ELR Citation: ELR 20172
No(s). s. 03-71439, -72894 (9th Cir. Aug 22, 2005)

The court holds that when deciding whether to transfer water pollution permitting authority to state governments under the Clean Water Act (CWA), the U.S. Environmental Protection Agency (EPA) must consider impacts on endangered species and their habitat under the Endangered Species Act (ESA). The case arose after Arizona sought to run the pollution permitting program within its jurisdiction. In granting Arizona's transfer application, EPA relied on a U.S. Fish and Wildlife Service biological opinion premised on the proposition that EPA lacked the authority to consider jeopardy to listed species. However, approving Arizona's transfer application was an agency action "authorized" by EPA that triggered ESA §7(a)(2)'s consultation requirement and its mandate that agencies not affirmatively take actions that are likely to jeopardize listed species. EPA may have complied with its obligations under the CWA, but compliance with a complementary statute cannot relieve EPA of its independent obligations under ESA §7(a)(2). ESA §7(a)(2) imposes a duty on EPA to "insure" that its transfer decision is not likely to jeopardize protected species or adversely modify their habitat, and this duty exists alongside the CWA provisions. In addition, EPA's transfer decision will cause whatever harm may flow from the loss of §7 consultation on the many projects subject to a water pollution permit, and that harm constitutes an indirect effect of the transfer. The biological opinion, which ignored this effect while recognizing that §7 consultations concerning pollution permits have saved species' critical habitat in the past, was therefore deficient, and EPA erred by relying on this fatally deficient biological opinion. EPA's approval of Arizona's pollution permitting application was therefore vacated.