SCOTUS: Federal Transfer of Clean Water Act Authority to States Not Subject to Endangered Species Act

In National Assn. of Home builders v. Defenders of Wildlife, 551 U. S. ____ (2007), the U.S. Supreme Court upheld the Environmental Project Agency's ("EPA") interpretation of the Endangered Species Act ("ESA") § 7(a)(2) as applying only to “actions in which there is discretionary Federal involvement or control.” 50 CFR §402.03. Since the transfer of National Pollution Discharge Elimination System ("NPDES") permitting authority is not discretionary, but rather is mandated once a State has met the criteria set forth in § 402(b) of the Clean Water Act ("CWA"), a transfer of NPDES permitting authority does not trigger ESA § 7(a)(2)’s consultation and no-jeopardy requirements.

The court based its holding on primarily two points (1) the rule against implied statutory repeals, and (2) ESA § 7(a)(2)’s no-jeopardy duty covers only discretionary agency actions. For its first line of inquiry, the court summarized the law as follows:

While a later enacted statute (such as the ESA) can sometimes operate to amend or even repeal an earlier statutory provision (such as the CWA), “repeals by implication are not favored” and will not be presumed unless the “intention of the legislature to repeal [is] clear and manifest.” Watt v. Alaska, 451 U. S. 259, 267 (1981) (internal quotation marks omitted). We will not infer a statutory repeal “unless the later statute ‘ “expressly contradict[s] the original act” ’ or unless such a construction ‘ “is absolutely necessary . . . in order that [the] words [of the later statute] shall have any meaning at all.” ’ ” Traynor v. Turnage, 485 U. S. 535, 548 (1988) (quoting Radzanower v. Touche Ross & Co., 426 U. S. 148, 153 (1976) , in turn quoting T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 98 (2d ed. 1874)); see also Branch v. Smith, 538 U. S. 254, 273 (2003) (“An implied repeal will only be found where provisions in two statutes are in ‘irreconcilable conflict,’ or where the latter Act covers the whole subject of the earlier one and ‘is clearly intended as a substitute’ ”); Posadas v. National City Bank, 296 U. S. 497, 503 (1936) (“[T]he intention of the legislature to repeal must be clear and manifest”). Outside these limited circumstances, “a statute dealing with a narrow, precise, and specific subject is not submerged by a later enacted statute covering a more generalized spectrum.” Radzanower, supra, at 153.

Thus, since CWA § 402(b) affirmatively mandates that the transfer of NPDES permitting authority “shall” be approved if the specified criteria are met, adding an additional criterion under ESA § 7(a)(2) alters CWA § 402(b)’s statutory command and is tantamount to a implied repeal.

For its second line of inquiry, the court applied CFR § 403.03, which states that ESA § 7(a)(2) applies to “all actions in which there is discretionary Federal involvement or control.” 51 Fed. Reg. 19958 (1986). The court held that this rule is resonable in asmuchas it means: "§ 7(a)(2)’s no-jeopardy duty covers only discretionary agency actions and does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred."

This case does not have a direct effect on Hawaii since the EPA delegated the administration of the NPDES permit program to the Hawaii Department of Health in November of 1974.