To: Members & Subscribers From: National Office Date: April 9, 1998 Subject: APPEALS COURT LIMITS EPA'S AUTHORITY TO IMPOSE ESA REQUIREMENTS IN STATE DELEGATION RULES Reference: Legal Alert 98-2 The Firth Circuit Court of Appeals last week ruled that the Environmental Protection Agency's (EPA) inclusion of endangered species issues as a condition of approving delegation to a state to issue discharge permits oversteps the Agency's authority under the Clean Water Act (CWA). A copy of the ruling in the case of American Forest and Paper Association vs. U.S. Environmental Protection Agency is attached.
The American Forest and Paper Association (AFPA) filed suit against EPA in early 1997 challenging the Agency's authority to impose Endangered Species Act (ESA) requirements on a state's permitting program. The suit, filed in the Fifth Circuit Court of Appeals in Louisiana, specifically challenged EPA's requirement that the State of Louisiana, as a condition of winning authority to issues National Pollutant Discharge Elimination System (NPDES) permits, must adopt a process which would allow the Fish & Wildlife Services (FWS) and the National Marine Fisheries Service (NMFS) to raise objections to discharge permits that may impact endangered species. If concerns raised by FWS and NMFS are not addressed by Louisiana, the delegation rule states that EPA will exercise its authority to veto the permit in question. AFPA successfully argued that EPA's inclusion of the ESA clause in the delegation rule to Louisiana overstepped the Agency's authority under the CWA. The ESA clause was included in the rules to address concerns raised by environmentalists. When EPA was administering the NPDES program in Louisiana, the Agency chose to consult with FWS and NMFS regarding endangered species prior to issuing permits.
Under the Clean Water Act, states must satisfy nine criteria (CWA ยง402 (b)) to gain delegation of the NPDES program. The CWA statute specifically states that the EPA Administrator "shall approve each submitted program" unless it is determined that the program does not satisfy the nine listed criteria. Consideration of endangered species issues is not among the nine criteria. In the court's opinion, Judge Jerry E. Smith wrote, "There is no hint that Congress intended to grant EPA authority to erect additional hurdles to the permitting process beyond those expressly noted. EPA's discretion lies not in modifying the list of enumerated criteria, but in ensuring that those criteria are met." The court added that even if EPA were required under the ESA to consult with FWS and NMFS before permits are issues, the agency lacks the authority to change the Clean Water Act by adding new delegation requirements. The ruling does not address EPA's right to veto permits issued by the state because of endangered species considerations.
The decision could greatly impact EPA's ongoing negotiations with FWS about how to address permits that raise endangered species concerns. The two agencies are in the midst of developing a Memorandum of Agreement (MOA) over what federal procedures would be used to review those permits. It has been reported that EPA is considering publication of the MOA in the Federal Register for public review and comment, but no schedule as been announced for completion of the MOA. The AMSA National Office will provide additional information as it becomes available.
ATTACHMENT: Ruling in American Forest and Paper Association vs. U.S. Environmental Protection Agency (Please contact AMSA's National Office at 202/833-2672 for a copy of this document)