ELR Citation: ELR 21122
No(s). 96-60874 (5th Cir. Mar 30, 1998)

The court holds that the U.S. Environmental Protection Agency (EPA) lacks the statutory authority under the Federal Water Pollution Control Act (FWPCA) and the Endangered Species Act (ESA) to impose a consultation requirement and retain an oversight veto over Louisiana's implementation of its state pollutant discharge elimination system.

The court first holds that the association challenging EPA's actions is not precluded from raising its objections even though it did not participate in the earlier public comment proceedings. The FWPCA allows any interested person that promptly files an objection to seek judicial review. Moreover, estopping the association would be especially unfair because EPA modified its rule by adding the consultation requirement after the initial proposal. The court next holds that the association has standing to sue. The association's members include permit holders in Louisiana, and their imminent need to comply, coupled with EPA's frank announcement of its intentions to veto permits under certain circumstances, establishes that the association's injury is not speculative. In addition, EPA's redressability challenge is meritless because Louisiana's voluntary commitment to cooperate with federal agencies does not withstand a court decision striking down the rule's consultation requirement. The court also holds that the case is ripe because deferring review would impose an immediate, significant burden on the association and the case is a pure question of law.

The court next holds that FWPCA §402(b) does not authorize EPA to deny a state's proposed permit on a criterion—the protection of endangered species—that is not enumerated in §402(b). The non-discretionary language of this subsection provides that EPA shall approve submitted programs unless they fail to meet one of the nine listed requirements. Additionally, FWPCA §402(b)(6) grants EPA veto power over proposed permits that would substantially impair anchorage and navigation. Congress could have, but did not, provide an analogous veto power to protect endangered species. Further, nothing in FWPCA §304(i) undermines this conclusion because this subsection simply directs EPA to issue regulations governing the approval process for state programs. Congress did not intend to grant EPA authority to erect additional hurdles to the permitting process beyond those expressed in FWPCA §402(b). Neither section even mentions endangered species or the ESA.

Last, the court holds that EPA lacks the power to add additional criteria to FWPCA §402(b). Nothing in the ESA grants the agency the authority to do so. ESA §7 merely requires EPA to consult with the U.S. Fish and Wildlife Service or the National Marine Fisheries Service before undertaking agency action, but it confers no substantive powers. And ESA §7(a)(2) does not expand the powers conferred on an agency by its enabling act, but rather directs the agencies to utilize their existing powers to protect endangered species. EPA cannot invoke the ESA as a means of creating and imposing requirements that are not authorized by the FWPCA.

Counsel for Plaintiff
Russell S. Frye
Chadbourne & Parke
1101 Vermont Ave. NW, Washington DC 20005
(202) 974-5600

Counsel for Defendant
Steven E. Rusak
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000/514-9275

Before Jones and Fitzwater,¹ JJ.