LAWSUITS FILED OR PENDING

August 2007

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U.S. Supreme Court Holds Section 7(a)(2) of the Endangered Species Act Inapplicable to EPA Transfer of NPDES Permitting Authority to Arizona
National Assoc. of Home Builders v. Defenders of Wildlife, ___U.S.___

The U.S. Supreme Court held that the U.S. Environmental Protection Agency (EPA) was not subject to § 7(a)(2) of the Endangered Species Act of 1973 (ESA), 16 U.S.C. § 1536(a)(2), when transferring permitting authority to the State of Arizona under the National Pollution Discharge Elimination System (NPDES) because transfer of NPDES permitting authority is a mandatory action once all statutory requirements of § 402(b) of the Clean Water Act (CWA), 33 U.S.C. § 1342 have been met and §7(a)(2) applies only to discretionary agency actions. See 50 C.F.R. § 402.03 (§402.03). In so holding, the Court reversed the Ninth Circuit Court of Appeals’ decision requiring the EPA to consider an additional requirement that transfer of NPDES permitting authority to Arizona would not place any endangered or threatened species in jeopardy under §7(a)(2) before transferring licensing authority.