shall, if requested by the Federal agency, issue a bielo-~

gical opinion on the incremental step being considered,

including its views on the entire action. Upon the

36a

issuance of such a biological opinion, the Federal agency

may proceed with or authorize the incremental steps of

the action if:

(1) The biological opinion does not conclude that the

incremental step would violate section 7(a)(2);

(2) The Federal agency continues consultation with

respect to the entire action and obtains biological

opinions, as required, for each incremental step;

(3) The Federal agency fulfills its continuing obliga-

tion to obtain sufficient data upon which to base the final

biological opinion on the entire action;

(4) The incremental step does not violate section 7(d)

of the Act concerning irreversible or irretrievable

commitment of resources; and

(5) There is a reasonable likelihood that the entire

action will not violate section 7(a)(2) of the Act.

(1) Termination of consultation. (1) Formal con-

sultation is terminated with the issuance of the biolo-

gical opinion.

(2) If during any stage of consultation a Federal

agency determines that its proposed action is not likely

to occur, the consultation may be terminated by written

notice to the Service.

(3) If during any stage of consultation a Federal

agency determines, with the concurrence of the Direc-

tor, that its proposed action is not likely to aciversely

affect any listed species or critical habitat, the consulta-

tion is terminated.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.