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National Association of Home Builders v. Defenders of Wildlife
National Association of Home Builders, et al. v. Defenders of Wildlife, et al.
EPA v. Defenders of Wildlife (No. 06-549)
On December 5, 2002, the U.S. Environmental Protection Agency ("EPA") approved
the State of Arizona's application to administer the National Pollutant Discharge
Elimination System ("NPDES") program under Section 402(b) of the Clean Water Act, 33 U.S.C. section 1342(b). Section 402(b) states that EPA "shall approve each
submitted program" unless EPA "determines that adequate authority does not exist"
for the state to administer the program in compliance with nine specified criteria.
There was no dispute that Arizona's program satisfied those criteria. Instead,
environmental groups contended that EPA violated Section 7(a)(2) of the Endangered Species Act, 16 U.S.C. section 1536(a)(2), because EPA did not sufficiently
analyze the effects of the loss of, nor require a sufficient substitute for, consultation
with the U.S. Fish and Wildlife Service. A majority of the Ninth Circuit panel agreed
and vacated EPA's approval of Arizona's program. The questions presented for
- Can a court append additional criteria to Section 402(b) of the Clean Water Act
that require state NPDES programs to include protections for endangered species?
- Does Section 7(a)(2) of the Endangered Species Act constitute 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
- Did the Ninth Circuit incorrectly apply the holding of Department of Transp. v.
Public Citizen, 541 U.S. 752 (2004), in concluding that EPA's approval of Arizona's
NPDES permitting program was the legally relevant cause of impacts to
endangered species resulting from future private land use activities?
- Whether the Court of Appeals correctly held that the EPA's decision to transfer pollution permitting authority to Arizona under the Clean Water Act, see 33 U.S.C. section 1342(b), was arbitrary and capricious because it was based on inconsistent interpretations of section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. section 1536(a)(2); and, if so, whether the Court of Appeals should have remanded to the EPA for further proceedings without ruling on the interpretation of section 7(a)(2).
Counsel of Record
Norman D. James
Fennemore Craig, P.C.
Paula S. Bickett
Chief Counsel for Civil Appeals
Office of Attorney General
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