National Association of Home Builders v. Defenders of Wildlife 551 U.S. 664, 127 S.Ct. 2518 (2007) Under the Clean Water Act (CWA), EPA administers pollution permitting in a State unless that State proposes to administer the program themselves. Arizona applied to take over their pollution permitting program. EPA looked at the nine criteria that a State must meet in order to take over their program according to the CWA, and found that Arizona met all nine criteria. However, EPA realized that giving the program to Arizona might violate Endangered Species Act §7(a)(2). §7(a)(2) prohibits Federal agencies from taking actions that might jeopardize endangered species. Since §7(a)(2) doesn't apply to decisions made by State agencies, the transfer could lead to a loss of consideration for endangered species in permitting decisions. Although §9 still applies. EPA consulted with the Fish and Wildlife Service (FWS), who determined that the ESA was inapplicable because EPA had no authority to consider any additional factors beyond the nine CWA criteria. EPA approved the transfer. Defenders of Wildlife sued to block the transfer. The Defenders argued that ESA imposed an authoritative, independent requirement on the EPA's decision to approve the transfer. EPA argued that ESA was not an independent source of authority, but that ESA only imposes requirements on discretionary decisions. Since the decision was non-discretionary under the CWA, the ESA should not apply. The environmental groups brought this suit because they figured that Arizona with its rapid development and inherent water use issues would be less sympathetic to endangered species issues than the Federal government would be. The Appellate Court found for the Defenders and blocked the transfer. EPA appealed. The Appellate Court found that EPA's decision was inconsistent with previous transfers of permitting authority. The US Supreme Court reversed and permitted the transfer. The US Supreme Court found that ESA §7(a)(2) only applies to discretionary actions. That is similar reasoning to how the courts interpreted National Environmental Policy Act (NEPA) to not apply to mandatory actions. The Court found that §7(a)(2)'s provisions for protecting endangered species do not establish a "tenth criterion" for the EPA to consider before transferring permitting authority. The courts have traditional said that Statutes should not be interpreted to repeal earlier Statutes unless there is explicit language to that effect (aka repeal by implication). The Court noted that under the decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council (467 U.S. 837 (1984)), the courts are to give a wide latitude to Administrative Agencies in how they interpret Statutes. In a dissent it was argued that ESA's requirements properly applied to all agency decisions both discretionary and non-discretionary. There is nothing in the Statute that says it should only be applied to discretionary actions. Even if it did, EPA's interpretation was not entitled to deference because "the Departments of the Interior and Commerce, not EPA, are charged with administering the ESA." Basically, since EPA wasn't responsible for interpreting ESA, their interpretation shouldn't hold much weight. The dissent also argued that you could comply with both Statutes, and you could delegate authority with a memorandum of understanding that Arizona must comply with the ESA. You don't need to weaken the ESA. They'd already done that with other States (like Maine).