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SUPREME COURT UPHELD EPA’S
DELEGATION OF PRIMARY AUTHORITY
TO ARIZONA
TO ENFORCE NPDES PERMIT PROGRAM
National Association of Home Builders v
Defenders of Wildlife. On June 25, 2007, the
United States Supreme Court, in a 5 to 4
decision, upheld the Environmental
Protection Agency’s (EPA) delegation of
primary authority to the State of Arizona to
enforce the National Pollution Discharge
Elimination System (NPDES) permit program
under the Clean Water Act. The case raised
the question whether Section 7(a)(2) of the
Endangered Species Act (ESA) (which requires
consultation to ensure federal agency action
will not jeopardize the continued existence
of threatened or endangered species)
effectively was a tenth requirement that
must be satisfied before the NPDES could be
delegated to a State. The Ninth Circuit had
held that Section 7(a)(2) did apply and that
EPA failed to properly evaluate whether
delegation to the State of Arizona would
jeopardize threatened or endangered species.
As a result, the delegation to Arizona had
been held to be invalid and all actions
taken by the Arizona Department of
Environmental Quality (ADEQ) under Arizona’s
Pollution Discharge Elimination System were
called into question.
The Supreme Court reversed the Ninth
Circuit. The Court held that Congress did
not intend to add a tenth requirement when
it passed the ESA. Further, Section 7(a)(2)
only applies to discretionary actions and
Congress made the delegation mandatory if
the nine criteria listed in Section 402(b)
are satisfied. As a result of this decision,
ADEQ remains primarily responsible for
issuing PDES permits (regulating discharges
into waters of the United States, wetlands
and tributaries thereto). EPA retains
authority to review and object to actions
proposed by ADEQ.
THE FOREGOING IS MERELY A PARTIAL
SUMMARY OF THE CASE
AND IS NOT INTENDED TO BE RELIED UPON AS A LEGAL
OPINION.
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