551 U.S. 644
SYNOPSIS: Respondent environmental organization brought an action challenging the decision of petitioner Environmental Protection Agency (EPA) which approved a transfer to a state of permitting authority under the National Pollution Discharge Elimination System. Upon the grant of a writ of certiorari, the EPA appealed the judgment of the U.S. Court of Appeals for the Ninth Circuit which held that the transfer approval was arbitrary and capricious.
FACTS: The EPA contended that the state satisfied all of the statutory criteria for transfer of permitting authority, and thus the EPA was required to approve the transfer under the Clean Water Act (CWA), 33 U.S.C.S. § 1251 et seq. The organization argued that the EPA was also required to comply with the Endangered Species Act (ESA), 16 U.S.C.S. § 1531 et seq., and insure that the transfer would not jeopardize endangered or threatened species.
The U.S. Supreme Court held that the no-jeopardy duty under the ESA only applied to discretionary actions and thus it did not apply to the permitting transfer approval which was mandatory under the CWA once the specified triggering criteria were met.
Although the duties under the CWA and the ESA were both couched in mandatory terms, 50 C.F.R. § 402.03 appropriately construed the ESA to require the no-jeopardy assessment only if the agency action was discretionary, and there was no basis for an implicit repeal of the permitting transfer approval requirement by imposing the additional requirement of a no-jeopardy duty to obtain such approval.
OUTCOME: The judgment that the EPA's permitting transfer approval was arbitrary and capricious was reversed, and the case was remanded for further proceedings.
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