Cwa and Esa: Nine Is a Party, Ten Is a Crowd National Association of Home Builders V. Defenders of Wildlife, 127 S. Ct. 2518 (2007)

I. Introduction In National Association of Home Builders v. Defenders of Wildlife1 United States Supreme Court ruled on compatibility of two statutory sections, section 402(b) of Clean Water Act (CWA)2 and section 7(a)(2) of Endangered Species Act (ESA).3 This case was appealed from United States Court of Appeals for Ninth Circuit following a suit by Defenders of Wildlife against Environmental Protection Agency (EPA). The Defenders of Wildlife sought a review of EPA's decision to transfer pollution permitting authority to Arizona.4 The Supreme Court granted certiorari to determine whether an outside regulation can serve to harmonize two statutes that are seemingly incompatible. To provide a thorough analysis of issues involved, an overview of applicable statutes is provided followed by a summary of facts of case. II. OVERVIEW OF STATUTORY PROVISIONS - DUELING STATUTES The CWA established National Pollution Discharge Elimination System (NPDES)5 which gives EPA authority to issue pollution permits. The statute also provides opportunity for states to take over administration of federal pollution permitting programs regarding waters within their borders.6 For this transfer of power to occur, governor of state must submit a full and complete description of program it proposes to establish and administer.7 The statute provides that the Administrator submitted program unless he determines that adequate authority does exist.8 States demonstrate adequate authority by showing ability: 1. to issue fixed-term permits that apply and ensure compliance with CWA's substantive requirements and which are revocable for cause; 2. to inspect, monitor, and enter facilities and to require reports to extent required by CWA; 3. to provide for public notice and public hearings; 4. to ensure that EPA receives notice of permit application; 5. to ensure that any other State whose waters may be affected by issuance of a permit may submit written recommendations and that written reasons be provided if such recommendations are accepted; 6. to ensure that no permit is issued if Army Corps of Engineers concludes that it would substantially impair anchoring and navigation of navigable waters; 7. to abate violations of permits or permit program, including through civil and criminal penalties; 8. to ensure that any permit for a discharge from a publicly owned treatment works includes conditions requiring identification of type and volume of certain pollutants; and 9. to ensure that any industrial user of any publicly owned treatment works will comply with certain of CWA's substantive provisions.9 One year into existence of CWA, Congress passed ESA.10 Section 7(a)(2) of ESA provides that each Federal agency shall, in consultation with and with assistance of Secretary, that any action authorized, funded, or carried out by such agency is likely to continued existence of any endangered species or threatened species.11 In practice, United States Fish and Wildlife Service (FWS), as part of United States Department of Interior, consults with EPA regarding NPDES permits where species and/or critical habitat are likely to be adversely affected.12 Looking at CWA and ESA statutory sections together, an appearance of inconsistency emerges. Section 402(b) of CWA provides that EPA shall approve a transfer program upon a state meeting nine listed requirements.13 This language implies mandatory action with only possibility of discretion being EPA's determination that a state meets THe nine requirements. In contrast, section 7(a)(2) of ESA mandates that Federal agencies insure their actions do not jeopardize endangered or threatened species through practice of consultation with appropriate agency. …