Petitioners Brief — Environmental Protection Agency v. Defenders of Wildlife

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

Nos. 06-340 and 06-549

(3)

In The

Supreme Court of the Anited States

NATIONAL ASSOCIATION OF

HOME BUILDERS, et ai.,

Vs.

Petitioners,

DEFENDERS OF WILDLIFE, et al.,

Respondents.

UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

VS.

Petitioner.

DEFENDERS OF WILDLIFE, et a/.,

Respondents.

On Writs Of Certiorari To The

United States Court Of Appeals

For The Ninth Circuit

OPENING BRIEF OF PETITIONERS NATIONAL

ASSOCIATION OF HOME BUILDERS, et al.

RUSSELL S. FRYE

Fryt LAW PLLC

3050 K Street NW, Suite 400

Washington, DC 20007-5108

(202) 527-8267

NORMAN D. JAMES

(Counsel of Record)

FENNEMORE CRAIG, P.C.

3003 North Central Avenue,

Suite 2600

Phoenix, AZ 85012-2913

(602) 916-5346

DUANE J. DESIDERIO

THOMAS J. WARD

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15th Street. NW

Washington, DC 20005-2800

(202) 266-8200

ite kr LAW RK!

meke \bde

, VHRINTING, ¢ ei “iene 95 feted

ere '

t’? sl

QUESTIONS PRESENTED

1. Whether a court can append additional criteria to

Section 402(b) of the Clean Water Act, 33 U.S.C. § 1342(b),

by requiring State NPDES programs to include protections

for endangered species.

2. Whether Section 7(a)(2) of the Endangered

Species Act, 16 U.S.C. § 1536(a)(2), overrides statutory

mandates or constraints imposed on an agency’s discretion

by other Acts of Congress.

3. Whether Section 7(a)(2) of the Endangered

Species Act constitutes an independent source of authority,

requiring federal agencies to take affirmative action to

benefit endangered species even when an agency’s

enabling statutes preclude such action.

4. Whether the court of appeals incorrectly applied

the holding of Department of Transp. v. Public Citizen, 541

U.S. 752 (2004), in concluding that EPA’s approval of

Arizona’s NPDES program was the legally relevant cause

of impacts to endangered species resulting from future

private land use activities.

5. Whether the court of appeals correctly held that

EPA’s decision to transfer permitting authority to Arizona

under Section 402(b) of the Clean Water Act was arbitrary

and capricious because it was based on inconsistent

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

Species Act; and, if so, whether the court of appeals should

have remanded to EPA for further proceedings without

ruling on the interpretation of Section 7(a)(2).

PARTIES TO THE PROCEEDING

Petitioners are National Association of Home

Builders, Southern Arizona Home Builders Association,

Home Builders Association of Central Arizona, Arizona

Chamber of Commerce, Arizona Mining Association,

Arizona Association of Industries, Greater Phoenix

Chamber of Commerce and American Forest & Paper

Association (“Home Builders”), and the U.S. Environmental

Protection Agency.

Respondents are Defenders of Wildlife, Center for

Biological Diversity and Craig Miller.

Other parties before the court of appeals were the

U.S. Fish and Wildlife Service and the State of Arizona.

iil

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................sseesssssserereececeseerens i

PARTIES TO THE PROCEEDING ....................000ccceeees il

ee TT cic cehnclaiheiisihienineaicasiecidieninintiieuetgepnansdion 1

ITT ciiesciiisisisem laisse linet ied 1

STATUTORY AND REGULATORY PROVISIONS

a tsasiscainicecieieitdnpeencactontiinnidvidniniilaceisniidiiiniithigtonte 1

TTT TCADA eT LE 1

1. The Clean Water Act and the NPDES program.... 3

2. The States’ authority to administer the NPDES

I sicsccisvitscnsectecresenenncninnnninvnsnensiaiacnvieneds 5

3. The Endangered Species Act and the Section 7

ID ciiteictcnipncnicnessvatniientannsntiaesinti 8

4. EPA’s previous practice in approving State

ee AIR oicinsncsensnniensdinpatucsnestemeposeevens 11

5. The administrative proceedings concerning

Arizona’s NPDES program submission ............. 14

6. The court proceedings below ................:::ccceeeeeeee 20

SUMMARY OF ARGUMENT. ..................cccesseeeeeeeeees a

I ccicieccitcauiaasiahlerpantcpliieinilentisnceuibeaetiicinleciciniehauiininiulibdan 25

I. The plain language of Section 402(b) of the

Clean Water Act precludes the application of

the Endangered Species Act to EPA’s approval

of State NPDES programs ..................::0000ceeeeeees 25-

A. The criteria specified by Congress in

Section 402(b) of the Clean Water Act are

exclusive and EPA must approve State

NPDES programs meeting those criteria... 25

TABLE OF CONTENTS - Continued

Page

B. The court of appeals’ holding violates the

canons of statutory construction and

results in the implied repeal of Section

402(b) of the Clean Water Act .................004 28

II. The court of appeals failed to defer to the

Services’ long-standing interpretation of

Section 7(a)(2) of the Endangered Species Act... 30

III. Section 7(aX2) of the Endangered Species Act

does not grant Federal agencies independent

authority to act for the benefit of listed species.... 35

A. The language of the Endangered Species

Act of 1973 does not support the court of

appeals’ interpretation of Section 7(a)(2)..... 35

B. TVA v. Hill does not support the court of

appeals’ interpretation of Section 7(a)(2)..... 37

C. The 1978 and 1979 amendments to the

Endangered Species Act did not expand

the scope and applicability of Section

SEINE cencideictinisaibinsbiiteniieiledentedidinaiieupenpecvenstesen 39

IV. EPA’s approval of Arizona’s NPDES program

was not the legally relevant cause of future

impacts to listed species resulting from private

PUNT iinet iceapescieiniasiebeetiiatibneibiniietliggnedniieds 42

V. Remand to EPA would not be appropriate

because EPA complied with the Clean Water

Act and the issues before the Court concern

the interpretation of statutory provisions ......... 47

EIT crsnictnsiantenpdsskineceninmnionmampeenetcntodsitiepscsseneconcs 50

TABLE OF AUTHORITIES

Page

CASES:

American Forest and Paper Ass’n v. EPA, 137 F.3d

Et Ls nnn 26, 27, 33

Arizona Cattle Growers’ Ass’n v. U.S. Fish and

Wildlife, 273 F.3d 1229 (9th Cir. 2001) 0.0... ee eeeeee 9

Arkansas v. Oklahoma, 503 U.S. 91 (1992)..........cccceceeeeee 28

Babbitt v. Sweet Home Ch. of Communities for a

Great Ore., 515 U.S. 687 (1995) ..............cseeeeceeeeerenes 31, 34

Baltimore Gas & Electric Co. v. Natural Res. Def.

Counedl, Ene. GER UD. BF (RBBB occcccvesesovecseteusesonnnnnmunn 42

Bennett v. Spear, 520 U.S. 154 (1997) .....cececcceeeeeteeeeee 2,10

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

Fe, GBT UBD. SEF (RGB ED wccrvasccssscssscsccnsdnsannsannmumnaal 27, 31

Citizens for a Better Env’t v. EPA, 596 F.2d 720 (7th

Cae. BTID acccncecessccccsesesssecssniseinnesesenssenseneninninnnnanannnnnn 27

Defenders of Wildlife v. Flowers, 414 F.3d 1066 (9th

CIR, BGI) cccccccccccescsnsnnssstesoseseossonscneseneseisennennna 9,19

Department of Transp. v. Public Citizen, 541 U.S.

FORD CRO ED 0c 0cecscccsscosensoscccsessiissmnssceneonenienaaiinananal passim

EPA v. California ex rel. State Water Res. Control

BE. , BB UB. BBO (EBPED nccocscescensessccnetsscnimmmnaa 4,6, 26

Flint Ridge Dev. Co. v. Scenic Rivers Ass'n of Okla.,

GBB UB. TIS (2GGD) 00 :cesscsccsccesosesesesssssstninenssenieane 29

Florida Power & Light Co. v. Lorion, 470 U.S. 729

( BBD) ..00crccccccesencessvesncesesesosooucesconsisonsneneninenennleeainaanannn 49

Gonzalez v. Thomas, __ U.S. __, 126 S.Ct. 1613

(BOGE) . .erccscovccovorssonescesesennesosssinncnssnenceaninnieansnnnnialannnnna 49

TABLE OF AUTHORITIES ~ Continued

Page

In re Operation of the Missouri River System

Litigation, 421 F.3d 618 (8th Cir. 2005)................ccc00 o3

INS v. Ventura, 537 U.S. 12 (2002)............ccccceeeeecceceeeeeeees 49

Metropolitan Edison Co. v. People Against Nuclear

Energy, 460 U.S. 766 (1983).............c.ccccceeceeseees 42,43, 44

Morton v. Mancari, 417 U.S. 535 (1974)....0.....cccccccceee 28, 29

National Ass’n of Home Builders v. Norton, 340

I rs carr tninatcccnasensnncs 19

National Cable & Telecomm. Ass’n v. Brand X

Internet Services, 545 U.S. 967 (2005) ................. 31, 34, 50

Natural Res. Def. Council, Inc. v. EPA, 859 F.2d 156

ce, nee 27, 45

Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104

EE ER eae 4, 45

Olympic Airways v. Husain, 540 U.S. 644 (2004) ............ 44

Platte River Whooping Crane Critical Habitat

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

iat haiti eetercetadaetiiidinatitoentanonts oe 33

Posadas v. Nat'l City Bank, 296 U.S. 497 (1936) ............. 29

PUD No. 1 of Jefferson Cty. v. Washington Dept. of

I EE CE, WERE @ TTD inncnccdnceceseoseconsosssesssevesosecooes 6

Radzanower v. Touche Ross & Co., 426 U.S. 148

SESE ENTS RSD eer ea aa DT 28

Riverside Irr. Dist. v. Andrews, 758 F.2d 508 (10th

SEES ELE AEN AES OO 33, 46

S.D. Warren Co. v. Bd. of Envtl. Prot.,. US. _,

ER I, aan 6

TABLE OF AUTHORITIES -— Continued

Page

Save the Bay, Inc. v. Admin. of EPA, 556 F.2d 1282

SEED TUN cciiccnseiesnicisitniiialiiniiniaishldalinipdnusiidisininaiimanbieaiaiaudie 7,27

Smiley v. Citibank (South Dakota), N.A., 517 U.S.

Ware Uni Nirrisiniinsecentiinadseitunapininncensidmnnacipatansiineedpinnst 33, 50

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Engineers, 531 U.S. 159 (2001)........0......... 3, 45

South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of

DP I nee 4

Texas Indep. Prod. and Royalty Owners Ass’n v.

EPA, 410 F.3d 964 (7th Cir. 2005)............cccccccccsscceeesseeees 5

TVA v. Hill, 4387 U.S. 168 (1GTB).....c.cccccccoccccccssesesssees passim

Union Electric Co. v. EPA, 427 U.S. 246 (1976) ............... 26

United States v. Borden Co., 308 U.S. 188 (1939)............ 29

United States v. Fausto, 484 U.S. 439 (1988)................... 29

United States v. Mango, 199 F.3d 85 (2d Cir. 1999)......... 45

United States v. Mead Corp., 533 U.S. 218 (2001)........... 34

Waterkeeper Alliance, Inc. v. EPA, 399 F.3d 486 (2d

SEEE TEUTIE ccinsnscectcisciinentinniinenieniaidiimnniimiinsendsnabnibasuaictibimdedsii 45

Watt v. Alaska, 451 U.S. 259 (1981)...............ccccseeseeeeeeeeees 29

Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982)......... 38

STATUTES:

Clean Water Act

ee aes TE SEEN cccnccanneninnccnnenssnsemantimeadieieusiie 1

ine Oe Pita tindecntntentemnecnnstntenesiiiitniiinnn 3, App. 1

ee es © Pe ccencescsecesesessnnniel 3, 6, 25, 35, 45, App. 2

vill

TABLE OF AUTHORITIES — Continued

Page

ee ee IE inicecchucinibiieiintattiiintiiinmtindaiticinaaities 35, App. 3

EEE Seer aoe 3, App. 4

Ir an Sicha itiiiaiagiedlindaiidindeaaa 6

Se ea Ur ITED acccirserincsnsinsicnanietenntnnioniegentaieentinntegiiontens 6

ERT Sit IIIT vcscinbisiiciagebiitinitenaenirtnemtaaidibiibinaiheaatitiaateiaiibngaais 6

ey er cciecic nscniteinaisinciasscciisiaaiiaadaidibuaia 4, App. 4

Se Oe EE ciieicesesinssiusticticciensiananinnaanidniiiaan 4, App. 5

ee 29, App. 5-11

33 U.S.C. § 1342(b) (§ 402(b)) oe passim, App. 5

SB UBL. | TBEBIR IMD ....cccccccecceseccoscsccscscesessees 6, App. 6

a en Oe I isiicciitiaesilenicinstieniaieitinteabicanisatasi 14, App. 8

ES | ee 7, App. 8

es er I ciiccicicataiiicistsiiusisiaiiseaeanitiiblienecesibibadiialiiamiins 7

I 7, App. 9

33 U.S.C. § 1342(d)(2) .........ceesesseeeeeeees 7, 13, 18, App. 10

a ll

EERE SERIO Ri Mores aN IT TION 5

ENR ee ea ne MT Tee 45

gE NRE STE A ERE Re een: REE Poem 4

RENEE ea TO ERNE NOE 4

a a Ua CITT iccichcehicsisiiniisidiielehilebabiideithiainlilaies 3

EE ISO NIRS SO STR 4

I ai i 3

EER eee TTT 20

TABLE OF AUTHORITIES - Continued

Page

Endangered Species Act

SO OMA. GD WUD inc insesceccsicscensetssineren 1

a ey Se UE ciccisscenuibciciapntuisiniosemenbiciiasiie 39, App. 14

Una s.t AIITITTcessiscsinnnennnsinasinsiinanatanianiintahinananetinsind desi 8

Sas iii cade alice 8

Is TU iciiccictaeiiiciatihiiiaahiaipiiaiapaigaiantaaten 8

es te dics cial 8

a ek esi cceitestesoeibieinnciicnsctlaneeneiieeaiehi 8

eis it MITT sriichscsncsincehaitieiuiaiaiiattehiainiapiaeaitah 8

PG Mn NIT 8

es Ur I isccsiscsieiceiesisnsiieiaehaihceiebiiiaciiiipicaiaiicaiai 8

CR eee 39, App. 14

16 U.S.C. § 1536(a)(2) (§ 7(a)(2))...... ce. passim, App. 14

ee es Oe SE etiiniaitihinciiiinsiocinsssiniiiabinaiaitininnanian 10, App. 15

16 U.S.C. § L536( DM SMA) ......teceeeeeeeeeees 10, App. 16

ER ed MNT mE 10, 11

I taal! 11, 41

I A icici iat etait! 9,11, 41

National Environmental! Policy Act

Is iia als 29

anaes MN RIE saiisleatibccinisieiediolaibbanialieieen citadel sultan 42

Miscellaneous

A ERS RAREST RT ee 49

I i a 1

I 26

TABLE OF AUTHORITIES - Continued

Page

SESSION LAWS AND COMMITTEE REPORTS:

Endangered Species Preservation Act of 1966, Pub.

L. No. 89-669, 80 Stat. 926 ............ssccccoscssssssssssesenreeneees 36

I eee 36

a Bas Ss THEE ctemneticienscnininsnicnnencineniianenaiasitiiiis 36

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

es CU sicisiicecseincindeeieeibainceabsiicidabiehiniti 31, 36, 39, 41

Section 2(c), 87 Stat. 885...............ccccsssccserersees 39, App. 44

BORNE FT, BF ORE. GD cccccccecccccscccscssesesssees 39, 41, App. 45

Endangered Species Act Amendments of 1978, Pub.

SS KR 8 ee 31, 41

I a lll 41

Endangered Species Act Amendments of 1979, Pub.

Hes Bn RPE CPCI Bi csccecinsntnecensscscenssecctsennsensssen 31

Endangered Species Act Amendments of 1982, Pub.

Be es Ss EN I: SUI iiccisicenisccsiciesinsciebaioninitiaiainnanatciinnine 31

H.R. Conf. Rep. No. 92-1465 (1972) 0.0... .ceceeeseeeeeeeeeeee 25

ee Gets SE CUI bcciisctidiicinnissiisencincnininvedesienmneisiins 40

es Sa SEE PIE dicieiissnicnsiiosantnnnntninpnininntedeidenseienints 31

H.R. Conf. Rep. No. 95-1804 (1978) ......cccccscccseeseeceeceees 31, 40

H.R. Conf. Rep. No. 96-697 (1979) ...........ceeceeseetsetseeseeeeeees 41

TABLE OF AUTHORITIES — Continued

Page

REGULATIONS:

40 C.F.R.

STITT TI Adeusisibtittesnbeeidiaientaiasinanntntieriadinnaniaiaasin ie iamitmaiiiiaiiniai 6

SUITS ITTIITITIET is cinsiliptininiinennihiintentintdpnenimeaennienniainiepiimdeds 5

I aid aacincanclaientteeieh itt taatenmeananid attain 4

ae a en ee 5

BN MII ccceiniinsasiinsinscntnasiiacaranennainintbiienimmmensiiaiiets 6, App. 20

Se SN AIIE ecncnnssicninpnaniininationaminccnvnsinienineaniins 6

Se eeTInnL EUUTITTUIIT iaisecncnhiecethiiesdirltiehaenibentidipaaaarsdeiniiaiinanatsieeniniual 7

nT TETTIUTIED sichicitctiitsnrssctsdesstesinetniieaiaiasiaadeibanbuniinieanedinnetinaiiasinite, 7

Section 1B3B.G1(B) .....cevrerescessescccccvescscecseces 6, 7, 14, App. 25

nn TITIIITITTNaitciccetcinitetenidicciedetiansiinimiabandieniabemaiamincmaitains 42

50 C.F.R.

SS Ura issictiscansicinnsinicinitisntinasiinniaiceuiiitaiciiiceanmnpsaniaenapeindiiiél 9, 31, 32

Ie eT er 8, 46, App. 26

I GI ccevnnccccsccccscccccccees 10, 18, 32, 43, 46, App. 28

IIIT sscissninctevnienseiinnionssntdnbeinitnanincil passim, App. 33

I i cicaichiseneiesnesiancadecebateniashietesiiniidigiidigtiiniaiitedl 10

8 ne ea ae eee eee 10, 48

an 9, 10, App. 33

I GIR IE Bh Pncerccecccecesicccnnscnnsenceessies 10, 48, App. 33

TE eT Sen rT a 16, App. 35

nN i I iiiteeincosicsitontsenesentcntanenscnsscesscins 10, App. 36

Section 402.14(g)(8)..c.ccccsecsseessesssesssesssecsseseseee 32, App. 38

Se i ictsesccnininccssncusincsienntinnictinninnes 10, App. 38

xii

TABLE OF AUTHORITIES -— Continued

Page

Section 402.14 (H)(3) 0... ceecscecesseeeeesseeeeeeseens 10, App. 38

Section 402.16 ...........ccccssscssessessecseessessseeceesseees 32, App. 42

Se ai icnteternseninsenensedensceresapeesendensersesnenseenceternasenetnnotensetes 8

BE GIT hicnntsteienccncneessniapeepevennstnensseceseneensnseneerectenees 8

SEITE TITIES sibininsennepescncntncesinsverennnssesevessconopennesesneseeseenentee 8

BE SNE wsxicinssnmnnenceenecensesetomnessscomaceteseesseensesteeusunieues 8

AGENCY RULEMAKING AND OTHER NOTICES:

Approval of Application by Florida to Administer

the NPDES Program, 60 Fed.Reg. 25,718 (May

Sse TET Niietbdeinstdirindaciibcibceiiaipitnptnniseitingesasineninenescenennsesoqnenses 12

Approval of Application by Louisiana to Administer

the NPDES Program, 61 soninind 47,932 (Sept.

Ss SI TIIIET SaehntitesicippnaicienetisinineadinaslRiedbipbeisenniienantninesebeinereseceses 12

Approval of Application by Oklahoma to Administer

the NPDES Program, 61 Fed.Reg. 65,047 (Dec.

Sa SII ienceresieteanseriesicinnenianedanadiidnndueiiendbeiabbineseeenesnsecenersseseoes 12

Approval of Application by Maine to Administer the

NPDES Program, 66 Fed.Reg. 12,791 (Feb. 28,

TT daiithctibissansliiahiedatremscnnnegnsaneinidebiantniatadiiagsienvimetenes 12, 48

Approval of Application by South Dakota to

Administer the NPDES Program, 59 Fed.Reg.

Sa I iinet teeters itiglctaates 12

Approval of Application by Texas to Administer the

NPDES Program, 63 Fed.Reg. 51,164 (Sept. 24,

Sunt bcahiisctiliddiitiansainndiciieindeeadseetionmnedniacnesmenenens 11, 12, 13, 48

Xili

TABLE OF AUTHORITIES — Continued

Final Rule to Remove the Arizona Distinct

Population Segment of the Cactus Ferruginous

Pygmy-owl From the Federal List of Endangered

and Threatened Wildlife, 71 Fed.Reg. 19,452

| RR ERS ALE RSE

Interagency Cooperation Regulations; Final Rule,

51 Fed.Reg. 19,926 (June 3, 1986)........cccessseesereres

Interagency Cooperation Regulations; Final Rule,

43 Fed.Reg. 870 (Jan. 4, 1978)...cc.cccssecsesssesseeseeescenes

Memorandum of Agreement Between EPA, FWS

and NMFS Regarding Enhanced Coordination

Under the CWA and ESA; Notice, 66 Fed.Reg.

SF PSE ily HOD sciccnssrcnnscininistscsmseiiinanijiananiness

Notice of Status Review, 70 Fed.Reg. 5,460 (Feb. 2,

IP cexcecscosenssnnvnsseusenssneinnsvensenesnesennnssananseonsenssousqusvees

TREATISE:

Norman J. Singer, 1A Sutherland Statutory

Construction § 22:13 (6th ed. 2007) ..........cccccccec seen ees

ARTICLE:

Terry Rabot, The Federal Role in Habitat

Protection, Endangered Species Bulletin 10

(Nov/Dec. 1999), available at http://www.fws.gov/

endangered/esb/99/11-12/10-11 pdf... eeeeeeeees

Page

a — ee eee lh 4

OPINIONS BELOW

The opinion of the court of appeals and the dissent

(Pet. App. 1-68) are reported at 420 F.3d 946. The order

denying the petitions for panel rehearing and rehearing en

banc, the dissents from the denial of rehearing, and the

concurrence (Pet. App. 134-58) are reported at 450 F.3d

394.

JURISDICTION

The court of appeals entered judgment on August 22,

2005, and denied rehearing and en banc rehearing on June

8, 2006. Home Builders timely filed their petition for a

writ of certiorari on September 6, 2006. The USS.

Environmental Protection Agency (EPA) was granted

extensions of the filing deadline, and timely filed its

petition for a writ of certiorari on October 23, 2006. The

Court granted and consolidated the petitions on January

5, 2007. The Court has jurisdiction pursuant to 28 U.S.C.

§ 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Relevant provisions of the Clean Water Act,

33 U.S.C. §§ 1251-1387, the Endangered Species Act,

16 U.S.C. §§ 1531-1544, and those statutes’ implementing

regulations are set out in an appendix to this brief.

STATEMENT

This case concerns the relationship between two major

environmental laws, the Clean Water Act (CWA) and the

Endangered Species Act (ESA), and the authority of the

agencies that administer those laws, EPA and the U.S.

Fish and Wildlife Service (FWS). On December 5, 2002,

EPA approved the State of Arizona’s application to

administer the National Pollutant Discharge Elimination

System (NPDES) program under Section 402(b) of the

CWA, 33 U.S.C. § 1342(b). Section 402(b) states that EPA

“shall approve each submitted [State] program” unless it

“determines that adequate authority does not exist” for the

State to administer the program in compliance with nine

specified criteria. There was and is no dispute that

Arizona’s program satisfied those criteria and EPA’s

implementing regulations.

Respondents (Defenders) instead contended that EPA

violated Section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2),

because EPA did not sufficiently analyze the effects of the

loss of, nor require a sufficient substitute for, consultation

with FWS when discharge permits are issued. Section

7(aX(2) requires each Federal agency to “insure that any

action authorized, funded or carried out by such agency

. is not likely to jeopardize the continued existence of

_ any endangered species or threatened species or result in

the destruction or adverse modification of [critical]

habitat” designated for such species. See, e.g., Bennett v.

Spear, 520 U.S. 154, 158 (1997) (describing the

consultation process).

A majority of the court of appeals’ panel agreed with

Defenders and vacated EPA’s approval of Arizona’s

program. The court acknowledged that EPA lacked

authority under the CWA to act for the benefit of listed

species in approving State NPDES program submissions.

Pet. App. 53. The court instead redefined and expanded

the obligations of Federal agencies under the ESA,

holding: (1) Section 7(a)(2) grants independent authority

to Federal agencies to act for the benefit of listed species;

(2) such authority overrides any conflicting mandates

imposed by Congress in other statutes; and (3) any

“authorizing action” by Federal agencies creates an

obligation to exercise this new-found authority. Jd. at 30-44.

Circuit Judge Kozinski, who dissented with five other

judges from the denial of rehearing, explained: “the

majority treats the ESA as superior to all other laws,

thereby nullifying a crucial ESA regulation and forcing

agencies to violate their governing statutes.” Jd. at 137.

1. The Clean Water Act and the NPDES Program

Congress enacted the CWA to “restore and maintain

the chemical, physical and biological integrity of the

Nation’s waters.” 33 U.S.C. §125l(a). Congress also

stated:

It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities

and rights of States to prevent, reduce, and

eliminate pollution, [and] to plan the development

and use ... of land and water resources... . Jt is

the policy of Congress that States ... implement

the permit programs under sections 402 and 404

of this Act.

33 U.S.C. § 1251(b) (emphasis supplied); see also Solid

Waste Agency of N. Cook Cty. v. U.S. Army Corps of

Engineers, 531 U.S. 159, 174 (2001) (SWANCC) (the

extension of jurisdiction under the CWA to isolated,

intrastate waters “would result in a_ significant

impingement of the States’ traditional and primary power

over land and water use”).

Section 301 of the CWA provides that “the discharge of

any pollutant by any person shall be unlawful” except as

authorized by one of several regulatory programs

established by the Act. 33 U.S.C. § 1311(a).' One of the

' A “discharge of a pollutant” is defined as “any addition of any

pollutant to navigable waters from any point source.” 33 U.S.C.

§ 1362/12XA); see also id. at § 1362/16). The term “pollutant” is broadly

defined to include, inter alia, solid waste, industrial, municipal and

(Continued on following page)

primary regulatory programs established by the CWA is

the NPDES program, under which either EPA or an

authorized State issues permits authorizing “the discharge

of any pollutant, or combination of pollutants” from point

sources. Id. at § 1342(a)(1). “Generally speaking, the

NPDES [program] requires dischargers to obtain permits

that place limits on the type and quantity of pollutants

that can be released into the Nation’s waters.” South Fla.

Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S.

95, 102 (2004) (summarizing the NPDES program); see

also EPA v. California ex rel. State Water Res. Control Bd..,

426 U.S. 200, 202-08 (1976) (describing the Federal Water

Pollution Control Act Amendments of 1972 and the

requirements imposed under the NPDES program);

Natural Res. Def. Council, Inc. v. EPA, 822 F.2d 104, 109-

11 (D.C. Cir. 1987) (NRDC I) (describing CWA water

quality standards). Regardless of whether the issuing

authority is EPA or a State, an NPDES permit must

contain the same terms, conditions and requirements. 33

U.S.C. § 1342(a)(3).

The NPDES program allows individual permits issued

on a site-specific basis to permit discharges from sources

such as industrial plants and wastewater treatment

facilities. In cases in which a large number of point source

discharges are expected to be similar in nature, EPA may

authorize such discharges under general permits, which

cover an entire category or group of discharges and

are developed by EPA through notice-and-comment

proceedings similar to rulemaking. See 40 C.F.R. § 122.28.

General permits are used extensively in permitting storm

water discharges produced by various municipal and

agricultural waste; sewage sludge; biological and radioactive materials;

and sand and cellar dirt. Jd. at § 1362(6). A “point source” is “any

discernible, confined and discrete conveyance.” /d. at § 1362(14)

Finally, the CWA defines “navigable waters” as “the waters of the

United States, including the territorial seas.” /d. at § 1362(7).

industrial activities, including construction projects larger

than one acre. 33 U.S.C. § 1342(p); 40 C.F.R. § 122.26; see

also Texas Indep. Prod. and Royalty Owners Ass’n v. EPA,

410 F.3d 964, 967-68 (7th Cir. 2005) (describing EPA’s

general permit system for storm water discharges).

Facilities seeking coverage under a general permit must

submit a notice of intent describing the nature of

the facility, where it is located, and why the facility

qualifies for coverage under the general permit, and

must comply with the terms and conditions of the permit.

40 C.F.R. § 122.28(b)(2); see also Texas Indep. Prod., 410

F.3d at 968-69 (discussing EPA’s current general permit

for discharges from construction sites).”

2. The States’ Authority to Administer the NPDES

Program

Under the CWA, each State has the right to

administer the NPDES program if the State’s program

satisfies the criteria in Section 402(b). Section 402(b) of

the CWA provides:

[T]he governor of each State desiring to

administer its own permit program for

discharges into the navigable waters within its

jurisdiction may submit to the Administrator [of

EPA] a full and complete description of the

program it proposes to establish and administer

under State law .... The Administrator shall

approve each such submitted program unless he

determines that adequate authority does not exist

* A large portion of the permits issued in Arizona relate to storm

water discharges from construction sites. Pet. App. 49 n.22. The

“pollutant” is typically loose soil washed from an_ unstabilized

construction site during a period of heavy rain, and the “navigable

water” is a desert wash.

[to administer the program in compliance with

nine specific criteria].

33 U.S.C. § 1342(b) (emphasis supplied); see also 40 C.F.R.

§§ 123.1(c), 123.61(b); EPA v. California, 426 U.S. at 208.

Indeed, Congress’ policy statement in 33 U.S.C. § 1251(b)

specifically provides that the States are to implement the

NPDES program.’

The nine criteria in Section 402(b) relate specifically

to administering the NPDES program. For example, the

State’s program must contain adequate authority for the

State to issue permits that meet minimum regulatory

requirements under the CWA; ensure that the public,

affected States and EPA receive notice of permit

applications; provide an opportunity for public comment

and a hearing on permit decisions; and provide adequate

enforcement authority, including authority to impose fines

and penalties for violations. 33 U.S.C. § 1342(b)(1)-(9); see

also 40 C.F.R. §§ 123.21-123.30 (describing the required

elements of a State’s program submission). In addition, the

State program must meet guidelines adopted by EPA

under Section 304(i), 33 U.S.C. §$1314(i), which

“establish|] the minimum procedural and other elements

of-any State program” under Section 402, including

monitoring, reporting, enforcement, funding and

manpower requirements.’

* The States have additional authorities and responsibilities under

the CWA, such as the development of water quality standards and

certifying that discharges resulting from federal licenses and permits

will not violate water quality standards. 33 U.S.C. §§ 1313ic), 1341, see

also S.D. Warren Co. v. Bd. of Envitl. Prot., —§ U.S. ___, 126 S.Ct. 1843,

1846-47 (2006); PUD No. 1 of Jefferson Cty. v. Washington Dept. of

Ecology, 511 U.S. 700, 704-08 (1994)

* EPA has promulgated regulations containing these guidelines (‘as

well as implementing Section 402(b)), which are codified at 40 C_F_R. pt

123.

Under CWA Section 402(c), EPA must act on a State’s

application within 90 days of submission and suspend

the issuance of Federal permits unless EPA determines

that the State permit program does not meet the

requirements of Section 402(b) or does not conform to the

Section 304(i) guidelines. 33 U.S.C. § 1342(c)(1). EPA’s

regulation governing the approval process similarly

provides that within 90 days of receiving a complete

program submission, EPA must approve or disapprove the

State’s program. 40 C.F.R. § 123.61(b).

As the foregoing discussion suggests, EPA does

not actually “transfer” or “delegate” authority to the

States. Instead, the States administer their own NPDES

programs, established under each State’s laws, subject to

EPA’s oversight authority. Following approval, the State

must comply with Section 402(b) and EPA’s Section 304(i)

guidelines. 33 U.S.C. § 1342(b). If a State fails to comply,

EPA, after public hearing, may order the State to take

corrective action or withdraw approval of its program. Jd.

at § 1342(c\3). The State also must transmit copies of

each permit application to EPA and provide notice to EPA

of every action taken concerning an application, including

each NPDES permit the State proposes to issue. Jd. at

§ 1342(d)(1); 40 C.FLR. §§ 123.43, 123.44. EPA may veto a

proposed State permit “as being outside the guidelines and

requirements” of the CWA by objecting in writing within

90 days of the date of permit’s transmittal. 33 U.S.C.

§ 1342(d)(2); see also Save the Bay, Inc. v. Admin. of EPA,

556 F.2d 1282, 1284-87 (5th Cir. 1977) (discussing the

legislative history of the Federal Water Pollution Control

Act Amendments of 1972 and the respective roles of EPA

and the States in administering the NPDES program).

3. The Endangered Species Act and the Section 7

Consultation Process

The ESA delegates regulatory authority to the

Secretaries of Interior and Commerce. 16 U.S.C.

§ 1532(15). The Secretaries in turn have delegated their

ESA authority so that the ESA is administered by FWS

(for the Interior Department) with respect to terrestrial

and some aquatic species, and by the National Marine

Fisheries Service (NMFS) (for the Commerce Department)

with respect to marine and certain anadromous species.

See 50 C.F.R. §§ 17.2(b), 402.01.°

Under the ESA, protected species of wildlife, fish and

plants are classified as endangered or threatened species

through a notice-and-comment rulemaking process

prescribed by Section 4 of the ESA and are placed on lists

published in the Code of Federal Regulations. 16 U.S.C.

§ 1533(a)(1) & (c); see also 16 U.S.C. § 1532(6), (16) & (20)

(definitions of “endangered species,” “species” and

“threatened species”); 50 C.F.R. pt. 424 (regulations

governing listing and critical habitat designation). A

similar rulemaking process is prescribed under Section 4

for the designation of listed species’ critical habitat. 16

U.S.C. § 1533(a3) & (c); see also 16 U.S.C. § 1532/5)

(definition of “critical habitat”); 50 C.F.R. pt. 424.°

* Home Builders wil! focus on FWS in the following discussion

because that agency was involved in the administrative and court

proceedings below. NMFS’s responsibilities under the ESA and its

implementing regulations are generally identical to those of FWS. In

discussing both agencies, Home Builders will refer to the “Services.”

* The species’ lists are found at 50 C.F R. §§ 17.11 ‘wildlife and

fish) and 17.12 (plants). The statutory process is commonly called

“listing,” and endangered and threatened species are often called “listed

species.” This terminology will be used in Home Builders’ brief.

: Section 7(a)(2) of the ESA, 16 U.S.C. § 1536(a)(2),

requires each Federal agency, “in consultation with and

with the assistance of the Secretary,” to ensure that “any

action authorized, funded or carried out” by that agency

“is not likely to jeopardize the continued existence of any

endangered species or threatened species or result in the

destruction or adverse modification of habitat” designated

as critical. The Services’ joint regulations implementing

Section 7, codified at 50 C.F.R. pt. 402, provide that

Section 7 applies “to all actions in which there is

discretionary Federal involvement or control.” 50 C.F.R.

§ 402.03. Thus, discretionary Federal actions are

prohibited if they would jeopardize the existence of a listed

species or destroy or adversely modify designated critical

habitat, unless an exemption is granted under Section

7(h), 16 U.S.C. § 1536(h).’

The process by which Federal agencies satisfy their

obligation to avoid jeopardy is referred to as Section 7

“consultation.” A Federal agency must initially determine

whether its proposed action “may affect” listed species or

critical habitat. See 50 C.F.R. § 402.14(a). If the action will

not affect any listed species or critical habitat, the agency

may proceed without consultation. See Defenders of

Wildlife v. Flowers, 414 F.3d 1066, 1069-70 (9th Cir. 2005)

(affirming “no effect” determinations made by the Army

Corps of Engineers).

If the Federal agency believes that its proposed action

is not likely to adversely affect the listed species or

designated critical habitat, the agency may request that

FWS concur with its evaluation. If FWS concurs, no

additional consultation is required, and no biological

" This prohibition applies only to species’ habitat that has been

formally designated as “critical” under Section 4 of the ESA. See

Arizona Cattle Growers’ Ass'n v. U.S. Fish and Wildlife, 273 F.3d 1229,

1244 (9th Cir. 2001).

opinion is prepared. This is known as_ informal

consultation. See 50 C.F.R. §§ 402.13, 402.14(b)(1). If the

proposed Federal action is likely to adversely affect listed

species or designated critical habitat, however, formal

consultation is required, during which a more thorough

evaluation of the proposed action is undertaken. Jd. at

§§ 402.12(k), 402.14(a).*

Following the completion of formal consultation, FWS

provides a biological opinion to the Federal agency. 16

U.S.C. § 1536(b); 50 C.F.R. § 402.14(g) & (h). A biological

opinion “alters the legal regime to which the action agency

is subject,” and exposes the agency (as well as any permit

or license applicant) to potential liability. Bennett, 520

U.S. at 169-70. If a “jeopardy” biological opinion is

proposed, FWS will recommend reasonable and prudent

alternatives to the proposed action. 16 U.S.C.

§ 1536(b)(3)(A); 50 C.F.R. § 402.14(h)(3). To be “reasonable

and prudent,” an alternative must be consistent with the

intended purpose of the action, within the Federal

agency’s legal authority and jurisdiction, and economically

and technologically feasible. 50 C.F.R. § 402.02. When a

“jeopardy” biological opinion is issued, the action agency

can either implement FWS’s reasonable and prudent

alternatives (thereby avoiding jeopardy), terminate the

proposed action altogether, or seek an exemption from the

Endangered Species Committee allowing the proposed

action to proceed.”

* Most consultations are concluded informally. During fiscal year

1999, for example, FWS informally consulted on about 12,000 actions,

while conducting 83 formal! consultations and issuing one “jeopardy”

opinion. Terry Rabot, The Federal Role in Habitat Protection,

Endangered Species Bulletin 10, 11 (Nov./Dec. 1999), available at http://

www. fws.gov/endangered/esb/99/11-12/10-11.pdf (visited Feb. 7, 2007).

* The Endangered Species Committee is chaired by the Secretary

of the Interior, and includes cabinet-level officials and a presidential

appointee representing each State affected by the application. 16 U.S.C.

(Continued on following page)

4. EPA’s Previous Practice in Approving State

NPDES Programs

Since the ESA was enacted in 1973, EPA has rarely

consulted with the Services in approving State NPDES

program submissions. Prior to Arizona’s NPDES program

submission in 2002, EPA consulted with the Services on

only six occasions, beginning with the approval of South

Dakota’s application in 1993. Pet. App. 7 n.3. In contrast,

EPA did not consult in approving programs for 39 other

states. Ibid. Moreover, a number of those States have

received multiple program approvals, resulting in more

than 100 opportunities to consult under Section 7(a)(2).

See Approval of Application by Texas to Administer the

NPDES Program, 63 Fed.Reg. 51,164, 51,200 (Sept. 24,

1998) (table listing State NPDES program status)."”

On the occasions when it consulted with the Services,

EPA did not acknowledge it was legally obligated to do so

or that Section 7(a)(2) applied to State NPDES program

approvals. For example, in its notice approving

Oklahoma’s program, EPA explained:

While it may not be clear that the section 7

consultation is specifically required for a program

authorization, ESA and its implementing

regulations do not restrict any agency from

§ 1536(e).. Following a threshold investigation and a hearing, the

committee may grant the exemption if it determines that there are no

reasonable and prudent alternatives available, the benefits of action

outweigh the benefits of alternative courses and are consistent with

conserving the species or its critical habitat; and the action is in the

public interest and is of regional or national importance. /d. at

§ 1536(g) & (h).

* As shown in the table, multiple approvals are the result of States

seeking approval to administer different portions of the NPDES

program at different times. See 33 U.S.C. § 1342(n). The total number

of State program approvals prior to 1993 is 114.

voluntarily consulting and conferring with [FWS]

on actions it believes may affect listed species.

Approval of Application by Oklahoma to Administer the

NPDES Program, 61 Fed.Reg. 65,047, 65,051 (Dec. 10,

1996). More recently, in connection with approving Texas’

NPDES program, EPA explained that “even if [it] was not

required by law to consult with the Services, EPA believes

it was within its discretion to do so.” Approval of

Application by Texas, 63 Fed.Reg. at 51,198. As the

foregoing statements suggest, EPA did not have a formal

policy on the applicability of Section 7(a)(2) to State

program approvals prior to acting on Arizona’s NPDES

program submission.

Moreover, formal consultation between EPA and the

Services, resulting in a biological opinion, occurred only

two times before this case." In both instances, the scope of

the consultation was limited to aquatic species, i.e., species

affected by surface water quality. In the case of Maine’s

NPDES program, EPA consulted on two listed species:

with NMFS on the effect of salmon fish farms and

hatcheries on listed, wild Atlantic salmon, and with FWS

on the effect of NPDES permits for six paper mills on bald

eagles. Approval of Application by Maine to Administer the

NPDES Program, 66 Fed.Reg. 12,791, 12,793-94 (Feb. 28,

2001). In the case of Texas’ NPDES program, the

" The consultations on the South Dakota, Florida, Louisiana and

Oklahoma NPDES programs were informal, i.e., the Services concurred

with EPA’s “not likely to adversely affect” determination, and no

biological opinions were prepared. See Approval of Application by South

Dakota to Administer the NPDES Program, 59 Fed.Reg. 1,535, 1,543

(Jan. 11, 1994); Approval of Application by Florida to Administer the

NPDES Program, 60 Fed.Reg. 25,718, 25,719 (May 12, 1995); Approval

of Application by Louisiana to Administer the NPDES Program, 61

Fed.Reg. 47,932, 47,934 (Sept. 11, 1996); Approval of Application by

Oklahoma, 61 Fed.Reg. at 65,053

consultation also was limited to species affected by

the enforcement of surface water quality standards.

Approval of Application by Texas, 63 Fed.Reg. at 51,201.

EPA explained that no “obligations, procedural or

otherwise,” were imposed on Texas to protect listed

species: “The State’s only obligation is to issue permits

that comply with the procedural and _ substantive

requirements of the CWA and the State program approved

by EPA.” Jd. at 51,198.

In January 201, the Services and EPA entered into a

memorandum of agreement to improve interagency

coordination under the CWA and the ESA. Memorandum

of Agreement Between EPA, FWS and NMFS Regarding

Enhanced Coordination Under the CWA and ESA; Notice,

66 Fed.Reg. 11,202 (Feb. 22, 2001) (Pet. App. 245-317)

(the National MOA). The operative portion of the National

MOA, however, does not address whether Section 7(a)(2)

applies to State NPDES program approvals. See Pet.

App. 268-317. The Federal Register preamble (not the

National MOA itself) states only that EPA’s current

practice is to consult with the Services, that such

consultations are conducted on a case-by-case basis, and

that the National MOA does not place any conditions

on approval of State NPDES programs. Id. at 260, 266.

Instead, the National MOA emphasizes that “EPA's

oversight of State/Tribal permits will continue to be

governed by EPA’s CWA authorities. For example,

EPA may only object to a permit that is ‘outside

the guidelines and requirements’ of the CWA ....” Id.

at 265 (quoting 33 U.S.C. § 1342(d)(2)); see also id. at

308-12 (coordination procedures for State and Tribal

permits).

5. The Administrative Proceedings Concerning

Arizona’s NPDES Program Submission

On December 20, 2001, the Governor of Arizona

requested NPDES program approval pursuant to Section

402(b). Id. at 546-47; see also id. at 80-82 (timeline of

events). EPA’s regional office in San Francisco (Region 9),

which is responsible for the administration of the CWA in

Arizona, received the State’s submission package on

January 14, 2002, but determined that Arizona’s

submission did not meet certain requirements. J.A. 10-26;

Pet. App. 547. On June 5, 2002, the Governor of Arizona

requested partial program approval, and a _ revised

program was submitted to EPA. Pet. App. 547. On July 11,

2002, EPA declared that Arizona’s program submission

was administratively complete. J.A. 34; Pet. App. 547. EPA

was required to approve or disapprove Arizona’s program

by October 8, 2002. J.A. 327; see also 33 U.S.C. § 1342(c)

(deadline for acting on State program submissions); 40

C.F.R. § 123.61(b) (same).

On January 23, 2002, EPA contacted FWS’s Arizona

field office and requested initiation of informal

consultation regarding approval of Arizona’s NPDES

program. J.A. 7-10. EPA indicated the permitting activities

that Arizona’s program would cover, and requested a list of

species and critical habitat that those activities would

affect. Jbid. Informal consultation between the agencies

apparently continued into June 2002. See Pet. App. 80,

597.

EPA subsequently prepared a biological evaluation of

the impacts of approving Armzona’s program, and

concluded such action would not adversely affect any listed

species or their c.itical habitat. Jd. at 583-623. EPA

submitted the final evaluation to FWS on June 21, 2002.

Id. at 581. In its biological evaluation, EPA concluded that

no adverse effects would occur and fermal consultation

was unnecessary:

The Federal action is an administrative shift of

authority and is not associated with any physical

action that will alter habitat or affect biota. The

substantive CWA protections currently afforded

to Federally-listed species and critical habitat

under the NPDES program will continue under

the [State] permit program. USEPA oversight of

the [State] program, including coordination

pursuant to the National MOA, will provide

added assurance of this continued protection. ...

Therefore, the USEPA concludes that its

proposed approval of the [State] program is not

likely to adversely affect any Federally-listed

species or their designated critical habitat.

Id. at 617-18 (emphasis supplied).

A dispute immediately developed between EPA Region

9 and FWS’s Arizona field office in Phoenix. FWS field

office employees complained that approval of Arizona’s

NPDES program would allow “unchecked” real estate

development to occur, reducing the conservation status of

the cactus ferruginous pygmy-owl, and two plant species,

the Pima pineapple cactus and Huachuca water umbel.

J.A. 46. The FWS employees disagreed with EPA's

determination that approval of Arizona’s program was

merely an administrative shift in authority, asserting

instead that private construction is an “indirect effect” of

NPDES permits and objecting to EPA’s refusal to

“federalize” State permits “where the activity causing the

discharge adversely affects an upland species” or may

cause “decreases in water quantity.” Jd. at 45-46.

On August 20, 2002, the acting supervisor of FWS’s

Arizona field office acknowledged his agency’s receipt of

EPA's biological evaluation and request to initiate formal

consultation, but requested additional information. J.A.

55-57. He also informed EPA that the 135-day period for

consulting (see 50 C.F.R. § 402.14(e)) would not begin until

EPA provided this information. Jd. at 56-57. EPA

immediately responded and pointed out that the

information had been provided in EPA’s June 21, 2002

submission. J.A. 59-63.

On September 13, 2002, a meeting took place between

representatives of EPA, FWS and the Arizona Department

of Environmental Quality (ADEQ) to address the

interagency dispute. See J.A. 120. FWS was uncertain

whether formal consultation had been initiated. Jbid. FWS

maintained that the consultation should cover impacts to

upland (terrestrial) species caused by private land uses

and impacts to water quantity resulting from groundwater

pumping. EPA, in contrast, maintained that it lacked

authority to regulate those activities:

We then discussed our concerns with aquatic and

aquatic-dependent species. We all agreed that

the process defined in the [National] MOA would

address aquatic concerns, but we ([FWS]

expressed concerns about issues of water

quantity .... EPA stated that effects from

pumping groundwater to provide water to

housing developments is out of their jurisdiction

and they have no discretion to modify or

condition permits for this type of effect.

At this point, EPA voiced their opinion on

indirect effects from their action. They believe

there are no indirect effects associated with the

delegation [sic] because it is simply an

administrative action. We disagree with their

interpretation ane told them that we have to

evaluate all the effects (direct, indirect,

interrelated and interdependent) regardless of

whether they could do anything about those

effects.

Id. at 121 (emphasis supplied).

At this point, the agencies decided to elevate their

dispute to their respective Washington headquarters for

resolution. Jd. at 123. In the October 4, 2002 interagency

elevation document, FWS’s position was summarized as

follows:

FWS is concerned that, following EPA Region 9’s

approval action, endangered species, in

particular, the cactus ferruginous pygmy-owl, the

Pima pineapple cactus, and perhaps other

species, will be adversely impacted in the future

by projects that will require State NPDES

permits issued by the State of Arizona. The

FWS’s concerns involve the indirect effects of

permit issuance from non-water-quality-related

impacts from these. projects, such as

construction, water usage, and similar activities

that affect individuals of the species either

directly or through disturbance of their habitat.

The concerns do not involve water quality issues

related to the discharges thai will be regulated

under the State NPDES permits.

... FWS maintains that EPA needs to ensure

that a consultation process, or alternative

process similar to that which exists, remains in

place following the approval of the State program

to address effects to listed species.

Pet. App. 562-63 (emphasis supplied). EPA, in contiast,

continued to stress its limited authority and the

administrative nature of approving Arizona’s NPDES

program:

EPA Region 9 believes that it does not

have legal authority to regulate’ the

non-water-quality-related impacts associated

with State NPDES-permitted projects that are

of concern to FWS....

EPA Region 9 also believes that its approval action,

which is an administrative transfer of authority, is

not the cause of future non-discharge-related

impacts on endangered species from projects

requiring State NPDES permits.

Id. at 564.

The agencies’ headquarters resolved the dispute. On

December 3, 2002, FWS issued its biological opinion,

concluding that EPA’s approval of Arizona’s NPDES

program is not likely to jeopardize listed species or

adversely modify designated critical habitat. Jd. at 77-124.

FWS acknowledged EPA’s jurisdiction under the CWA,

stating that the scope of the consultation was limited to

listed species and critical habitat “in, adjacent to, or

dependent on surface waters in Arizona.” Id. at 77;

see also id. at 108. FWS explained that the proposed

action constituted an administrative shift in authority and

would not cause increases in requests for CWA permits or

real estate development. Jd. at 113-14. FWS also accepted

EPA’s~ description of its regulatory authority under

the CWA, including EPA’s inability to object to NPDES

permits “based on grounds other than guidelines and

requirements of the CWA.” Jd. at 114; see also 33

U.S.C. § 1342(d)\(2). Finally, FWS concluded that the

environmental impacts of future real estate development

in Arizona are speculative, and cannot be considered

reasonably certain to occur. Pet. App. 114-15; see also

50 C.F-.R. § 402.02 (definition of “effects of the action”).

On December 5, 2002, EPA approved Arizona’s

program. J.A. 190-91; Pet. App. 69-76. Approval occurred

nearly two months after the deadline for acting on State

program submissions had passed. Since EPA’s approval

decision, ADEQ has been administering and enforcing the

NPDES program (known as the AZPDES program) in all

nortions of Arizona other than Native American land.

As both the interagency elevation document and

biological opinion indicate, the two principal species of

concern during the consultation were the cactus

ferruginous pygmy-owl and the Pima pineapple cactus.

See, e.g., Pet. App. 115, 562. The pygmy-owl is an upland

species, and its habitat is not dependent on surface water

quality. See National Ass’n of Home Builders v. Norton,

340 F.3d 835, 838 (9th Cir. 2003). FWS has removed the

Arizona pygmy-ow! population from the list of endangered

and threatened species because the population does

not qualify -s a “distinct population segment” and is

therefore not eligible for listing. Final Rule to Remove the

Arizona Distinct Population Segment of the Cactus

Ferruginous _Pygmy-owl From the Federal List of

Endangered and Threatened Wildlife, 71 Fed.Reg. 19,452

(April 14, 2006); see also Defenders of Wildlife v. Flowers,

414 F.3d at 1070-71 & n.1; National Ass’n of Home

Builders, 340 F.3d at 852. The Pima pineapple cactus is a

species of desert cactus found in southern Arizona and

northern Sonora, and is not associated with wetlands or

watercourses.” The listing status of this cactus is

currently being reviewed to determine whether it is a valid

taxonomic entity. See Notice of Status Review, 70 Fed.Reg.

5,460, 5,461-62 (Feb. 2, 2005)."”

‘See FWS background documents available at http://www. fws.

gov/southwest/es/anizona/pima. htm (visited Feb. 6, 2007).

'* Several other listed species are mentioned in the administrative

record, including fish and other aquatic species. For example, the

Huachuca water umbel, a wetland plant species, was discussed in the

FWS field employees internal briefing statement. See J.A. 49. However,

FWC’s concerns related to water use in the Sierra Vista area rather

than discharges of pollutants impaimng the species’ habitat. /did.,

see also J.A. 121. The record makes clear that EPA and FWS agreed

that approval of Arizona’s program would have no adverse, water

quality-related impacts on those species. See, e.g, Pet. App. 562-63.

6. The Court Proceedings Below

On April 2, 2003, Defenders filed a petition with the

court of appeals seeking review of EPA’s approval of

Arizona’s program. See 33 U.S.C. § 1369(b)(1)(D)

(providing for review in the circuit courts of EPA’s

determinations regarding State permitting programs); J.A.

257-69. Defenders never contended that Arizona’s

application or the AZPDES program failed to meet the

nine criteria set forth in CWA Section 402(b). Instead,

Defenders alleged that EPA violated Section 7(a)(2) of the

ESA in approving Arizona’s program. J.A. 258-61; Pet.

App. 13. Home Builders, which consist of industry and

trade associations representing the interests of Arizona

businesses required to obtain NPDES permits, were

granted permission to intervene as respondents. Pet. App.

13; see also J.A. 270-311.

Defenders also filed an amended complaint in a

pending action in district court challenging FWS’s

biological opinion under the Administrative Procedure Act.

Pet. App. 13. The district court determined that it lacked

jurisdiction to decide Defenders’ challenge to the FWS’s

biological opinion, and ordered that the claim be severed

and transferred to the Ninth Circuit. Jbid; see also J.A.

312-20. The court of appeals consolidated the cases and

issued its opinion on August 22, 2005.

A majority of the court of appeals’ panel held that

FWS’s biological opinion was “fatally deficient” and that

EPA “failled) to understand its own authority under

section 7(a)(2) to act on behalf of listed species and their

habitat.” Pet. App. 47-48, 60. The court acknowledged that

CWA Section 402(b) foreclosed EPA's discretion to act for

the benefit of listed species. Jd. at 53. The court held

instead that ESA Section 7(a\2) grants independent

authority to federal agencies to act for the benefit of listed

species, that such authority overrides any constraints

imposed by Congress in the CWA, and that any

“authorizing action” creates an obligation to exercise this

authority. Jd. at 38-39, 53.

To support this holding, the court focused on the

phrase “insure that any action ... is not likely to

jeopardize” in Section 7(a)(2), concluding Congress

intended this phrase to grant Federal agencies authority

to act affirmatively to benefit listed species, rather than

prohibiting actions that jeopardize species. /d.

at 30-38. The majority also determined that whenever

a Federal agency authorizes, funds or carries out an

action, Section 7(a)(2) applies: “the EPA had exclusive

decisionmaking authority over Arizona's _ pollution

permitting transfer application. The EPA’s decision

authorized the transfer, thus triggering section 7(a)(2)’s

consultation and action requirements.” /d. at 43-44

(emphasis supplied).

The court concluded that EPA needed to address

“whatever harm may flow from the loss of section

7 consultation” (id. at 47), notwithstanding EPA’s

non-discretionary obligation to approve Arizona’s

NPDES program under CWA Section 402(b). In the court’s

view, EPA could not approve Arizona’s program, even

if that program satisfied CWA Section 402(b), unless

EPA found “sufficient substitutes for section 7's

consultation and mitigation mandates.” /d. at 52. As the

remedy, the court vacated EPA’s approval of Arizona’s

program, relying primarily on future adverse impacts on

the cactus ferruginous pygmy-owl. /d. at 61-63.

Senior Circuit Judge Thompson dissented, stating

that “EPA did not have discretion to deny transfer 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 |ESA).” /d. at 66. Judge

Thompson explained that prior Ninth Circuit opinions

recognized, in accordance with 50 C.F.R. § 402.03, that

Section 7(a)(2) applies only to actions in which an agency

has discretion to act for the benefit of listed species. Jd.

at 64-66 (citing numerous opinions). The dissent also

pointed out that the majority’s interpretation was in direct

conflict with other circuits’ interpretation of CWA 402(b),

which have held that EPA’s obligation in reviewing

a State’s program submittal under CWA Section 402(b)

is limited to evaluating the statute’s nine criteria. /d.

at 66-67.

Home Builders, EPA and FWS, and the State of

Arizona filed petitions seeking rehearing en banc based on

the intra-circuit and inter-circuit conflicts created by the

majority's opinion. On June 8, 2006, the court of appeals

issued its order denying both panel and en banc rehearing.

Id. at 134-58. Six circuit judges dissented from the denial

of rehearing on multiple grounds. /d. at 135-49. Circuit

Judge Kozinski stated, for example, “the majority

tramples all over the [FWS’s] reasonable interpretation of

the ESA, deliberately creates a square inter-circuit conflict

with the Fifth and D.C. Circuits, and ignores at least six

prior opinions of our own court.” Jd. at 135-36.

SUMMARY OF ARGUMENT

No dispute exists that: (1) Arizona’s NPDES program

submission satisfied the nine requirements specified by

Congress in Section 402(b) of the CWA as well as EPA's

implementing regulations; and (2) the plain language of

Section 402(b) forecloses EPA’s discretion to act for the

benefit of listed species in approving a State’s program.

Nonetheless, the court of appeals held that the ESA

overrides the Congressicnal mandates set forth in the

CWA. That holding is erroneous for several reasons:

(1) The court of appeals ignored the plain language

of CWA Section 402(b), which states that EPA “shall

approve” a State’s NPDES program “unless” one or more of

nine specified criteria are not met. Congress’ “shall/unless”

phrasing was deliberate and precludes the consideration of

other criteria, including impacts to listed species. The

court treated ESA Section 7(a)(2) — a statute of general

applicability — as implicitly repealing Congress’ mandatory

direction in the CWA, upsetting the Federal-State balance

struck by the CWA. |

(2) The court of appeals improperly disregarded

the Services’ regulation, 50 C.F.R. § 402.03, limiting

the applicability of Section 7(a)(2) to actions in which

there is discretionary Federal involvement or control.

The Services’ regulation was adopted in 1986 following

notice-and-comment rulemaking, and has been in effect for

over 20 years. Section 7(a)(2) is ambiguous, as shown by

the conflict between the Ninth Circuit and other circuits,

and the Services’ interpretation is reasonable, as shown by

those circuits’ decisions interpreting Section 7(a)(2)’s

application. Nevertheless, the court gave no deference to

50 C.F.R. § 402.03, and improperly substituted its view of

how Section 7(a)(2) should apply.

(3) Rather than following the plain language of CWA

402(b) or deferring to the Services’ long-standing

interpretation of Section 7(a\(2), the court of appeals

erroneously interpreted Section 7(a\(2) as granting

authority to Federal agencies that must be exercised

whenever an agency authorizes, funds or carries out an

activity. To support this holding, the court incorrectly

applied 7VA v. Hill, 437 U.S. 153 (1978), ignoring that

case’s factual context and the narrow questions presented

to this Court. TVA v. Hill involved a discretionary public

works project carried out by a Federal instrumentality,

and there was no dispute that completion of the project

would eradicate a listed species and destroy its designated

critical habitat. The court also incorrectly construed the

ESA's legislative history, ignoring Congress’ stated policy

in ESA Section 2(c)(1) that agencies are to “use their

authorities in furtherance of” the Act.

(4) In determining the effects of EPA’s action, the

court of appeals facially adopted but failed to follow

Department of Transp. v. Public Citizen, 541 U.S. 752

(2004), which held that a Federal agency cannot be

considered the legally relevant cause of an environmental

effect that it lacks authority to control. The court

concluded that EPA’s approval of Arizona’s NPDES

program was the “but for” cause of impacts to listed

species resulting from future private land use activities.

That conclusion was based on the court’s erroneous belief

that EPA, when issuing an NPDES permit, has-authority

to regulate how private land is used, which conflicts with

the CWA’s basic framework and EPA’s jurisdiction under

CWA Section 402, which gives EPA authority to regulate

and control discharges of pollutants - not real estate

cevelopment.

(5) The record shows that EPA consistently

maintained that its authority under the CWA is limited

and that EPA complied with that Act in approving

Arizona’s NPDES program. Because the questions before

the Court involve the interpretation of Federal statutes

and their implementing regulations, remand to the EPA

would add nothing to the record, particularly given that

EPA and the Services now have adopted a formal policy

governing approval of State NPDES programs.

ARGUMENT

I. THE PLAIN LANGUAGE OF SECTION 402(b)

OF THE CLEAN WATER ACT PRECLUDES

THE APPLICATION OF THE ENDANGERED

SPECIES ACT TO EPA’S APPROVAL OF STATE

NPDES PROGRAMS.

A. The Criteria Specified by Congress in

Section 402(b) of the Clean Water Act Are

Exclusive and EPA Must Approve State

NPDES Programs Meeting Those Criteria.

The plain language of CWA Section 402(b) requires

EPA to approve State NPDES programs if nine specific

criteria are met. None of those criteria mentions protection

of listed species or the ESA. As Judge Kleinfeld explained,

in dissenting from denial of rehearing, this case should

have been simple: “(Section 402(b)| is mandatory. Congress

commands that the agency ‘shall approve’ state programs

‘unless’ one or more of nine conditions are not met. The

‘shall/unless’ formula makes the nine condition list

exclusive, and courts cannot add conditions to the list.”

Pet. App. 149. The mandatory nature of Section 402(b) is

supported by Congress’ express policy “to recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution” and, moreover, “that the States manage” the

NPDES program. 33 U.S.C. § 1251(b).

In addition, the legislative history shows that

Congress deliberately chose the mandatory “shall/unless”

phrasing found in Section 402(b)(2). The bills originally

enacted by each house contained different language, with

the ‘Senate’s bill allowing, but not requiring, FPA

~~ to approve State programs. Compare H.R. Conf. Rep. No.

92-1465, at 138 (1972) (“jujnder section 402, the

Administrator can delegate permit authority to a State if

the State program is adequate”; describing Senate Bill

2770 (1972) (emphasis supplied)) with id. at 139 (“the

Administrator is required to approve a submitted State

program unless he finds that there is not adequate

authority ... ”; describing House Bill 11896 (1972)

(emphasis supplied)). The Conference Committee

substituted the House of Representatives’ amendment,

resulting in Section 402(b)’s mandatory direction. Id. at

139; see also EPA v. California, 426 U.S. at 208.

This Court interpreted similar statutory language in

Union Electric Co. v. EPA, 427 U.S. 246 (1976), holding

that “shall” means “shall.” There, the Court considered

EPA's obligation to approve state implementation plans

under Section 110(a)(2) of the Clean Air Act, 42 U.S.C.

§ 7410(a)(2):

The provision sets out eight statutory criteria

that [a State’s}) implementation plan must

satisfy, and provides that if these criteria are met

and if the plan was adopted after reasonable

notice and hearing, the Administrator “shall

approve” the proposed state plan. The mandatory

“shall” makes it quite clear that’ the

Administrator is not to be concerned with factors

other than those specified, ... and none of the

eight factors appears to permit consideration of

technological or economic infeasibility.

Union Electric, 427 U.S. at 257 (citation omitted; emphasis

supplied).

In American Forest and Paper Ass’n v. EPA, 137 F.3d

291, 297-99 (Sth Cir. 1998) (AFPA), the Fifth Circuit

squarely addressed the mandatory nature of CWA Section

402(b) in connection with a challenge to EPA's approval of

Louisiana’s NPDES permitting program. As a condition of

approval, EPA required Louisiana to submit proposed

permits to the Services, which EPA would veto if either

FWS or NMFS determined that the permit would

adversely impact listed species. AFPA, 137 F.3d at

293-94. The Fifth Circuit held EPA lacked authority under

the CWA to impose conditions to benefit listed species,

explaining:

[Section 402(b)’s] plain language directs EPA to

approve proposed state programs that meet the

enumerated criteria; particularly in light of the

command “shall approve,” § 304(i) cannot be

construed to allow EPA to expand the list of

permitting requirements. Applying Chevron, we

conclude that Congress has spoken directly to the

precise question at issue: EPA’s discretion lies

not in modifying the list of enumerated criteria,

but simply in ensuring that those criteria are

met.

Id. at 298 (following Chevron U.S.A., Inc. v. Natural Res.

Def. Council, Inc., 467 U.S. 837, 842-43 (1984)) (emphasis

in original); see also Natural Res. Def. Council, Inc. v. EPA,

859 F.2d 156, 173-74 (D.C. Cir. 1988) (NRDC II) (Section

402(b) “commands” EPA to “approve the state permit

system” once the statutory requirements are met); Citizens

for a Better Env’t v. EPA, 596 F.2d 720, 722 (7th Cir. 1979)

(“If the state program satisfies the statutory requirements

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

Save the Bay, 556 F.2d at 1285 (“Unless the Administrator

of EPA determines that the proposed state program does

not meet these requirements, he must approve the

proposal.”).

In this case, the court of appeals recognized that “the

Clean Water Act does not grant the EPA authority to make

pollution permitting transfer decisions for the benefit of all

endangered species.” Pet. App. 53. As a matter of statutory

construction, that conclusion should have been controlling.

Chevron, 467 U.S. at 842-43 (“If the intent of Congress is

clear, that is the end of the matter; for the court, as well as

the agency, must give effect to the unambiguously

expressed intent of Congress.”).

B. The Court of Appeals’ Holding Violates the

Canons of Statutory Construction and

Results in the Implied Repeal of Section

402(b) of the Clean Water Act.

Instead of following the plain language of CWA

Section 402(b), the court of appeals concluded that EPA

must address “whatever harm may flow from the loss of

section 7 consultation” (Pet. App. 47), and cannot approve

Arizona’s program without “sufficient substitutes for

section 7’s consultation and mitigation mandates” (id. at

52). The court therefore added a tenth criterion to CWA

Section 402(b), effectively holding that States must adopt

and enforce their own version of the ESA to obtain

authority to administer the NPDES program. In so

hoiding, the court violated two cardinal rules of statutory

construction: (1) specific statutes are not controlled by

general statutes; and (2) repeals by implication are

strongly disfavored.

“It 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.” Radzanower v. Touche Ross

& Co., 426 U.S. 148, 153 (1976); see also Morton v.

Mancari, 417 U.S. 535, 550-51 (1974) (“Where there is no

clear intention otherwise, a specific statute will not be

controlled or nullified by a general one, regardless of the

priority of enactment.”).

In the CWA, “Congress struck a careful balance

among competing policies and interests,” and “protected

certain sovereign interests of the States.” Arkansas v.

Oklahoma, 503 U.S. 91, 106-07 (1992). Congress did so, in

part, through Section 402, which not only created the

NPDES program, but requires EPA to approve State

NPDES programs satisfying detailed criteria, imposes a

strict deadline for State program approval, and establishes

specific post-approval oversight requirements. 33 U.S.C.

§ 1342(b)-(f). By contrast, the ESA addresses the general

objective of protecting listed species and habitat critical to

their survival. There is ne evidence that Congress

intended to upset the Federal-State balance struck in the

CWA or modify the detailed program criteria, the deadline

for EPA decisions and other specific requirements imposed

under CWA Section 402 when it enacted the ESA. See

Flint Ridge Dev. Co. v. Scenic Rivers Ass’n of Okla., 426

U.S. 776, 788-91 (1976) (reversing the court of appeals’

determination that the National Environmental Policy Act

(NEPA), 42 U.S.C. §§ 4321-4370f, applies to approval of

registration statements under the Interstate Land Sales

Disclosure Act).

Moreover, “repeals by implication are not favored.”

Morton, 417 U.S. at 549-550 (quoting Posadas v. Nat'l City

Bank, 296 U.S. 497, 503 (1936)); see also Norman J.

Singer, 1A Sutherland Statutory Construction § 22:13 (6th

ed. 2007) (principles of implied repeal apply to implied

amendment). “The intention of the legislature to repeal

must be ‘clear and manifest.’” Watt v. Alaska, 451 U.S.

259, 267 (1981) (quoting United States v. Borden Co., 308

U.S. 188, 198 (1939)). “In the absence of some affirmative

showing of an intention to repeal, the only permissible

justification for a repeal by implication is when the earlier

and later statutes are irreconcilable.” Morton, 417 U.S.

at 550; see also United States v. Fausto, 484 U.S. 439,

452-53 (1988). “The courts are not at liberty to pick and

choose among congressional enactments, and when two

statutes are capable of co-existence, it is the duty of the

courts, absent a clearly expressed congressional intention

to the contrary, to regard each as effective.” Morton, 417

U.S. at 551.

There is no affirmative showing of Congressional

intent to override the plain and specific language of CWA

Section 402(b). Thus, the only possible basis for an implied

repeal is that the statutes are irreconcilable. Any

conceivable conflict, however, was eliminated by the

Services’ 1986 rulemaking, discussed below, interpreting

the phrase “actions authorized, funded, or carried out” by

Federal agencies as being limited “to all actions in which

there is discretionary federal involvement or control.” 50

C.F.R. § 402.03. Therefore, the plain language of CWA

Section 402(b) is controlling.

II. THE COURT OF APPEALS FAILED TO DEFER

TO THE SERVICES’ LONG-STANDING

INTERPRETATION OF SECTION 7(a)(2) OF

THE ENDANGERED SPECIES ACT.

More than 20 years ago, the Services promulgated

regulations interpreting and implementing ESA Section 7,

including 50 C.F.R. § 402.03, governing the applicability of

Section 7(a)(2) to Federal agency actions. The court of

appeals disregarded that regulation, variously describing

50 C.F.R. § 402.03 as a “gloss” on, and as being

“congruent” and “coterminous with” the statutory phrase

“authorized, funded, or carried out.” The court instead

substituted its own view of how the statute should be read.

Pet. App. 39-42. This violated settled law:

[A]mbiguities in statutes within an agency's

jurisdiction to administer are delegations of

authority to the agency to fill the statutory gap

in reasonable fashion.... If a _ statute is

ambiguous, and if the implementing agency’s

construction is reasonable, Chevron requires a

federal court to accept the agency’s construction

of the statute, even if the agency’s reading differs

from what the court believes is the best statutory

interpretation.

National Cable & Telecomm. Ass’n v. Brand X Internet

Services, 545 U.S. 967, 980 (2005) (following Chevron, 467

U.S. at 843-44 & n.11, 865-66). This Court previously

recognized that “[wjhen it enacted the ESA, Congress

delegated broad administrative and interpretative power

to the Secretary.” Babbitt v. Sweet Home Ch. of

Communities for a Great Ore., 515 U.S. 687, 708 (1995)

(upholding FWS’s regulation defining “harm”). The court

of appeals ignored Chevron and Sweet Home, and

erroneously afforded no deference to the agencies’

interpretation of Section 7(a)(2).

The Services’ current rules have their genesis in

the original version of Section 7, which consisted of a

two-sentence paragraph and contained a number of

undefined terms and no description of the consultation

process. Endangered Species Act of 1973, Pub. L. No.

93-205, $7, 87 Stat. 884, 892. The following year, the

Services began providing guidance to other Federal

agencies and, in early 1976, issued guidelines governing

Section 7. See Interagency Couperation Regulations; Final

Rule, 43 Fed.Reg. 870 (Jan. 4, 1978). The Services’

guidelines were revised and, after notice-and-comment

rulemaking, were issued as formal regulations in 1978 and

codified in 50 C.F.R. pt. 402. Jd. at 873-76.

The ESA was subsequently amended by Congress, and

Section 7 was divided into subsections and expanded."

Nevertheless, certain key terms (including, for example,

“jeopardize” and “destruction or adverse modification”)

‘* See Endangered Species Act Amendments of 1978, Pub. L. No.

95-632, 92 Stat. 3751, Endangered Species Act Amendments of 1979,

Pub. L. No. 96-159, 93 Stat. 1225; Endangered Species Act Amendments

of 1982, Pub. L. No. 97-304, 96 Stat. 1411. The legislative history shows

that Congress was aware that the Services had promulgated

regulations implementing Section 7 and creating the consultation

process. See H.R. Rep. 95-1625, at 12 (1978) (Pet. App. 491-92), HLR.

Conf. Rep. No. 95-1804, at 18 (1978) (Pet. App. 486-87).

were left undefined, and aspects of the consultation

process remained unclear. Consequently, in 1986, the

Services promulgated new regulations governing Section 7

implementing the amendments. /nteragency Cooperation

Regulations; Final Rule, 51 Fed.Reg. 19,926 (June 3, 1986)

(codified at 50 C.F.R. pt. 402) (Pet. App. 318-480). The

Services’ regulations fill in definitional and interpretive

gaps in the statute and provide a uniform process for

Section 7 consultation.

In their 1986 rulemaking, which began in 1983 and

involved public notice and comment, the Services

expressly recognized that an agency’s obligations under

Section 7(a)(2) are limited by its existing legal authority.

See, e.g., id. at 19,937 (“a Federal agency’s responsibility

under section 7(a)(2) permeates the full range of

discretionary authority held by that agency”) (Pet. App.

365). In addition to 50 C.F.R. § 402.03, other regulations

recognize that a federal agency’s duties under Section

7(a)(2) are limited by its existing authorities. 50 C.F.R.

§ 402.16 requires the re-initiation of consulta. x “where

discretionary Federal involvement or control over the

action has been retained.” Similarly, 50 C.F.R. $§ 402.02

and 402.14(g)(8) require that reasonable and prudent

alternatives suggested by the Services to avoid jeopardy be

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

- authority and jurisdiction.””

* In the preamble, the Services, discussing the regulatory

definition of “reasonable and prudent alternatives,” acknowledged

that they “should be mindful of the limits of a Federal agency's

jurisdiction and authority when prescribing a reasonable and prudent

alternative. An alternative, to be reasonable and prudent, should be

formulated in such a way that it can be implemented by a lederal

agency consistent with the scope of its legal authority and jurisdiction.”

Interagency Cooperation Regulations, 51 Fed Reg. at 19,937 ‘Pet.

App. 365) Under the court of appeals’ interpretation of ESA Section

7iav2), however, an alternative is always within the agency's legal

(Continued on following page)

The Services’ interpretation of the applicability

of Section 7(a)(2) is consistent with judicial interpretations

of the statute. Prior to the completion of the Services’

1986 rulemaking, the Tenth Circuit stated:

The [ESA] does not, by its terms, enlarge the

jurisdiction of the Corps of Engineers under the

|CWA].... The question in this case is how

broadly the Corps is authorized to look under the

[CWA] in determining the environmental impact

of the discharge fof pollutants) that it is

authorizing.

Riverside Irr. Dist. v. Andrews, 758 F.2d 508, 512 (10th

Cir. 1985); see also In re Operation of the Missouri

River System Litigation, 421 F.3d 618, 630 (8th Cir. 2005)

(“the ESA does not apply where an agency has no

statutory authority to act with discretion”); APPA, 137

F.3d at 299 (Section 7(a)(2) directs “agencies to channel

their existing authority in a particular manner” (emphasis

in original)); Platte River Whooping Crane Critical

Habitat Maint. Trust v. FERC, 962 F.2d 27, 34 (D.C. Cir.

1992) (Section 7 “directs agencies to ‘utilize their

authorities’ to carry out the ESA’s objectives” and does

not allow agencies to exceed their statutory authority).

The court of appeals, in contrast, interpreted Section

7(aX(2) as applying whenever an agency exercises

any “decisionmaking authority,” regardless of the

constraints on that authority. Pet. App. 42-44. The

court further determined that an inter-circuit conflict

already existed regarding the applicability of Section

7(aX(2) to mnon-discretionary actions. Jd. at 44-47.

Conflicting judicial interpretations of statutory terms —

demonstrate the existence of ambiguity. See Smiley

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

authority and jurisdiction because Section 7(a2) independently grants

authority to agencies.

The Services’ regulatory interpretation of the

applicability of Section 7(a)(2) to Federal actions

appropriately harmonizes the obligations imposed by

Section 7(a)(2) with EPA’s obligations under CWA Section

402, and prevents the imposition of conflicting statutory

duties. Consequently, 50 C.F.R. § 402.03 is entitled to

deference under Chevron. See, e.g., Brand X, 545 U.S.

at 980; United States v. Mead Corp., 533 U.S. 218, 229

(2001) (A reviewing court “is obliged to accept the agency’s

position if Congress has not previously spoken to the

point at issue and the agency’s interpretation is

reasonable”). “When Congress has entrusted the Secretary

lof the Interior] with broad discretion, we are especially

reluctant to substitute our views of wise policy for his.”

Sweet Home, 515 U.S. at 708. The court of appeals

erred by dismissing 50 C.F.R. § 402.03 because it “is a

regulation, not a statute.” Pet. App. 43 n.19 (emphasis in

original).

The court of appeals also suggested that 50 C_FR. § 402.03 was

not relevant to its analysis because EPA: (1) elected to initiate

consultation with FWS, and (2) refused to take a position below on

whether it was required to consult. Pet. App. 43 n.19. But EPA never

formally determined that its action was subject to Section 7ia2), i.e,

that EPA could disapprove Arizona's NPDES program despite finding

that the program satisfied the CWA’s criteria. Moreover, EPA's

reluctance to take a position did not prevent the State of Arizona and

Home Builders from arguing, as they did, that the applicability of

Section 7(a\(2) is governed by 50 C.F R. § 402.03. As the dissenting

judges recognized, this is a legal issue involving the interpretation of

statutes and agency regulations. See Pet. App. 64-67 & n.1, 1d. at 142

ns.1 & 2.

Ill. SECTION 7(a)(2) OF THE ENDANGERED

SPECIES ACT DOES NOT GRANT FEDERAL

AGENCIES INDEPENDENT AUTHORITY TO

ACT FOR THE BENEFIT OF LISTED SPECIES.

Rather than following the plain language of CWA

Section 402(b), the court of appeals reinterpreted Section

7, holding that Section 7 grants additional power to

Federal agencies to act for the benefit of listed species, and

creates an affirmative obligation to exercise that power

whenever a Federal agency authorizes, funds or carries

out an activity. See, e.g., Pet. App. 30-44. The court of

appeals thus held that Section 7 augments EPA's

authority, allowing EPA, in issuing an NPDES permit, to

control how private !and is used and how State water

rights are exercised. Yet Congress limited EPA’s authority

to regulating discharges of pollutants into the navigable

waters and, further, expressly recognized and preserved

the rights of each State to “plan the development and use

...0f land and water resources” and to “allocate quantities

of water within its jurisdiction” (33 U.S.C. § 1251(b) & (g)).

No court has previously interpreted Section 7(a)(2) in this

manner. As shown below, the court of appeals’ expansive

reading of ESA Section 7 is not supported by TVA v. Hill or

by the Act’s the legislative history.

A. The Language of the Endangered Species

Act of 1973 Does Not Support the Court of

Appeals’ Interpretation of Section 7(a)(2).

Section 7, as enacted in 1973, consisted of a single

paragraph and provided:

The Secretary shall review other programs

administered by him and utilize such programs

in furtherance of the purposes of this Act. All

other Federal departments and 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 [listed species]

and by taking such action necessary to insure

that actions authorized, funded, or carried out by

them do not jeopardize the continued existence of

such [listed species] or result in the destruction

or modification of [critical] habitat.

Endangered Species Act of 1973, Pub. L. No. 93-205, § 7,

87 Stat. 892. Thus, as originally enacted, Section 7

imposed two obligations on federal agencies: (1) to carry

out programs for the conservation of listed species; and (2)

to ensure that actions they authorize, fund, or carry out do

not jeopardize the continued existence of listed species or

destroy critical habitat. Both obligations were qualified by

the phrase “utilize their authorities.” /bid. This version of

Section 7 was applied by the Court in TVA v. Hill.

This statute (as well as the 1973 Act generally)

significantly increased Federal protection for wildlife.

The Endangered Species Preservation Act of 1966, Pub. L.

No. 89-669, 80 Stat. 926 (repealed 1973), for example,

contained language similar to Section 7, but the

obligations of Federal agencies were vague and heavily

qualified. The Secretary of the Interior was required to

review and utilize other programs administered by him in

furtherance of the Act “to the extent practicable.” Jd. at

.§ 2(d), 80 Stat. 927. The Secretary was also required to

“encourage” other Federal agencies to “utilize, where

practicable, their authorities in furtherance of the

purposes of this Act” and to “consult with and assist such

agencies in carrying out [the] endangered species

program.” /bid. Federal agencies were required to “seek

to” protect wildlife species and to preserve the habitat of

such species “on lands under their jurisdiction,” but only

“insofar as is practicable and consistent with |their}

primary purposes.” /d. at § 1\b), 80 Stat. 926; see also TVA

v. Hill, 437 U.S. at 174-76 (discussing prior legislation).

As this Court indicated in TVA v. Hill, 437 U.S. at

174, the 1973 Act and its legislative history must be read

against this backdrop. Thus, for example, Representative

Dingell explained, “|Section 7] substantially amplifie(s]

the obligation of [federal agencies] to take steps within

their power to carry out the purposes of this act.” 437

U.S. at 183 (emphasis supplied). There is nothing in the

1973 legislative history indicating that Congress intended,

in enacting Section 7, to grant additional authority

to Federal agencies or to override non-discretionary

mandates in other statutes. And, as explained below, TVA

v. Hill does not support a contrary interpretation.

B. TVA v. Hill Does Not Support the Court of

Appeals’ Interpretation of Section 7(a)(2).

The panel majority’s principal authority for its

interpretation of Section 7(a)(2) was TVA v. Hill. Pet.

App. 32-38. In that case, the Court did not consider

whether Section 7 grants additional authority to agencies.

Instead, the Court addressed two questions: (1) whether

the ESA requires a court to enjoin the operation of a

virtually completed Federal dam - a discretionary public

works project — where the Interior Secretary had

“determined that operation of the dam would eradicate an

endangered species"; and (2) whether continued

appropriations for the project constituted an implied.

repeal of the ESA. TVA v. Hill, 437 U.S. at 156. No dispute

existed that the dam’s operation would not only violate

the ESA, but would directly cause the extirpation

of a listed species. Jd. at 171 (“We begin with the premise

that operation of the Tellico Dam will either eradicate

the known population of snail darters or destroy

their critical habitat.”). Consequently, the Court held,

based on those facts, that Congress had foreclosed the

exercise of equitable discretion and affirmed the court of

appeals’ injunction preventing operation of the dam. /d. at

193-96.

On the second question, the Court held that a line

item in an appropriations act failed to evidence a clear and

manifest intent by Congress to override the ESA, relying

on the rule that repeals by implication are disfavored. Jd.

at 189-93. The Court explained that “le)xpressions of

committees dealing with requests for appropriations

cannot be equated with statutes enacted by Congress,” and

that “there is no indication that Congress as a whole was

aware of TVA’s position.” Jd. at 191-92. The Court also

explained that until 1978, the Appropriations Committee

was unaware of the possible applicability of Section 7 to

the project, and that funds had been appropriated to allow

the snail darter to be transplanted, potentially avoiding

any conflict. Jd. at 192-93. The Court’s analysis did not

address the obligation of a Federal agency faced with a

non-discretionary statutory mandate.

In short, the Court did not hold that ESA Section 7

granted additional powers to federal agencies, nor did the

Court need to do so given the questions presented and the

indisputable violation of the statute’s prohibition against

jeopardizing listed species. See Weinberger v. Romero-

Barcelo, 456 U.S. 305, 313-17 (1982) (discussing and

distinguishing TVA v. Hill in the context of an alleged

CWA violation). The excerpts of legislative history

discussed by the Court, while showing that Congress

intended to strengthen the protections afforded listed

species relative to the ESA’s predecessor statutes, do not

demonstrate that Congress intended to grant agencies

independent authority to act for the benefit of listed

species.

C. The 1978 and 1979 Amendments to the

Endangered Species Act Did Not Expand

the Scope and Applicability of Section

7(a)(2).

The court of appeals also relied on the 1978 and 1979

ESA amendments, which divided Section 7 _ into

subsections and added the Endangered Species Committee

exemption process, as evidencing Congress’ intent to grant

additional power to agencies. Pet. App. 34-38. Again, the

court simply read too much into these amendments, which

did not alter the obligations of Federal agencies.

The court cited the different language found in ESA

Sections 7(a)(2) and 7(a)(1) as supporting its statutory

interpretation. Jd. at 34. Section 7(a)(1), 16 U.S.C.

§ 1536(a)(1), directs agencies to “utilize their authorities in

furtherance of the purposes of this chapter by carrying out

programs for the conservation of species.” Since Section

7(a)(1) refers to agencies’ “authorities” while Section

7(a)(2) does not, the court concluded Congress intended to

grant additional authority to federal agencies in Section

7(aX(2). Id. at 34-35. This conclusion was erroneous for

several reasons.

Section 2(c) of the original statute (which survives in

the current Act) declares Congress’ policy that all federal

agencies “shall seek to conserve ... species and shall use

their authorities in furtherance of this. chapter.”

Endangered Species Act of 1973, Pub. L. No. 93-205, § 2(c),

87 Stat. 885 (currently at 16 U.S.C. § 1531(c)(1))

‘emphasis supplied). As shown above, Section 7, as

originally enacted, contained the same _ qualifying

language. Jd. at §7, 87 Stat. 892. The court of appeals

cited a 1973 committee report to show that Section 7

contained two distinct obligations, which later became

separate subsections. Pet. App. 34-35. But that report

simply paraphrased without explanation the language in

the original version of Section 7. See H.R. Rep. No. 93-412,

at 14 (1973). The same report also explained, in discussing

the purpose of the ESA, that “the bill declares a policy that

Federal agencies are to use the authorities that are

available to them in carrying out the objectives of this bill.”

Id. at 6 (emphasis supplied); see alsw id. at 10 (discussing

ESA Section 2(c)).

Moreover, Congress explained that its amendments to

Section 7 merely restated “existing law”:

The conferees adopted Senate language creating

a new Section 7(a), which essentially restates

section 7 of existing law, and outlines the

responsibilities of the Secretary and other

Federal agencies for protecting endangered

species.... The Conferees felt that the Senate

provision by retaining existing law, was

preferable since regulations governing section 7

are now familiar to most Federal agencies... .

H.R. Conf. Rep. No. 95-1804, at 18 (emphasis supplied)

_(Pet. App. 487); see also Pet. App. 36 (“The 1978

amendment did not change section 7’s_ substantive

provisions.”). Under “existing law,” an agency’s obligation

under Section 7 is limited by its authorities.

The court of appeals also failed to consider that

Sections 7(a)(l) and 7(a)\(2) have different language

because those provisions impose different requirements,

neither of which grants Federal agencies additional legal

authority. Section 7(a)(1) affirmatively directs all Federal

agencies to act for the benefit of listed species, but limits

that obligation to actions within each agency's existing

authority under its governing statutes. Section 7(a)(2),

in contrast, prohibits agencies from jeopardizing listing

species or destroying their critical habitat when

“authorizi[ng], fund{ing] or carrl|ying] out” an action,

which necessarily means that agency is acting (or

proposing to act) within the scope of its authority under its

governing statutes. In other words, the limitation in

Section 7(a)(1) would be redundant in Section 7(a)(2)

because an agency does not authorize, fund or carry out an

activity without being authorized to do so in the first

place. Nothing in Section 7(a)(2) suggests that Congress

intended to authorize Federal agencies to ignore

non-discretionary mandates imposed by other statutes.”

The court of appeals also claimed support for its

interpretation of Section 7 from ESA Sections 7(g) and (h),

16 U.S.C. § 1536(g) & (h), which were enacted in the wake

of TVA v. Hill and created a process under which projects

can be exempted from Section 7(a)(2). Pet. App. 36-37. The

-exemption process, however, deals with irreconcilable

conflicts presented after the consultation has concluded,

when, as in TVA v. Hill, a discretionary Federal action

would jeopardize a listed species. See, e.g., H.R Conf. Rep.

No. 96-697, at 14 (1979) (“The exemption process was

designed to resolve endangered species conflicts after

other administrative remedies, including consultation

have been exhausted. It makes no sense to initiate an

exemption process before it has been determined that

there is a need for an exemption in the first place.”) (Pet.

App. 514-15). The enactment of the exemption process

is irrelevant to whether Section 7(a)(2) applies to

EPA’s approval of State NPDES programs and other

non-discretionary actions.

In sum, there is simply nothing that supports the

court of appeals’ interpretation of Section 7(a)(2). While

In the 1978 amendments, Congress separated the second

sentence of Section 7 into two sentences and eliminated the phrase “by

taking action necessary” from the stutute. Compare Endangered

Species Act of 1973, Pub. L. No. 93-205, §7. 87 Stat. 892, with

Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, § 3,

92 Stat. 3752. This amendment also indicates that Section 7/a)2) is

intended to prohibit Federal agencies from jeopardizing listed species

when acting pursuant to their existing authorities, rather than

requiring agencies to take affirmative action to benetit species

Congress strengthened the protection afforded species of

fish and wildlife when it enacted the ESA in 1973,

Congress did not enact a law that generally requires

Federal agencies to violate their governing statutes

whenever they authorize, fund or carry out an activity.

This Court did not interpret Section 7 in this manner in

TVA v. Hill, and the legislative history does not support

such an illogical result.

IV. EPA'S APPROVAL OF ARIZONA’S NPDES

PROGRAM WAS NOT THE LEGALLY RELEVANT

-CAUSE OF FUTURE IMPACTS TO LISTED

SPECIES RESULTING FROM PRIVATE LAND

USES.

In Public Citizen, this Court addressed the obligations

of federal agencies under NEPA, an_ analogous

environmental statute. NEPA “is our basic national

charter for protection of the environment.” 40 C.F.R.

§ 1500.1(a). It applies to Federal actions “to the fullest

extent possible,” 42 U.S.C. § 4332, and “places upon an

agency the obligation to consider every significant aspect

of the environmental impact of a proposed action.”

Baltimore Gas & Electric Co. v. Natural Res. Def. Council,

Inc., 462 U.S. 87, 97 (1983).

The central issue in Public Citizen was the scope of

analysis required under NEPA. The Court explained that

“NEPA requires ‘a reasonably close causal relationship’

between the environmental effect and the alleged cause,”

not simply an attenuated “but for” causal relationship. 541

U.S. at 767 (following Metropolitan Edison Co. v. People

Against Nuclear Energy, 460 U.S. 766, 774 (1983)). Thus,

the Federal Motor Carrier Safety Administration

(FMCSA), in adopting regulations imposing inspection and

safety requirements on Mexican-domiciled motor carriers

operating in the United States, was required to evaluate

only those environmental impacts resulting from activities

that Congress authorized the agency to regulate. Jd. at

768-69. The Court concluded:

We hold that where an agency has no ability to-

prevent a certain effect due to its limited

statutory authority over the relevant actions, the

agency cannot be considered a legally relevant

“cause” of the effect. Hence, under NEPA and the

' implementing CEQ regulations, the agency need

not consider these effects in its [environmental

assessment] when determining whether its

action is a “major Federal action.”

Id. at 770.

In this case, the court of appeals, noting the similarity

between the regulations defining the effects of an agency’s

action under NEPA and the ESA, adopted the Court’s

Public Citizen standard for determining whether a

proposed action is the legally relevant cause of adverse

effects to listed species under Section 7(a)(2). Pet. App.

29-30. The court of appeals explained that a causal

relationship must exist between the proposed action and

impacts on listed species, and that such a relationship

depends on the agency’s lega! authority. Jd. at 29 (“a

negative impact on listed species is the likely direct or

indirect effect of an agency’s action only if the agency has

some control over that result” (emphasis supplied)). The

court nevertheless held, purporting to apply Public Citizen,

that EPA’s approval of Arizona’s NPDES program “will

cause whatever harm may flow from the loss of section 7

conservation benefits” on future projects requiring an

NPDES permit to discharge pollutants, and this “harm” is

an “indirect effect” of EPA’s action. See id. at 47-48.

“Indirect effects” are fcaused by the proposed action,

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

50 C.F.R. § 402.02 (definition of “effects of the action”).

Indirect effects “include the effects on listed species and

critical habitat of future activities that are induced by

the action subject to consultation and that occur after

the action is completed.” Jnteragency Cooperation

Regulations, 51 Fed.Reg. at 19,932 (Pet. App. 344). Real

estate development is not induced by a change in the

permit-issuing authority. As FWS explained in the

biological opinion, “/djevelopments are driven by any

number of factors, including but not limited to demand,

supply, economics, political decisions, zoning regulations,

and financial market stability. Based upon the best

available information, development in the action area will

not be caused by EPA’s proposed approval.” Pet. App. 113.”

The majority summarily rejected this reasoning as

“implausible,” concluding instead that future real estate

development and CWA permits are links in the same “‘but

for’ causal chain.” Jd. at 27-28. If this strained reasoning

were applied to FMCSA’s rulemaking in Public Citizen, the

President’s decision to lift the moratorium and the

agency’s promulgation of safety rules for Mexican motor

carriers would likewise constitute “but for” links in the

same causal chain. FMCSA thus would have been required

to extend the scope of its NEPA analysis to impacts over

which the agency had no control — a result this Court

expressly rejected.”

'* FWS employees initially were confused about what type of causal

relationship is needed for an impact to be considered an “indirect effect”

under the Services’ definition. See J.A. 328-30. As one FWS emplovee

complained, “there is a basic lack of understanding throughout the

Service as to what indirect effects are.” Jd. at 329.

* The court of appeals cited as authority for this point Olympic

Airways v. Husain, 540 U.S. 644 (2004), which dealt with the

interpretation of the term “accident” in the context of Article 14 of the

Warsaw Convention. In Public Citizen, in contrast, this Court

analogized NEPA’s causation requirement to the tort concept of

proximate cause. Public Citizen, 541 U.S. at 767 (following Metropolitan

Edison, 460 US. at 774 & n.7).

The court of appeals’ causation construct was based on

its erroneous belief that EPA, when issuing CWA permits,

has the authority to control how private land is used. In

rejecting Home Builders’ argument on this point, the court

stated that NPDES permits “relate to the construction

itself, not to a discrete discharge during construction.” Jd.

at 49 n.22. No authority was cited for this statement, and

it cannot be reconciled with the CWA’s basic framework,

which recognizes the paramount right of states to regulate

land uses. 33 U.S.C. § 1251(b); see also SWANCC, 531 U.S.

at 174. The NPDES program authorizes EPA (or a State

with an approved program) to regulate discharges of

pollutants from point sources, but does not authorize EPA

to regulate the activity from which the discharge results.

For example, in striking down EPA _ regulations

authorizing the imposition of non-water quality related

conditions in NPDES permits, the District of Columbia

Circuit explained that “EPA’s jurisdiction under the |CWA|

is limited to regulating the discharge of pollutants. Thus,

just as EPA lacks authority to ban construction of new

sources pending permit issuance, so the agency is

powerless to impose permit conditions unrelated to the

discharge itself.” NRDC II, 859 F.2d at 170. For the same

reason, that court held in NRDC I that EPA lacks

authority to impose a ban on the construction

of a new facility that, when operating, will require

an NPDES permit to discharge pollutants. 822 F.2d at

127-31. In short, “the Clean Water Act gives the EPA

jurisdiction to regulate and control only actual discharges

— not potential discharges, and certainly not point sources

themselves.” Waterkeeper Alliance, Inc. v. EPA, 399 F.3d

486, 505 (2d Cir. 2005) (emphasis in original); accord

United States v. Mango, 199 F.3d 85, 93 & n.7 (2d Cir.

1999) (conditions imposed in permits issued under CWA

Section 404, 33 U.S.C. § 1344, must be related to the

discharge).

The court of appeals also justified its causation

analysis by contending that home building and other

private land uses are “activities that are interrelated or

interdependent with [the Federal] action,” ie., the

issuance of NPDES permits. Pet. App. 50 (citing 50 C.F.R.

§ 402.02 (definition of “effects of the action”)). The court,

however, ignored the remainder of this definition, which

provides: “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.” 50 C.FR. §402.02. A _ real estate

development, obviously, does not depend on a NPDES

permit for its justification and has utility separate and

apart from the permit — the purpose of the development is

to build and sell homes, not discharge pollutants.

Consequently, when EPA consults with FWS under

ESA Section 7(a)(2) in connection with issuing an NPDES

permit, the consultation must be limited to effects on the |

water body receiving the discharge and the waters

downstream thereof (i.e., the “action area”). See 50 C.F.R.

§ 402.02 (defining “action area”); Riverside Irr. Dist., 758

F.2d at 512 (the relevant “action area” relating to a CWA

permit for the construction of a dam included downstream

aquatic habitat). Real estate development and other

private land uses are not an “effect” of the action because

private land uses are not caused by the issuance of a

NPDES permit. Thus, under Public Citizen’s causation

analysis, EPA is not required by Section 7(a)(2) to ensure

that future land uses do not jeopardize listed species or

adversely modify their critical habitat. See 16 U.S.C.

§ 1536(a)(2); 50 C.FLR. §§ 402.01, 402.03.

V. REMAND TO EPA WOULD NOT BE

APPROPRIATE BECAUSE EPA COMPLIED

WITH THE CLEAN WATER ACT AND THE

ISSUES BEFORE THE COURT CONCERN THE

INTERPRETATION OF STATUTORY PROVISIONS.

The court of appeals’ determination that EPA took

contradictory positions regarding its obligations under

Section 7(a)(2) (see Pet. App. 23-28) was misplaced and, in

any event, does not support a remand to EPA under the

current posture of the case.

The court of appeals stated that EPA determined that

it was required to consult with FWS but was “not

permitted, as a matter of law, to take into account the

impact on listed species” in acting on Arizona’s NPDES

program submission under CWA Section 402(b). Pet. App.

26-27. The court concluded that because’ both

requirements cannot be correct, EPA’s ultimate decision,

i.e., approval of Arizona’s NPDES program, “was not the

result of reasoned decisionmaking.” Jd. at 27.” This

reasoning was superficial and conflicts with the record,

which shows that EPA’s position on its CWA authority was

consistent, not arbitrary and capricious.

EPA consistently maintained that approval of Arizona’s

NPDES program under CWA Section 402(b) merely

constituted a shift in administrative responsibility for issuing

and enforcing permits under the NPDES program. See id. at

114, 564, 615. EPA also maintained it lacked authority

“ The court of appeals also concluded that EPA’s (and FWS's)

position, that future impacts on listed species resulting from private

land use are not caused by the approval of Arizona’s program, was

implausible. Pet. App. 27-28. As discussed in part IV, supra, the court's

conclusion was the result of erroneously applying Public Citizen and

incorrectly assuming that EPA regulates upland land uses when issuing

CWA permits, rather than discharges of pollutants into navigable

waters.

under the CWA to regulate non-water-quality-related

impacts resulting from private land use activities. See,

e.g., id. at 114, 564-65. EPA’s position was consistent with

the two prior consultations between EPA and the Services,

which were also limited to species affected by surface

water quality. Approval of Application by Maine, 66

Fed.Reg. at 12,793-94; Approval of Application by Texas,

63 Fed.Reg. at 51,201. Moreover, the local FWS employees

agreed that approval of Arizona’s NPDES program would

have no adverse water quality-related impacts on listed

species or critical habitat. See, e.g., Pet. App. 563. At that

point, the consultation should have concluded informally,

without a biological opinion. See 50 C.F.R. §§ 402.13,

402.14(b)(1).

Instead, local FWS employees quarreled with EPA's

interpretation of EPA’s legal authority under the CWA,

and contended “all the effects” of EPA’s action must be

evaluated “regardless of whether [EPA] could do anything

about those effects,” notwithstanding FWS’s own confusion

over what constitutes an “indirect effect.” J.A. 121, 328-30.

This dispute was elevated to the agencies’ headquarters

(id. at 123), and FWS issued a biological opinion

containing the reasoning characterized as contradictory by

the court. That reasoning, however, was premised on the

plain language of CWA Section 402(b), which required EPA

to approve Arizona’s NPDES program if the nine statutory

criteria are satisfied, and EPA’s authority to regulate

discharges of pollutants — not private land use activities.

The court of appeals acknowledged that EPA had

“complied with its obligations under the |CWA|” (Pet. App.

47), and therefore its decision was neither arbitrary nor

capricious. The court instead concluded that EPA

mistakenly relied on FWS’s biological opinion, which “was

flawed in its basic legal premise.” /d. at 48. The court of

appeals’ “legal premise” was that Section 7ia"2) grants

additional authority to Federal agencies and that this

authority overrides all non-discretionary mandates

imposed by the CWA. Whether the court of appeals’

interpretation of these statutes was correct is a legal

question that this Court should decide. See 5 U.S.C. § 706

(“when presented, the reviewing court shall decide all

relevant questions of law [and] interpret constitutional

and statutory provisions”); see also Pet. App. 64-66 & n.1

(Thompson, J., dissenting); id. at 142 ns.1 & 2 (Kozinski,

J., dissenting from denial of rehearing).

Remand to the agency is normally required “[iJf the

record before the agency does not support the agency

action, if the agency has not considered all relevant

’ factors, or if the reviewing court simply cannot evaluate

the challenged agency action on the basis of the record

before it ....” Florida Power & Light Co. v. Lorion, 470

U.S. 729, 744 (1985). Thus, remand is appropriate when

additional factual development or clarification is required.

See, e.g., Gonzalez v. Thomas, __ U.S. ___, 126 S.Ct. 1613,

1615 (2006) (remanding the case to the agency because

“(tlhe matter required determining the facts and deciding

whether the facts as found fall within a statutory term”);

INS v. Ventura, 537 U.S. 12, 16-17 (2002) (same). Here, in

contrast, the questions before the Court turn on the

interpretation of the CWA and the ESA (and those

statutes’ implementing regulations), which does not

require further development of a factual record.

As Home Builders and the State of Arizona argued

below, EPA was not required to consult with FWS prior to

approving Arizona’s NPDES program: EPA has no

discretion to act for the benefit of listed species when

approving State programs under CWA Section 402(b), and

the Services’ regulation, 50 C.F.R. § 402.03, should have

been controlling. To the extent that the positions of EPA

and the Services on the applicability of Section 7/a\2) to

State NPDES program approvals under CWA Section

: 50

402(b) require clarification, the agencies now have

authoritatively spoken on this issue and have determined

Section 7(a)(2) does not apply in this context. See EPA Pet.

App. 93a-102a (App. C), 103a-110a (App. D), 1lla-1l6a

(App. E). “[I]f the agency adequately explains the reasons

for a reversal of policy, ‘change is not invalidating, since

the whole point of Chevron is to leave the discretion

provided by ambiguities of a _ statute with the

implementing agency.’” Brand X, 545 U.S. at 981 (quoting

Smiley, 517 U.S. at 742). Remand under these

circumstances would add nothing to the record and,

instead, would delay resolution of the significant legal

questions presented in this case.

CONCLUSION

For the foregoing reasons, the decision by the United

States Court of Appeals for the Ninth Circuit should be

vacated.

DATED: February 20, 2007.

Respectfully submitted,

RUSSELL S. FRYE NORMAN D. JAMES

FRYE LAW PLLC (Counsel of Record)

3050 K Street NW, Suite 400 FENNEMORE CRAIG, P.C.

Washington, DC 20007-5108 3003 North Central Avenue,

(202) 527-8267 Suite 2600

: Phoenix, AZ 85012-2913

(602) 916-5346 -

DUANE J. DESIDERIO

THOMAS J. WARD

NATIONAL ASSOCIATION OF

HOME BUILDERS

1201 15th Street, NW

Washington, DC 20005-2800

(202) 266-8200

App. 1

STATUTES

33 U.S.C. § 1251. Congressional declaration of goals

and policy

(a) Restoration and maintenance of chemical,

physical and biological integrity of Nation’s

waters; national goals for achievement of

objective

The objective of this chapter is to restore and

maintain the chemical, physical, and biological integrity of

the Nation’s waters. In order to achieve this objective it is

hereby declared that, consistent with the provisions of this

chapter —

(1) it is the national goal that the discharge of

pollutants into the navigable waters be eliminated by

1985;

(2) it is the national goal that wherever attainable,

an interim goal of water quality which provides for the

protection and propagation of fish, shellfish, and wildlife

and provides for recreation in and on the water be

achieved by July 1, 1983; _

(3) it is the national policy that the discharge of toxic

pollutants in toxic amounts be prohibited;

(4) it is the national policy that Federal financial

assistance be provided to construct publicly owned waste

treatment works;

(5) it is the national policy that areawide waste

treatment management planning processes be developed

and implemented to assure adequate control of sources of

pollutants in each State;

App. 2

(6) itis the national policy that a major research and

demonstration effort be made to develop technology

necessary to eliminate the discharge of pollutants into the

navigable waters, waters of the contiguous zone, and the

oceans; and

(7) it is the national policy that programs for the

control of nonpoint sources of pollution be developed and

implemented in an expeditious manner so as to enable the

goals of this chapter to be met through the control of both

point and nonpoint sources of pollution.

(b) Congressional recognition, preservation, and

protection of primary responsibilities and rights

of States

It is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution, to plan the development and use (including

restoration, preservation, and enhancement) of land and

water resources, and to consult with the Administrator

in the exercise of his authority under this chapter. It is

the policy of Congress that the States manage the

construction grant program under this chapter and

implement the permit programs under sections 1342

and 1344 of this title. It is further the policy of the

Congress to support and aid research relating to the

prevention, reduction, and elimination of pollution, and

to provide Federal technical services and financial aid to

State and interstate agencies and municipalities in

connection with the prevention, reduction, and

elimination of pollution.

* * *

App. 3

(d) Administrator of Environmental Protection

Agency to administer chapter

Except as otherwise expressly provided in this

chapter, the Administrator of the Environmental

Protection Agency (hereinafter in this chapter called

“Administrator”) shall administer this chapter.

(e) Public participation in development, revision,

and enforcement of any regulation, etc.

Public participation in the development, revision, and

enforcement of any regulation, standard, effluent

limitation, plan, or program established by the

Administrator or any State under this chapter shall be

provided for, encouraged, and assisted by _ the

Administrator and the States. The Administrator, in

cooperation with the States, shall develop and publish

regulations specifying minimum guidelines for public

participation in such processes.

(f) Procedures utilized for implementing chapter

It is the national policy that to the maximum extent

possible the procedures utilized for implementing this

chapter shall encourage the drastic minimization of

paperwork and interagency decision procedures, and the

best use of available manpower and funds, so as to prevent

needless duplication and unnecessary delays at all levels

of government.

(g) Authority of States over water

It is the policy of Congress that the authority of each

State to allocate quantities of water within its jurisdiction-

shall not be superseded, abrogated or otherwise impaired

by this chapter. It is the further policy of Congress that

nothing in this chapter shall be construed to supersede or

App. 4

abrogate rights to quantities of water which have been

established by anv State. Federal agencies shall co-operate

with State and local agencies to develop comprehensive

solutions to prevent, reduce and eliminate pollution in

concert with programs for managing water resources.

33 U.S.C. § 1311. Effluent limitations

(a) legality of pollutant discharges except in

compliance with law

Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342, and 1344 of this

title, the discharge of any pollutant by any person shall

be unlawful.

33 U.S.C. § 1342. National pollutant discharge

elimination system

(a) Permits for discharge of pollutants

(1) Except as provided in sections 1328 and 1344 of

this title, the Administrator may, after opportunity for

public hearing issue a permit for the discharge of any

pollutant, or combination of pollutants, notwithstanding

section 131l{a) of this title, upon condition that such

discharge will meet either (A) all applicable requirements

under sections 1311, 1312, 1316, 1317, 1318, and 1343 of

this title, or (B) prior to the taking of necessary

impiementing actions relating to all such requirements,

such conditions as the Administrator determines are

necessary to carry out the provisions of this chapter.

(2) The Administrator shal! prescribe conditions for

such permits to assure compliance with the requirements

App. 5

of paragraph (1) of this subsection, including conditions on

data and information collection, reporting, and such other

requirements as he deems appropriate.

(3) The permit program of the Administrator under

paragraph (1) of this subsection, and permits issued

thereunder, shall be subject to the same terms, conditions,

and requirements as apply to a State permit program and

permits issued thereunder under subsection (b) of this

section.

(b) State permit programs

At any time after the promulgation of the guidelines

required by subsection (i)(2) of section 1314 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 Administrator a

full and complete description of the program 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, that 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:

App. 6

(1) To issue permits which —

(A) apply, and insure compliance with, any

applicable requirements of sections 1311, 1312, 1316,

1317, and 1343 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 fully all relevant facts;

(iii) change in any condition that requires

either a temporary or permanent reduction or

elimination of the permitted discharge;

(D) control the disposal of pollutants into wells;

(2A) 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 1318 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 opportunity 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;

App. 7

(5) To insure that any State (other than the

permitting State), whose waters may be affected by the

issuance 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 Secretary

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 introducing

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 defined in section 1316 of this title if such source

were discharging polttutants, (B) new introductions of

pollutants into such works from a source which would be

App. 8

subject to section 1311 of this title if it were discharging

such pollutants, or (C) a substantial change in volume or

character of pollutants being introduced into such works

by a source introducing 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

to 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 1318 of this title.

submission of State program; withdrawal of

approval of State program; return of State

program to Administrator

(1) Not later than ninety days after the date on

which a State has submitted a program (or revision

thereof) pursuant to subsection (b) of this section, the

Administrator shall suspend the issuance of permits under

subsection (a) of this section as to those discharges subject

to such program unless he determines that the State

permit program does not meet the requirements of

subsection (b) of this section or does not conform to the

guidelines issued under section 1314(i)(2) of this title. If

the Administrator so determines, he shall notify the State

of any revisions or modifications necessary to conform to

such requirements or guidelines.

(2) Any State permit program under this section

shall at all times be in accordance with this section and

App. 9

guidelines promulgated pursuant to section 1314(i)(2) of

this title.

(3) Whenever the Administrator determines after

public hearing that a State is not administering a program

approved under this section in accordance with

requirements of this section, he shall so notify the State

and, if appropriate corrective action is not taken within a

reasonable time, not to exceed ninety days, the

Administrator shall withdraw approval of such program.

The Administrator shall not withdraw approval of any

such program unless he shall first have notified the State,

and made public, in writing, the reasons for such

withdrawal.

(4) LIMITATIONS ON PARTIAL PERMIT PROGRAM RETURNS

AND WITHDRAWALS. — A State may return to the

Administrator administration, and the Administrator may

withdraw under paragraph (3) of this subsection approval,

of —

(A) a State partial permit program approved

under subsection (n)(3) of this section only if the

entire permit program being administered by the

State department or agency at the time is returned or

withdrawn; and

(B) a State partial permit program approved

under subsection (n)(4) of this section only if an entire

phased component of the permit program being

administered by the State at the time is returned or

withdrawn.

(d) Notification of Administrator

(1) Each State shall transmit to the Administrator a

copy of each permit application received by such State and

App. 10

provide notice to the Administrator of every action related

to the consideration of such permit application, including

each permit proposed to be issued by such State.

(2) No permit shall issue (A) if the Administrator

within ninety days of the date of his notification under

subsection (b)(5) of this section objects in writing to the

issuance of such permit, or (B) if the Administrator within

ninety days of the date of transmittal of the proposed

permit by the State objects in writing to the issuance of

such permit as being outside the guidelines and

requirements of this chapter. Whenever the Administrator

objects to the issuance of a permit under this paragraph

such written objection shall contain a statement of the

reasons for such objection and the effluent limitations and

conditions which such permit would include if it were

issued by the Administrator.

(3) The Administrator may, as to any permit

application, waive paragraph (2) of this subsection.

(4) In any case where, after December 27, 1977, the

Administrator, pursuant to paragraph (2) of this

subsection, objects to the issuance of a permit, on request

of the State, a public hearing shall be held by the

Administrator on such objection. If the State does not

resubmit such permit revised to meet such objection

within 30 days after completion of the hearing, or, if no

hearing is requested within 90 days after the date of such

objection, the Administrator may issue the permit

pursuant to subsection (a) of this section for such source in

accordance with the guidelines and requirements of this

chapter.

App. 11

(e) Waiver of notification requirement

In accordance with guidelines promulgated pursuant

to subsection (i)(2) of section 1314 of this title, the

Administrator is authorized to waive the requirements of

subsection (d) of this section at the time he approves a

program pursuant to subsection (b) of this section for any

category (including any class, type, or size within such

category) of point sources within the State submitting

such program.

(f) Point source categories

The Administrator shall promulgate regulations

establishing categories of point sources which he

determines shall not be subject to the requirements of

subsection (d) of this section in any State with a program

approved pursuant to subsection (b) of this section. The

Administrator may distinguish among classes, types, and

sizes within any category of point sources.

* * baad

(k) Compliance with permits

Compliance with a permit-issued pursuant to this

section shall be deemed compliance, for purposes of

sections 1319 and 1365 of this title, with sections 1311,

1312, 1316, 1317, and 1343 of this title, except any

standard imposed under section 1317 of this title for a

toxic pollutant injurious to human health. Until December

31, 1974, in any case where a permit for discharge has

been applied for pursuant to this section, but final

administrative disposition of such application has not been

made, such discharge shall not be a violation of (1) section

1311, 1316, or 1342 of this title, or (2) section 407 of this

title, unless the Administrator or other plaintiff proves

App. 12

that final administrative disposition of such application

has not been made because of the failure of the applicant

to furnish information reasonably required or requested in

order to process the application. For the 180-day period

beginning on October 18, 1972, in the case of any point

source discharging any pollutant or combination of

pollutants immediately prior to such date which source is

not subject to section 407 of this title, the discharge by

such source shall not be a violation of this chapter if such

a source applies for a permit for discharge pursuant to this

section within such 180-day period.

x * *

16 U.S.C. § 1531. Congressional findings and

declaration of purposes and policy

(a) Findings

The Congress finds and declares that —

(1) various species of fish, wildlife, and plants in the

United States have been rendered extinct as a

consequence of economic growth and development

untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have

been so depleted in numbers that they are in danger of or

threatened with extinction;

(3) these species of fish, wildlife, and plants are of

esthetic, ecological, educational, historical, recreational,

and scientific value to the Nation and its people;

(4) the United States has pledged itself as a

sovereign state in the international community to conserve

App. 13

to the extent practicable the various species of fish or

wildlife and plants facing extinction, pursuant to —

(A) migratory bird treaties with Canada and

Mexico;

(B) the Migratory and Endangered Bird Treaty

with Japan;

Wildlife Preservation in the Western Hemisphere;

(D) the International Convention for the

Northwest Atlantic Fisheries;

(E) the International Convention for the High

Seas Fisheries of the North Pacific Ocean;

(F) the Convention on International Trade in

Endangered Species of Wild Fauna and Flora; and

(G) other international agreements; and

(5) encouraging the States and other interested

parties, through Federal financial assistance and a system

of incentives, to develop and maintain conservation

programs which meet national and _ international

standards is a key to meeting the Nation’s international

commitments and to better safeguarding, for the benefit of

all citizens, the Nation’s heritage in fish, wildlife, and

plants.

(b) Purposes

The purposes of this chapter are to provide a means

whereby the ecosystems upon which endangered species

and threatened species depend may be conserved, to

provide a program for the conservation of such endangered

species and threatened species, and to take such steps as

App. 14

may be appropriate to achieve the purposes of the treaties

and conventions set forth in subsection (a) of this section.

(1) It is further declared to be the policy of

Congress that all Federal departments and agencies

shall seek to conserve endangered species and

threatened species and shall utilize their authorities in

furtherance of the purposes of this chapter.”

(2) It is further declared to be the policy of Congress

that Federal agencies shall cooperate with State and local

agencies to resolve water resource issues in concert with

conservation of endangered species.

16 U.S.C. § 1536. Interagency cooperation

(a) Federal agency actions and consultations

(1) The Secretary shall review other programs

administered by him and utilize such programs in

furtherance 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 existence

of any endangered species or threatened species or result

App. 15

in the destruction or adverse modification of habitat of

such species which is determined by the Secretary, 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

Secretary on any prospective agency action at the request

of, and in cooperation with, the prospective permit or

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

Secretary 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 paragraph

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 amy 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.

App. 16

(B) Im the case of am agency action involving a

permit 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

subparagraph (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 —

(I) the reasons why a longer period is

required,

(II) the information that is required to

complete the consultation, and

(III) 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.

(3A) Promptly after conclusion of consultation

under paragraph (2) or (3) of subsection (a) of this section,

App. 17

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 prudent alternatives which

he believes would not violate subsection (a)(2) of this

section and can be taken by the Federal agency or

applicant-in implementing the agency action.

(B) Consultation under subsection (a)(3) 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 significant change has occurred

regarding the information used during the initial

consultation.

(4) If after consultation under subsection (a)2) of

this section, the Secretary concludes that —

(A) the agency action will not violate such

subsection, or offers reasonable and _ prudent

alternatives 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

App. 18

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 taking

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

(including, but not limited to, reporting requirements)

that must be complied with by the Federal agency or

applicant (if any), or both, to implement the measures

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 November 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 action. If the Secretary advises,

based on the best scientific and commercial data available,

that such species may be present, such agency shall

conduct a biological assessment for the purpose of

App. 19

identifying any endangered species or threatened species

which is likely to be affected by such action. Such

assessment shall be completed 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).

App. 20

REGULATIONS

40 C.F.R. § 123.1 Purpose and scope.

(a) This part specifies the procedures EPA will follow

in approving, revising, and withdrawing State programs

and the requirements State programs must meet to be

approved by the Administrator under sections 318, 402,

and 405(a) (National Pollutant Discharge Elimination

System — NPDES) of the CWA. This part also specifies the

procedures EPA will follow in approving, revising, and

withdrawing State programs under section 405(f) (sludge

management programs) of the CWA. The requirements

that a State sewage sludge management program must

meet for approval by the Administrator under section

405(f) are set out at 40 CFR part 501.

(b) These regulations are promulgated under the

authority of sections 304(i), 101(e), 405, and 518(e) of the

CWA, and implement the requirements of those sections.

_ which conform to the applicable requirements of this part.

A State NPDES program will not be approved by the

Administrator under section 402 of CWA unless it has

authority to control the discharges specified in sections

318 and 405(a) of CWA. Permit programs under sections

318 and 405(a) will not be approved independent of a

section 402 program.

(d1) Upon approval of a State program, the

Administrator shall suspend the issuance of Federal

permits for those activities subject to the approved State

program. After program approval EPA shall retain

jurisdiction over any permits (including general permits)

which it has issued unless arrangements have been made

App. 21

with the State in the Memorandum of Agreement for the

State to assume responsibility for these permits. Retention

of jurisdiction shall include the processing of any permit

appeals, modification requests, or variance requests; the

conduct of inspections, and the receipt and review of

self-monitoring reports. If any permit appeal, modification

request or variance request is not finally resolved when

the federally issued permit expires, EPA may, with the

consent of the State, retain jurisdiction until the matter is

resolved.

(2) The procedures outlined in the preceding

paragraph (d)(1) of this section for suspension of

permitting authority and transfer of existing permits will

also apply when EPA approves an Indian Tribe’s

application to operate a State program and a State was

the authorized permitting authority under § 123.23(b) for

activities within the scope of the newly approved program.

The authorized State will retain jurisdiction over its

existing permits as described in paragraph (d)(1) of this

section absent a different arrangement stated in the

Memorandum of Agreement executed between EPA and

the Tribe.

(e) Upon submission of a complete program, EPA will

conduct a public hearing, if interest is shown, and

determine whether to approve or disapprove the program

taking into consideration the requirements of this part,

the CWA and any comments received.

(f) Any State ‘program approved by the

Administrator shall at all times be conducted in

accordance with the requirements of this part.

(g(1) Except as may be authorized pursuant to

paragraph (g)(2) of this section or excluded by § 122.3, the

App. 22

State program must prohibit all point source discharges of

pollutants, all discharges into aquaculture projects, and all

disposal of sewage sludge which results in any pollutant

from such sludge entering into any waters of the United

States within the State’s jurisdiction except as authorized

by a permit in effect under the State program or under

section 402 of CWA. NPDES authority may be shared by

two or more State agencies but each agency must have

Statewide jurisdiction over a class of activities or

discharges. When more than one agency is responsible for

issuing permits, each agency must make a submission

meeting the requirements of § 123.21 before EPA will

begin formal review.

(2) A State may seek approval of a partial or phased

program in accordance with section 402(n) of the CWA.

(h) In many cases, States (other than Indian Tribes)

will lack authority to regulate activities on Indian lands.

This lack of authority does not impair that State’s ability

to obtain full program approval in accordance with this

part, i.e., inability of a State to regulate activities on

Indian lands does not constitute a partial program. EPA

will administer the program on Indian lands if a State (or

Indian Tribe) does not seek or have authority to regulate

activities on Indian lands.

NOTE: States are advised to contact the United States

Department of the Interior, Bureau of Indian Affairs, concerning

authority over Indian lands.

(i) Nothing in this part precludes a State from:

(1) Adopting or enforcing requirements which are

more stringent or more extensive than those required

under this part;

App. 23

(2) Operating a program with a greater scope of

coverage than that required under this part. If an

approved State program has greater scope of coverage

than required by Federal law the additional coverage is

not part of the Federally approved program.

NOTE: For example, if a State requires permits for

discharges into publicly owned treatment works, these permits

are not NPDES permits.

40 C.F.R. § 123.21 Elements of a program submission.

(a) Any State that seeks to administer a program

under this part shall submit to the Administrator at least

three copies of a program submission. The submission

shall contain the following:

(1) A letter from the Governor of the State (or in the

case of an Indian Tribe in accordance with § 123.33(b), the

Tribal authority exercising powers substantially similar to

those of a State Governor) requesting program approval;

(2) A complete program description, as required by

§ 123.22, describing how the State intends to carry out its

responsibilities under this part;

(3) An Attorney General’s statement as required by

§ 123.23;

(4) A Memorandum of Agreement with the Regional

Administrator as required by § 123.24;

(5) Copies of all applicable State statutes and

regulations, including those governing State

administrative procedures;

App. 24

(b)(1) Within 30 days of receipt by EPA of a State

program submission, EPA will notify the State whether its

submission is complete. If EPA finds that a State’s

submission is complete, the statutory review period (i.e.,

the period of time allotted for formal EPA review of a

proposed State program under CWA) shall be deemed to

have begun on the date of receipt of the State’s

submission. If EPA finds that a State’s submission is

incomplete, the statutory review period shall not begin

until all the necessary information is received by EPA.

(2) Im the case of an Indian Tribe eligible under

§ 123.33(b), EPA shall take into consideration the contents

of the Tribe’s request submitted under § 123.32, in

determining if the program submission required by

§ 123.21(a) is complete.

during the statutory review period, the statutory review

period shall begin again upon receipt of the revised

submission.

(d) The State and EPA may extend the statutory

review period by agreement.

40 C.F.R. § 123.61 Approval process.

(a) After determining that a State program

submission is complete, EPA shall publish notice of the

State’s application in the FEDERAL REGISTER, and in

enough of the largest newspapers in the State to attract

statewide attention, and shall mail notice to persons

known to be interested in such matters, including all

persons on appropriate State and EPA mailing lists and all

App. 25

permit holders and applicants within the State. The notice

shall:

(1) Provide a comment period of not less than 45

days during which interested members of the public may

express their views on the State program;

(2) Provide for a public hearing within the State to

be held no less than 30 days after notice is published in

the FEDERAL REGISTER;

(3) Indicate the cost of obtaining a copy of the State’s

submission;

(4) Indicate where and when the State’s submission

may be reviewed by the public;

(5) Indicate whom an interested member of the

public should contact with any questions; and

(6) Briefly outline the fundamental aspects of the

State’s proposed program, and the process for EPA review

and decision.

(b) Within 90 days of the receipt of a complete

program submission under § 123.21 the Administrator

shall approve or disapprove the program based on the

requirements of this part and of CWA and taking into

consideration all comments received. A responsiveness

summary shall be prepared by the Regional Office which

identifies the public participation activities conducted,

describes the matters presented to the public, summarizes

significant comments received and explains the Agency’s

response to these comments.

he or she shall notify the State and publish notice in the

App. 26

FEDERAL REGISTER. The Regional Administrator shall

suspend the issuance of permits by EPA as of the date of

program approval.

(d) If the Administrator disapproves the State

program he or she shall notify the State of the reasons for

disapproval and of any revisions or modifications to the

State program which are necessary to obtain approval.

50 C.F.R. § 402.01 Scope.

(a) This part interprets and implements sections

7(a)-(d) [16 U.S.C. 1536(a)-(d)] of the Endangered Species

Act of 1973, as amended (“Act”). Section 7(a) grants

authority to and imposes requirements upon Federal

agencies regarding endangered or threatened species of

fish, wildlife, or plants (“listed species”) and habitat of

such species that has been designated as critical (“critical

habitat”). Section 7(a)(1) of the Act directs Federal

agencies, in consultation with and with the assistance of

the Secretary of the Interior or of Commerce, as

appropriate, to utilize their authorities to further the

purposes of the Act by carrying out conservation programs

for listed species. Such affirmative conservation programs

must comply with applicable permit requirements (50 CFR

parts 17, 220, 222, and 227) for listed species and should

be coordinated with the appropriate Secretary. Section

7(aX2) of the Act requires every Federal agency, in

consultation with and with the assistance of the Secretary,

to insure that any action it authorizes, funds, or carries

out, in the United States or upon the high seas, is not

likely to jeopardize the continued existence of any listed

species or results in the destruction or adverse

modification of critical habitat. Section 7(a)(3) of the Act

App. 27

authorizes a prospective permit or license applicant to

request the issuing Federal agency to enter into early

consultation with the Service on a proposed action to

determine whether such action is likely to jeopardize the

continued existence of listed species or result in the

destruction or adverse modification of critical habitat.

Section 7(a)(4) of the Act requires Federal agencies to

confer with the Secretary on any action that is likely to

jeopardize the continued existence of proposed species or

' result in the destruction or adverse modification of

proposed critical habitat. Section 7(b) of the Act requires

the Secretary, after the conclusion of early or formal

_ consultation, to issue a written statement setting forth the

Secretary’s opinion detailing how the agency action affects

listed species or critical habitat Biological assessments are

required under section 7(c) of the Act if listed species or

critical habitat may be present in the area affected by any

major construction activity as defined in § 404.02. Section

7(d) of the Act prohibits Federal agencies and applicants

from making any irreversible or irretrievable commitment

of resources which has the effect of foreclosing the

formulation or implementation of reasonable and prudent

alternatives which would avoid jeopardizing the continued

existence of listed species or resulting in the destruction or

adverse modification of critical habitat. Section 7(e)-(0)(1)

of the Act provide procedures for granting exemptions

from the requirements of section 7(a)(2). Regulations

governing the submission of exemption applications are

found at 50 CFR part 451, and regulations governing the

exemption process are found at 50 CFR parts 450, 452,

and 453.

(b) The U.S. Fish and Wildlife Service (F WS) and the

National Marine Fisheries Service (NMFS) share

App. 28

responsibilities for administering the Act. The Lists of

Endangered and Threatened Wildlife and Plants are found

in 50 CFR 17.11 and 17.12 and the designated critical

habitats are found in 50 CFR 17.95 and 17.96 and 50 CFR.

part 226. Endangered or threatened species under the

jurisdiction of the NMFS are located in 50 CFR 222.23(a)

and 227.4. If the subject species is cited in 50 CFR 222.23(a)

or 227.4, the Federal agency shall contact the NMFS. For all

other listed species the Federal Agency shall contact the

FWSs.

50 C.F.R. § 402.02 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;

_(c) the granting of licenses, contracts, leases,

easements, rights-of-way, permits, or grants-in-aid; or

(d) actions’ directly or indirectly causing

modifications to the land, water, or air.

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.

App. 29

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

discussions between a Federal agency and the Service

under section 7(aX4) 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 recommendations are suggestions of the

Service regarding discretionary measures to minimize or

avoid adverse effects of a proposed action on listed species

or critical habitat or regarding the development of

information. .

Critical habitat refers to an area designated as critical

habitat listed in 50 CFR parts 17 or 226.

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.

App. 30

Designated non-Federal representative refers to a

person designated by the Federal agency as _ its

representative 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(aX3) 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

environmental 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 all proposed Federal projects in the action area

that have already undergone formal or early section 7

consultation, and the impact of State or private actions

which are contemporaneous with the consultation in

App. 31

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 Service’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-Federal

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 likelihood of both the

survival and recovery of a listed species in the wild by

reducing the reproduction, numbers, or distribution of that

species.

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 17.11-17.12.

Mayor construction activity is a construction project (or

other undertaking having similar physical impacts) which

App. 32

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

alternative 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

existence 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 to

minimize the impacts, i.e., amount or extent, of incidental

take.

Recovery means improvement in the status of listed

species to the point at which listing is no longer

appropriate under the criteria set out in section 4(a)(1) of

the Act.

App. 33

Service means the US. Fish and Wildlife Service or

the National Marine Fisheries Service, as appropriate.

50 C.F.R. § 402.03 Applicability.

Section 7 and the requirements of this Part apply to

all actions in which there is discretionary Federal

involvement or control.

50 C.F.R. § 402.14 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 critica] habitat. If such a determination 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

consulta

This text is long and has been trimmed here. Open the source document for the complete record.

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.