Amicus Curiae Brief — Environmental Protection Agency v. Defenders of Wildlife

1S} . ({2)

Nos. 06-340 and 06- 549

In The

Supreme Court of the United States

NATIONAL ASSOCIATION OF HOME BUILDERS, ET AL.,

Petitioners,

Vv.

DEFENDERS OF WILDLIFE, ET AL.,

Respondents.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

Petitioner,

Vv.

DEFENDERS OF WILDLIFE, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF OF AMICUS CURIAE

THE NATIONAL ASSOCIATION OF CLEAN WATER

AGENCIES IN SUPPORT OF PETITIONERS

Alexandra D. Dunn William A. Anderson, II

General Counsel | Counsel of Record

National Association of Sean M. Sullivan

Clean Water Agencies D. Cameron Prell

1816 Jefferson Place, NW WILLIAMS MULLEN, P.C.

Washington, DC 20036 1666 K Street NW

(202) 533-1803 Washington, DC 20006

(202) 833-9200

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TABLE OF CONTENTS

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I. CONGRESS HAS DIRECTLY SPOKEN TO APPROVAL

CRITERIA FOR STATE NPDES PROGRAMS .............. 3

A. CWA SECTION 402(B) Limits EPA’s DisCRETION

To DISAPPROVE STATE NPDES PROGRAMG.......... 3

B. CONGRESS DEMANDED IMPLEMENTATION

WITHOUT INTERFERENCE. .........00......00.c0cccccceceeeeeecees 5

C. CONGRESS CHOSE TO GIVE THE STATES THE

PRIMARY ROLE IN THE NPDES PERMIT

Il. BotH NPDES AND ESA REGULATIONS PRECLUDED

EPA FROM CONSIDERING THE ESA....................... 10

A. EPA’s NPDES RULES PREVENT THE AGENCY

FROM INJECTING ESA CONCERNS INTO CWA

SECTION 402(B) APPROVALS ....000..............000000ceeeeee 10

B. ESA REGULATIONS INSTRUCTED EPA Not To

Se I sc uilisiuadeemmennaalatadidiabouiuica 13

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TABLE OF AUTHORITIES

CASES

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

FEI cccnsitenencccescsnontniienitssnmtnesenisuainiapansensmeninanionetapmesh 5

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837 (1984) . ...3, 13

Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005),

cert. granted, 127 S.Ct. 852 (2007) 0.0... ccccsssesssseteeeeeeeees 3

Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990)........... 10

Narragansett Elec. Co. v. EPA, 407 F.3d 1 (Ast Cir. 2005)...5

PUD No. 1 of Jefferson County v. Washington Dep't of

eee, Fab TED. FER CE ei cccecscnscessssecnceerscnssvnsosenssontoons 8

RiverKeeper, Inc. v. EPA, No. 04-6692-(ag)(L), slip op. (2d

Cir. Jan. 25, 2007), available at 2007 WL 184658........... 10

United States v. Nixon, 418 U.S. 683 (1974) 00.0... eee 10

STATUTES

Administrative Procedure Act, 5 U.S.C. § 551, ef seq. ..........4

Coastal Zone Management Act, 16 U.S.C. § 1451 ef seq......4

Endangered Species Act, 16 U.S.C. § 1531, ef seq.........0...... |

eer ak STII crsicicinusietsscinbiuiepnitilateinniedsnintnagions 13

Federal Water Pollution Control Act, 33 U.S.C. § 1251, et.

EE SEE sled dai nininineimnionamismecnsuiaagisnibeyte passim

ee Ree: Ue GE caseitnciosevinebidiadantiiahadiduapiliasiinniptalandiieid l

33 U.S.C. § 1251 note (2000 & Supp. IV 2004)........... 4

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UM i cihiiocindsitsssinicinisidiiuiddninpibaniincihabiabiciaiies 5

Se Oe ee ieialichicsoriciinisiniiansnidelsiieuaileiiliiapiaebielaamibiiaaantd 5

a ald og 8

Be ad IE ches siniceinesiiclissciceshaciaiuldstimniesiibaititeaiaimaiéil 8

iiss Ur III snc hsascinicesiiacccibeinsbiageassastiinsisiiabsiaacadsiaii 10

irs ae SE his shicnidnncseniekcsantntanaduntiniin passim

33 U.S.C. § 1342(c)

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as ad acid cilia laitagnllatl 8

ig I cid casinisiilicliahiesiiessbidnedhaialieidinidiiaddiiien 7

Se a I nici iittala 6

Federal Water Pollution Control Act Amendments of 1972,

Pub. L. No. 92-500, 86 Stat. 816 (1972) oo... ccceeeeeeeeeeeeees 3

National Environmental Policy Act, 42 U.S.C. § 4331, ef

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Oil Pollution Act, 33 U.S.C. § 2701 ef Seq. .....ccceccceeceeeteeeeees 4

REGULATIONS

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LEGISLATIVE HISTORY

Congressional Research Service, A Legislative History of

the Water Pollution Control Act Amendments of 1972,

a a a iciinsiiticiicaiintaininehie iavainpceiiiinsianiiaitiidlinaninieedl 6,7

H.R. Rep. No. 92-911 (1972), reprinted in Congressional

Research Service, | A Legislative History of the Water

Pollution Control Act Amendments of 1972, No. 93-1

ENE are Ne aa A OO ee 8

S. Rep. No. 92-414 (1971). reprinted in Congressional

Research Service, 2 A Legislative History of the Water

Pollution Control Act Amendments of 1972, No. 93-1

PEP NNENLisil ti dinendiainhiisedbiadesedenitslelsinitininsdianesestensstiesadsediasvimmntal 8

FEDERAL REGISTER NOTICES

43 Fed. Reg. 37,078 (Aug. 21, 1978).............csescssscssroresees 12

3 8 SB SR | nen 12

COURT DOCUMENTS

| RTE ce ea ORO LAR AR 2,13

National Association of Home Builders Pet. for Cert. ........ 13

OTHER AUTHORITIES

Broward County, Florida, NatureScape Broward ~ Between

Sawgrass and Seagrass, at http://www.broward.org/

naturescape/ (last visited Feb. 19, 2007). ...........:..cccccceeeeees 9

Collier County, Florida, Res. Nos. 2005-174 & 2006-41 ...... 9

King County Wastewater Treatment Division, Habitat

Conservation Plan, at http://dnr.metrokc.gov/wtd/hep/

eI SIRs IDI vicensieniceenditniscicissciiitsinhpsnslenteniinidiindnes 9

Pima County Board of Supervisors, Pima County

Multi—Species Conservation Plan (2006) .............cccccccce00e 9

Pima County Board of Supervisors, Sonoran Desert

Conservation Plan Update (2006).................:::cccceesseeeeeeeees 9

San Francisco Public Utilities Commission, Res. No. 00-

Sie acctaieptovsieseidienicildainiinintténiabansaavetiinddiobniieadeaeiinisetl 9

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BRIEF OF THE NATIONAL ASSOCIATION OF

CLEAN WATER AGENCIES AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS!

INTEREST OF THE AMICUS

Amicus curiae the National Association of Clean

Water Agencies (“NACWA”) represents the nation’s

publicly-owned wastewater treatment works (“POTW”)

aeee.cies. NACWA’s nearly 300 member agencies collect,

treat and reclaim over 18 billion gallons per day of

wastewater to provide most of the U.S. population with

reliable sewer service. NACWA members are directly

affected by regulatory decisions made under the Clean Water

Act, 33 U.S.C. § 1251, et seq. (“CWA”). These members

operate their POTWs pursuant to National Pollution

Discharge Elimination System (“NPDES”) permits, most of

which were issued by states approved by the United States

Environmental Protection Agency (“EPA”) pursuant to

Section 402(b) of the CWA. NACWA’s members exist to

provide effective wastewater treatment and to promote water

quality. They are committed to protecting the integrity of the

CWA. NACWA’s interest in this case is in avoiding the

improper extension of the Endangered Species Act, 16

U.S.C. § 1531, et seg. (“ESA”) to impede administration of

the CWA. It takes no position on any other aspect of EPA’s

approval of Arizona’s NPDES program, including the

' Pursuant to Rule 37.6 of this Court, Amicus represent that counsel for

Amicus authored this brief in its entirety and that no person or entity

other than Amicus and their representatives made any monetary

contribution to the preparation or submission of this brief.

additional question on which the Court requested briefing by

the parties.

STATEMENT OF THE CASE

NACWA adopts the statement of the case contained

in the United States Environmental Protection Agency’s

Petition for Writ of Certiorari (“EPA Petition”) filed in this

proceeding, except insofar as the EPA Petition suggests that

EPA transfers NPDES permit authority to a State. Rather

than a transfer by EPA, see EPA Pet. For Cert. at 2-8, CWA

Section 402(b) provides for assumption of that authority by

the States.

SUMMARY OF ARGUMENT

The plain text of Section 402(b), as well as the

structure of the CWA as a whole and its legislative history,

demonstrates that: (1) EPA may consider only the factors

listed in Section 402(b) when it decides whether to approve a

State’s NPDES program; and (2) only if EPA determines that

a proposed State NPDES program does not meet the

statutory requirements may the Agency disapprove the

program, regardless of the requirements of other Federal

statutes. Furthermore, EPA’s own regulations make it clear

that the ESA has no role in its review of State NPDES

programs submitted for approval. EPA would have avoided

much confusion in this case if it had heeded the statute and

its own regulations.

* Each of the parties to this case has previously filed its consent to

NACWA's filing of this brief, with the exception of the Solicitor

General. NACWA is filing the Solicitor General's consent with this

brief.

ARGUMENT

I. CONGRESS HAS DIRECTLY SPOKEN TO APPROVAL

CRITERIA FOR STATE NPDES PROGRAMS

In the Federal Water Pollution Control Act

Amendments of 1972, which first enacted Section 402,

Congress demanded swift action to improve and protect the

Nation’s waters. Pub. L. No. 92-500, 86 Stat. 816 (1972). It

prescribed a new federal-state relationship to achieve this

objective, and it set forth the ferms on which that relationship

would proceed. EPA’s ultimate conclusion that potential

ESA effects were not germane to its evaluation of the

Arizona NPDES program is consistent with Congress’s

intent embodied in the plain language of Section 402(b), as

well as the structure of the CWA as a whole, and its

legislative history. As this Court has instructed:

If a court, employing traditional tools of statutory

construction, ascertains that Congress had an

intention on the precise question at issue, that

intention is the law and must be given effect.

Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 843 n9

(1984) (“Chevron”). The decision by the court below,

Defenders of Wildlife v. EPA, 420 F.3d 946 (9th Cir. 2005),

forgot this principle.

A. CWA Section 402(8) Limits’ EPA’s

DISCRETION TO DIsaPPROVE STATE NPDES

PROGRAMS

Both the text of the CWA and its legislative history

reflect Congress's determination to restore and maintain the

las

“chemical, physical and biological integrity of the Nation's

Waters” as quickly as possible. 33 U.S.C. § 125l(a). To

that end, it provided for a Federal-State partnership, in which

the States would operate EPA-approved NPDES permit

programs. CWA Section 402(b) instructs the EPA

Administrator to approve each State program submitted,

unless he determines that it is deficient on specific grounds:

The Administrator shall approve each submitted

program unless he determines that adequate

|State] authority does not exist. . ..

33 U.S.C. § 1342(b) (emphasis added). The Act then goes

on to list precise and exclusive criteria that constitute

“adequate authority.” They are limited to nine essential

elements of sufficient permit program powers: the power to

issue revocable permits for five-year terms, id. § 402(b)(1);

to apply effluent limitations and related water quality

requirements in those permits, id.; to enter and inspect

regulated premises, id. § 402(b)(2)(B) ; to give notice of

applicatioas to the public, affected states and _ the

Administrator, id. §§ 402(b)(3), (4), (5); to enforce

compliance and assess penalties for violation, id. §

402(b)(7); and the power to impose pretreatment

requirements on POTWs, id. §§ 402(b)(8), (9). There is no

criterion relating to the power of the State to advance other

cherished Federal policies and programs, such as the

Administrative Procedure Act, 5 U.S.C. § 551, ef seq.:; the

National Environmental Policy Act, 42 U.S.C. § 4331, ef

seq. (“NEPA”); the Coastal Zone Management Act, 16

U.S.C. § 1451 et seg.; the Oil Pollution Act, 33 U.S.C. §

2701 et seq.; or, for that matter, the ESA. While the 1973

ESA was not yet adopted when Section 402(b) was first

enacted, Congress has since amended the CWA no fewer

than nine times, see 33 U.S.C. § 1251 note (2000 & Supp. IV

2004), and it has never seen fit to add any reference to the

<_<

ESA in Section 402(b). As the Fifth Circuit recognized

almost a decade ago:

There is no hint that Congress intended to grant

EPA authority to erect additional hurdles to the

permitting process beyond those expressly noted

in [Section 402(b)].

American Forest & Paper Ass'n v. EPA, 137 F.3d 291, 298

(Sth Cir. 1998). To the contrary, EPA’s addition of

extraneous criteria to those set by Congress would have

threatened the congressional goal of implementation of the

NPDES program without interference.

B. CONGRESS DEMANDED - IMPLEMENTATION

WITHOUT INTERFERENCE

Congress included several provisions in the CWA to

ensure that its “restore and maintain” goals could be achieved

efficiently and swiftly. It set tight timetables for EPA to

issue regulations prescribing effluent limitations and

standards, see, e.g, CWA §§ 304(b), 306, 33 U.S.C. §§

1314(b), 1316, and it provided for prompt and preclusive

judicial review of those regulations in Section 509(b). 33

U.S.C. § 1369(b). As the First Circuit noted in Narragansett

Electric Co. v. EPA; |

The short time frame in § 1369(b) clearly

reflects some effort to protect EPA’s interests in

finality in certain matters .. ..

407 F.3d 1, 5 (1st Cir. 2005).

Congress also contemplated that FPA would complete its

review of state NPDES programs submitted for approval

within 90 days. CWA Section 402(c) requires the EPA

Administrator to suspend the issuance of Federal NPDES

‘Ar

permits within 90 days of the date that a State submits a

complete NPDES program for approval, unless he finds that

the state’s submission does not meet the criteria of Section

402(b). CWA § 402(c), 33 U.S.C. § 1342(c). Without an

EPA decision within that ninety-day review window, Section

402(c) would have left the role of permit issuer vacant. In

the absence of a decision, EPA’s authority would have been

suspended by operation of the statute, and the State’s would

still be inchoate pending approval.”

Similarly, most of the actions taken by EPA pursuant to

its CWA authority were exempt from the requirements of the

NEPA by CWA Section 511(c). 33 U.S.C. § 1371(c). As

the bill’s principal sponsor explained during Senate

consideration of the Conference Report:

The purpose of [the Clean Water Act] is to set

rapidly in motion an effective water pollution

control program. The Act sets tight time limits

within which the Administrator must take a

multitude of actions, each heavily dependent on

the other, that will, in the aggregate, produce a

meaningful, effective, and truly workable

program as quickly as possible. Should the

Administrator find himself confronted with

substantive or procedural requirements

extraneous to this Act, the very program that the

Act seeks to establish would be imperiled.

Congressional Research Service, 1 A Legislative History

of the Water Pollution Control Act Amendments of 1972,

No. 93-1, at 182 (1973) (extended remarks of Sen.

Muskie regarding consideration of the Conference

Report) (emphasis added) [hereinafter 1972 FKWPCA

* EPA's implementing regulations at 40 C_F.R. § 123.1(d) make the

suspension effective only upon its approval of a State program, rather

than within ninety days of the State’s submission.

Legis. Hist.]. Indeed, Congress specifically intended that

EPA’s actions under the CWA would proceed swiftly,

and without interference from other federal programs, in

order to ensure meaningful progress against water

pollution.

C. CONGRESS CHOSE TO GIVE THE STATES THE

PRIMARY ROLE IN THE NPDES PERMIT

PROGRAM

To achieve the goals of the CWA, Congress chose to

give the States primary responsibility for the NPDES

program. The text of CWA Section 101(b) declares the

policy of Congress with respect to the role of the 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... .. It is the

policy of Congress that the States . . . implement

the permit programs under [Section 402].

33 U.S.C. § 1251(b) (emphasis added). The standards

Congress sct for the States to assume that responsibility have

remained largely unchanged for the past 35 years.

It was necessary to enlist the resources of the States to

meet the “tight time limits” to which Sen. Muskie referred,

especially to complete issuance of NPDES permits. These

permits were the key to apply effluent limitations to point

sources, and Congress expected them to be issued for up to

an estimated 300,000 industrial point sources and an untold

number of other discharges by December 31, 1974, a bare 26

months after enatfment. Compare 2 1972 FWPCA Legis.

Hist. at 1257 (statement of Sen. Muskie regarding S. 2770)

with 33 U.S.C. §§ 1342(k) & 1371(b). It gave point sources

a permit grace period until that time, provided they had

a

applied for an NPDES permit. See CWA 402(k), 33 U.S.C. §

1342(k). Congress knew that such a monumental task of

implementation demanded the active participation and

involvement of the States. See, e.g, S. Rep. No. 92-414, at

71 (1971) (regarding S. 2770), reprinted in 1 1972 FWPCA

Legis. Hist. at 1489. (“It is expected that the States will play

a major role in the administration of this program.”); id. at

72, 1490 (“A permit or equivalent program, properly

implemented and fully utilizing the resources of the State and

Federal Government should provide for the most expeditious

water pollution elimination program.”); H.R. Rep. No. 92-

911, at 127 (1972), reprinted in 1 1972 FWPCA Legis. Hist.

at 814 (“The states . . . stressed the need to put the maximum

responsibility for the permit program in the states. . . . [T]he

states ought to have the opportunity to assume the

responsibilities that they have requested.”).

Congress was aware that its preference for state

implementation meant that the panoply of Federal laws,

Executive Orders, and regulations that might apply to

Federal issuance of permits would not apply to the State

programs. Perhaps Congress preferred to give the States the

flexibility, within prescribed| bounds, to experiment, to

innovate, to pursue the diversity that is the hallmark of our

federal system. To that end, for instonce, it specifically

preserved the authority of the states to adopt and enforce

standards and requirements more stringent than required

under the Federal Act. See CWA § 510, 33 U.S.C. § 1370;

see also CWA 8§§ 401(a), (d), 33 U.S.C. § 1341(a), (d)

(providing a means for states to impose “any other

appropriate requirement of State law” as conditions in

federal permits and licenses). See PUD No. | of Jefferson

County v. Washington Dep't J Ecology, 511 U.S. 700, 711

(1994). And at no point has it sought to encumber —- or to

allow EPA to encumber — the Section 402(b) approval

process with any concerns extraneous to the CWA.

The flexibility to forge creative approaches has also

fostered innovative local programs to protect endangered

species. For instance, the Sonoran Desert Conservation Plan

— a joint effort of Pima County, Arizona, the U.S. Fish and

Wildlife Service, and the State of Arizona — is one of the

nation's most comprehensive conservation and urban

planning efforts. It provides short-term actions and long-

term strategies to protect endangered species and their

habitats in this rapidly growing portion of the State. As part

of this effort, Pima County voters approved a $174.3 million

bond issue to acquire and protect critical habitats, and

roughly 77,000 acres have been placed in_ protective

reserves.” Similarly, the King County, Washington

Wastewater Treatment Division and the San Francisco

Public Utilities Commission have begun their own Habitat

Conservation Planning studies and processes.’ In Florida,

Collier County also recently initiated a Habitat Conservation

Plan that manages growth to protect endangered species,

especially the Red-Cockaded Woodpecker, and Broward

County sponsors the NatureScape Broward program to

encourage native drought-tolerant landscape designs that

conserve water, protect water quality, and create and

preserve wildlife habitat.° These programs illustrate steps

local government are taking as part of their commitments to

environmental stewardship.

* See generally Pima County Board of Supervisors, Pima County

Multi -Species Conservation Plan (2006); See Pima County Board of

Supervisors, Sonoran Desert Conservation Plan Update (2006).

* See King County Wastewater Treatment Division, //abitat

Conservation Plan, at hitp://dar.metrokc.gov/wtd/hep/index htm (Aug.

23, 2006); San Francisco Public Utilities Commission, Res. No. 00-0229.

* See Collier County, Florida, Res. Nos. 2005-174 & 2006-41; Broward

County, Florida, NatureScape Broward - Between Sawgrass and

Seagrass, at http: www. broward. org naturescape: (last visited Feb. 19,

2007).

Il. BotH NPDES AND ESA REGULATIONS PRECLUDED

EPA FROM CONSIDERING THE ESA

«

A. EPA’s NPDES RULES PREVENT THE AGENCY

FROM INJECTING ESA CONCERNS INTO CWA

SECTION 402(B) APPROVALS

EPA’s regulations regarding the required content of

state NPDES programs allow the Agency to consider only

the criteria contained in CWA Section 402(b) when

evaluating requests to approve such programs. Compare 33

U.S.C. § 1342(b) with 40 C.F.R. § 122.49 & 40 C.F.R. §

123.25. It is a fundamental rule of administrative law that an

agency must abide by its own regulations. See Fort Stewart

Schools v. FLRA, 495 U.S. 641, 654 (1990); accord, United

States v. Nixon, 418 U.S. 683, 696 (1974) (stating so long as

a regulation remains in force, the Executive Branch is bound

by it), The Second Circuit has recently invoked this

principle in reviewing another aspect of —EPA’s NPDES

program. See RiverKeeper, Inc. v. EPA, No. 04-6692-

(ag)(L), slip op. at 55 (2d Cir. Jan. 25, 2007), available at

2007 WL. 184658 (2d Cir. 2007) (“It is axiomatic that an

administrative agency is bound by its own regulations”)

(internal citation omitted). EPA would have been wise to

have heeded that axiom here. Because it did not, a refresher

on those regulations is in order.

EPA’s interim NPDES permit program under Section

402(a), 33 U.S.C. § 1342(a). is governed by its regulations at

40 C.F.R. Part 122. Other federal laws that may be

applicable to permit-issuance decisions by EPA as a federal

10

agency are listed in Section 122.49. These include laws

relating to protection of scenic rivers, historical values,

endangered species, and the coastal zone; to consultation

with state wildlife resource agencies; and in certain instances

to broad consideration of enyironmental impacts. See id. It

is here in Section 122.49 that EPA’s regulations make the

ESA specifically applicable to EPA decisions on permits. /d.

§ 122.49(c).

EPA regulations at 40 C.F.R. Part 123 in turn set forth

the requirements State programs must meet to obtain

approval. As EPA explains there:

This part specifies the procedures EPA will

follow in approving, revising and withdrawing

State programs and the requirements State

programs must meet to be approved by the

Administrator under sections 318 [aquaculture],

402, and 405(a) [sludge disposal] (National

Pollutant Discharge Elimination System—

NPDES) of the CWA.

40 C.F.R. § 123.1(a). EPA then commits itself to approve

those State programs that meet the requirements of Part 123:

The Administrator will approve State programs

which conform to the applicable requirements of

this part.

Id. § 123.1(c). The rule then specifies the applicable

requirements, in pertinent part, by incorporating selected

portions of those applicable to EPA’s own permit program,

as set forth in various sections of Part 122. When EPA then

sets forth more specificatfy in 40 C.F.R. § 123.25(a) the

catalogue of mandatory program elements that States must

incorporate to gain approval. it omits entirely any reference

to Section 122.49 or the Endangered Species Act. See 40

1

C.F.R. § 123.25(a). This omission is consistent with the

statute.

In addition, a comparison of the text of 40 C.F.R. §

122.49 as originally proposed, versus its final form, evinces

EPA’s recognition that the requirements of other federal

environmental statutes are not appropriate grounds for

NPDES permit requirements under the CWA. As proposed,

Section 122.49 would have required all NPDES permits to

reflect applicable requirements from other federal

environmental laws. See 43 Fed. Reg. 37,078, 37,102 (Aug.

21, 1978). The final version of this provision, however,

deleted the requirement for NPDES permits to include such

obligations. See 40 C.F.R. § 122.49. Instead, even where

EPA is the permit agency, Section 122.49 stands only as a

reminder of the other Federal statutes that may be

independently applicable to the same activity being

permitted.

The NPDES rule’s omission of the ESA from State

program requirements is consistent with a joint discussion by

EPA, FWS, and NMFS of the Fifth Circuit’s opinion in

American Forest & Paper Ass'n v. EPA. \n the preamble to

their final 2001 Memorandum of Agreement (the “MOA”),

those agencies agreed that the MOA _ would not

impermissibly interpose ESA requirements into EPA’s CWA

analyses because EPA’s consultation with FWS and NMFS

“simply ensures that EPA has the full benefit of the Services’

views on potential impacts to Federally listed species . . . in

determining whether CWA requirements are met.” 66 Fed.

Reg. 11,202, 11,206 (Feb. 22, 2001) (emphasis added). And

it is the CWA requirements, not those of the ESA, that

govern EPA’s decision under its own binding NPDES

regulations.

Limiting EPA’s analysis of State NPDES programs

submitted for approval to the four corners of CWA Section

}?

—

402(b) and its implementing regulations provides the Agency

with definite rules of decision to use while implementing the

Act. Perhaps more importantly, faithful adherence to the

statute and EPA’s implementing regulations provides States

seeking to operate their own NPDES program with certainty

as to the requirements for such a program.

B. ESA REGULATIONS INSTRUCTED EPA Not To

CONSIDER THE ESA

EPA would also have been well-advised to follow the

ESA regulations reflecting the interpretation of the ESA by

the agencies charged with its implementation’ As explained

in the EPA Petition and that of the National Association of

Home Builders, the regulations promulgated by the agencies

charged with administering the ESA provide that:

Section 7 [of the ESA] and the requirements of

this part apply to all actions in which there is

discretionary Federal involvement or control.

50 C.F.R. § 402.03 (emphasis added); EPA Pet. For Cert. at

18; National Association of Home Builders Pet. for Cert. at

20-21. Thus, where a Federal agency has no discretion

regarding a particular action, FWS and NMFS _ have

concluded that Section 7 and the related regulations do not

apply. As the EPA Petition points out, any ESA

consequence of Arizona’s assumption of NPDES authority

was the effect of congressional mandate, not of Agency

action. EPA Pet. for Cert. at 17. Under the ESA regulation.

any such effect was not “caused” by EPA’s approval. /d.;

see 50 C.F.R. § 402.02. EPA had no choice but to approve.

Because FWS and NMEFS’s interpretation is a permissible

reading of ESA Section 7(a), 16 U.S.C. § 1536(a), it is

entitled to Chevron deference. See 467 U.S. at 842-43.

CONCLUSION

For the foregoing reasons, NACWA urges the Court

to vacate the decision of the United States Court of Appeals

for the Ninth Circuit with respect to the necessity for EPA to

consider ESA effects in CWA § 402(b) decisions.

Respectfully submitted,

ALEXANDRA D. DUNN WILLIAM A. ANDERSON, ‘a

General Counsel WILLIAMS MULLEN, P.C.

National Association of 1666 K Street, N.W.

Clean Water Agencies _ Washington, D.C. 20006

1816 Jefferson Place, NW (202)833-9200

Washington, D.C. 20036 Fax: (202)293-5939

(202) 533-1803

14

STATUTORY APPENDIX

CWA Section 402(c), 33 U.S.C. § 1342(c)

(2000 & Supp. IV 2004).

(c) Suspension of Federal program upon submission of

State program; withdrawal of approval of State

program; return of State program to Administrator

(1) N~ later than ninety days after the date on which

a State has submitted a program (or revision thereof)

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

shall suspend the issuance of permits under subsection (a) of

this section as to those discharges subject to such program

unless he determines that the State permit program does not

meet the requirements of subsection (b) of this section or

does not conform to the guidelines issued under section

1314(i)(2) of this title. If the Administrator so determines,

he shall notify the State of any revisions or modifications

necessary to conform to such requirements or

guidelines.

(2) Any State permit program under this section shall

at all times be in accordance with this section and guidelines

promulgated pursuant to section 1314(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 tor 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 sectian only if an entire phased

component of the permit program being administered by the

State at the time is returned or withdrawn.