Arizona Delegation Authority Taken Away

In Defenders of Wildlife v. United States Environmental Protection Agency, 420 F.3d 946 (9th Cir. 2005), environmental groups filed suit challenging the Environmental Protection Agency's (EPA) decision to transfer Clean Water Act (CWA) pollution permitting program for Arizona to that State.

Pursuant to section 402(b) of the CWA, the State of Arizona submitted its permitting program to EPA to assume CWA permitting responsibility in its jurisdiction.  In December 2002, after determining that Arizona met all nine of the section 402(b) criteria, the EPA approved Arizona’s program.  While reviewing Arizona’s program, the EPA consulted with the FWS concerning the impacts of allowing Arizona to issue CWA permits in the State.  The outcome of the consultation was a biological opinion that allowed the EPA to approve Arizona’s program without any additional protections for endangered species.

Defenders of Wildlife claimed that the EPA violated the Administrative Procedures Act (APA) because its decision to approve Arizona’s program was “arbitrary and capricious.”

In a 2-1 decision, a panel of the Ninth Circuit agreed with the environmentalists. The court concluded that EPA’s position was that it must consult pursuant to section 7 of the ESA, but that because it could only review Arizona’s program based on the nine criteria in section 402(b) of the CWA, it could not take into account the impact of its approval on endangered species. The court found that both cannot be true, and therefore the EPA’s approval was not the result of reasoned decision making, which is a violation of the APA.

Furthermore, the Court struggled over the remedy.  Generally, in these types of cases, the court remands the case back to the offending agency and orders it to take actions that would comply with the law.  However, the Ninth Circuit, in the name of protecting species, vacated the EPA’s approval of Arizona’s permitting program.  The result apparently is that those who need CWA permits in Arizona must now obtain those permits from the EPA.

The dissent explained that under the ESA, agencies need only consult over “discretionary” activities.  Judge Thompson reasoned that because section 402(b) requires the EPA to approve a state program if it meets the nine criteria, EPA’s approval was “nondiscretionary.”  Therefore, EPA did not have to consult with the FWS.    

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