## Facts

- The Clean Water Act (CWA) authorizes EPA to approve state-administered discharge-permit programs (NPDES) if statutory criteria are met.
- Louisiana sought and obtained EPA approval to administer its own permitting program, the Louisiana Pollutant Discharge Elimination System (LPDES).
- In approving Louisiana’s program, EPA adopted a final rule requiring Louisiana to consult with the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) before issuing LPDES permits.
- EPA further announced it would veto any Louisiana-issued permit if FWS or NMFS objected on endangered-species grounds and Louisiana refused to modify the permit.
- The American Forest and Paper Association (AF&PA), whose members held or sought LPDES permits, petitioned for review, arguing EPA lacked CWA authority to impose these endangered-species conditions and could not use the Endangered Species Act (ESA) to expand its CWA approval power.

## Issues

1. Whether the CWA authorizes EPA to condition approval of a state NPDES program on a requirement that the state consult with FWS/NMFS on individual permits and accept a federally precommitted veto triggered by those agencies’ objections.
2. Whether ESA § 7(a)(2) permits EPA to impose ESA-driven consultation and veto conditions as part of CWA state-program approval.

## Decision

- The Fifth Circuit granted the petition for review.
- The court held EPA lacked statutory authority under the CWA to impose the consultation requirement and the announced veto policy tied to FWS/NMFS objections.
- The court vacated and remanded the portion of the final rule imposing those endangered-species conditions on Louisiana’s LPDES program.
- The court rejected EPA’s reliance on generalized “guidelines” authority to add substantive approval conditions beyond those enumerated in CWA § 402(b).
- The court concluded ESA § 7(a)(2) did not expand EPA’s CWA authority to impose extra-statutory conditions on a state permitting program.

## Legal Principles

- CWA § 402(b)’s enumerated criteria constrain EPA’s discretion in deciding whether to approve a state NPDES program; EPA may not add substantive prerequisites not listed in the statute.
- General regulatory or “guidelines” provisions cannot override or enlarge specific statutory limits set by Congress in an enumerated approval scheme.
- EPA’s CWA oversight tools must be exercised within statutory bounds and cannot be converted into a blanket, precommitted veto regime based on non-CWA criteria.
- ESA § 7(a)(2) obligates federal agencies to avoid jeopardy to listed species when taking federal action, but it does not confer new regulatory authority beyond an agency’s existing statutory powers.

## Conclusion

The Fifth Circuit invalidated EPA’s attempt to condition Louisiana’s assumption of NPDES permitting authority on mandatory endangered-species consultations and an automatic federal veto tied to wildlife-agency objections, holding that the CWA’s enumerated approval criteria control and ESA § 7 does not enlarge EPA’s CWA authority.


Am. Forest & Paper Ass’n v. EPA, 137 F.3d 291 (5th Cir. 1998)