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association
home
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water
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circuit
clean
water
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circuit
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circuit
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kozinski
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circuit
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odds
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platte
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circuit
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circuit
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procedure
act
see
remand
agency
proceedings
consistent
opinion
respectfully
dissent
appendix
opinion
stevens
state
permit
programs
time
promulgation
guidelines
required
subsection
section
title
governor
state
desiring
administer
permit
program
discharges
navigable
waters
within
jurisdiction
may
submit
administrator
full
complete
description
program
proposes
establish
administer
state
law
interstate
compact
addition
state
shall
submit
statement
attorney
general
attorney
state
water
pollution
control
agencies
independent
legal
counsel
chief
legal
officer
case
interstate
agency
laws
state
interstate
compact
case
may
provide
adequate
authority
carry
described
program
administrator
shall
approve
submitted
program
unless
determines
adequate
authority
exist
issue
permits
apply
insure
compliance
applicable
requirements
sections
title
fixed
terms
exceeding
five
years
terminated
modified
cause
including
limited
following
violation
condition
permit
ii
obtaining
permit
misrepresentation
failure
disclose
fully
relevant
facts
iii
change
condition
requires
either
temporary
permanent
reduction
elimination
permitted
discharge
control
disposal
pollutants
wells
issue
permits
apply
insure
compliance
applicable
requirements
section
title
inspect
monitor
enter
require
reports
least
extent
required
section
title
insure
public
state
waters
may
affected
receive
notice
application
permit
provide
opportunity
public
hearing
ruling
application
insure
administrator
receives
notice
application
including
copy
thereof
permit
insure
state
permitting
state
whose
waters
may
affected
issuance
permit
may
submit
written
recommendations
permitting
state
administrator
respect
permit
application
part
written
recommendations
accepted
permitting
state
permitting
state
notify
affected
state
administrator
writing
failure
accept
recommendations
together
reasons
insure
permit
issued
judgment
secretary
army
acting
chief
engineers
consultation
secretary
department
coast
guard
operating
anchorage
navigation
navigable
waters
substantially
impaired
thereby
abate
violations
permit
permit
program
including
civil
criminal
penalties
ways
means
enforcement
insure
permit
discharge
publicly
owned
treatment
works
includes
conditions
require
identification
terms
character
volume
pollutants
significant
source
introducing
pollutants
subject
pretreatment
standards
section
title
works
program
assure
compliance
pretreatment
standards
source
addition
adequate
notice
permitting
agency
new
introductions
works
pollutants
source
new
source
defined
section
title
source
discharging
pollutants
new
introductions
pollutants
works
source
subject
section
title
discharging
pollutants
substantial
change
volume
character
pollutants
introduced
works
source
introducing
pollutants
works
time
issuance
permit
notice
shall
include
information
quality
quantity
effluent
introduced
treatment
works
anticipated
impact
change
quantity
quality
effluent
discharged
publicly
owned
treatment
works
insure
industrial
user
publicly
owned
treatment
works
comply
sections
title
national
association
home
builders
et
petitioners
defenders
wildlife
et
al
environmental
protection
agency
petitioner
defenders
wildlife
et
al
writs
certiorari
appeals
ninth
circuit
june
justice
breyer
dissenting
join
justice
stevens
dissent
reserving
judgment
whether
endangered
species
act
really
covers
every
possible
agency
action
even
totally
unrelated
agencies
say
discretionary
determination
internal
revenue
service
whether
prosecute
settle
particular
tax
liability
see
time
add
one
additional
consideration
support
dissenting
views
emphasizes
terms
statutory
language
clean
water
act
mandatory
list
exclusive
nine
specified
criteria
satisfied
epa
discretion
deny
transfer
application
ante
emphasis
added
understanding
agency
action
leads
believe
majority
possibly
correct
concluding
structure
precludes
application
epa
discretionary
action
see
ante
stevens
dissenting
grants
discretionary
authority
always
come
implicit
limits
attached
see
jaffe
judicial
control
administrative
action
discretion
power
make
choice
permissible
class
actions
likely
numerous
instances
prior
enactment
statute
might
implicitly
placed
species
preservation
outside
limits
take
one
example
consider
statute
granted
old
federal
power
commission
fpc
authority
grant
certificate
public
convenience
necessity
permit
natural
gas
company
operate
new
pipeline
see
says
certificate
shall
issued
qualified
applicant
therefor
found
applicant
able
willing
properly
acts
perform
service
proposed
proposed
service
required
present
future
public
convenience
necessity
enactment
endangered
species
act
stat
least
uncertain
whether
fpc
withheld
certificate
simply
natural
gas
pipeline
might
threaten
endangered
animal
given
act
language
history
species
preservation
naturally
fall
within
terms
held
endangered
species
act
changed
regulatory
landscape
indicat
ing
beyond
doubt
congress
intended
endangered
species
afforded
highest
priorities
tva
hill
emphasis
added
indeed
endangered
species
act
demonstrated
conscious
decision
congress
give
endangered
species
priority
missions
federal
agencies
given
new
pipeline
potential
effect
upon
habitat
landscape
seems
reasonable
believe
congress
enacted
new
law
fpc
successor
federal
energy
regulatory
commission
act
within
authority
taking
effects
account
take
another
example
food
drug
administration
fda
statute
exclusive
list
criteria
consider
reviewing
applications
approval
new
drug
see
secretary
finds
investigations
include
adequate
tests
methods
reasonably
applicable
show
whether
drug
safe
shall
issue
order
refusing
approve
application
preservation
endangered
species
exclusive
list
criteria
yet
imagine
fda
take
account
grants
denies
drug
approval
effect
manufacture
marketing
new
drug
upon
preservation
destruction
endangered
species
meaningful
difference
provision
us
clean
water
act
statutes
mentioned
purpose
former
preserve
state
natural
environment
purpose
endangered
species
act
shares
shared
purpose
shows
must
apply
clean
water
act
fortiori
footnotes
together
environmental
protection
agency
defenders
wildlife
et
also
certiorari
footnotes
state
must
advise
epa
permit
proposes
issue
epa
may
object
permit
see
also
cfr
state
address
epa
concerns
authority
permit
reverts
epa
state
must
demonstrate
ability
issue
permits
apply
ensure
compliance
cwa
substantive
requirements
revocable
cause
inspect
monitor
enter
facilities
require
reports
extent
required
cwa
provide
public
notice
public
hearings
ensure
epa
receives
notice
permit
application
ensure
state
whose
waters
may
affected
issuance
permit
may
submit
written
recommendations
written
reasons
provided
recommendations
accepted
ensure
permit
issued
army
corps
engineers
concludes
substantially
impair
anchoring
navigation
navigable
waters
abate
violations
permits
permit
program
including
civil
criminal
penalties
ensure
permit
discharge
publicly
owned
treatment
works
includes
conditions
requiring
identification
type
volume
certain
pollutants
ensure
industrial
user
publicly
owned
treatment
works
comply
certain
cwa
substantive
provisions
time
arizona
applied
epa
already
transferred
permitting
authority
local
authorities
several
territories
terms
consultation
requirement
applies
action
authorized
funded
carried
federal
agenc
ies
also
note
agencies
involved
resolved
ambiguity
positions
going
forward
following
issuance
panel
opinion
epa
connection
state
alaska
pending
application
transfer
npdes
permitting
authority
requested
confirmation
fws
nmfs
epa
position
consultation
duties
esa
section
apply
approval
state
application
administer
npdes
program
apparent
hope
obtaining
agencies
views
advance
processing
alaska
application
may
avoid
repetition
confusion
occurred
arizona
permitting
process
app
pet
cert
response
fws
nmfs
confirmed
understanding
need
conduct
section
consultations
proposed
actions
approve
state
npdes
programs
actions
cause
impact
listed
species
constitute
discretionary
federal
agency
actions
section
applies
see
also
nmfs
concur
epa
conclusion
epa
required
engage
section
consultation
applications
approve
state
programs
situations
section
cwa
independent
right
public
comment
regard
consultations
conducted
consultation
process
conclude
case
required
see
fed
reg
nothing
section
authorizes
requires
service
provide
public
involvement
applicant
consultation
process
justice
stevens
dissenting
opinion
attempts
paper
conflict
suggesting
epa
agencies
designated
secretary
interior
reconcile
commands
cwa
esa
generat
ing
alternative
course
action
whereby
transfer
still
take
place
way
honor
mandatory
requirements
post
example
suggests
epa
condition
transfers
permitting
authority
state
acceptance
additional
continuing
oversight
epa
presumably
beyond
oversight
already
contemplated
cwa
statutory
language
post
approach
less
straightforward
rejection
transfer
application
impose
conditions
npdes
transfer
beyond
set
forth
thus
alter
cwa
statutory
command
matter
whether
alteration
characterized
amendment
partial
repeal
every
amendment
statute
effects
partial
repeal
extent
new
statutory
command
displaces
earlier
inconsistent
commands
repeatedly
recognized
implied
amendments
favored
implied
repeals
see
regional
rail
reorganization
act
cases
new
statute
read
wholly
even
partially
amending
prior
one
unless
exists
repugnancy
provisions
new
old
quoting
penn
central
transportation
supp
sp
welden
amendments
implication
favored
madigan
modification
implication
settled
construction
earlier
different
section
favored
dissent
incorrect
suggesting
secretary
interior
declared
snail
darter
endangered
species
tva
surely
obligated
spend
additional
funds
congress
appropriated
complete
project
post
contrary
tva
hill
found
clear
repugnancy
esa
acts
appropriating
funds
tva
latter
simply
require
agency
use
generally
appropriated
funds
complete
tellico
dam
project
example
requires
epa
consider
whether
state
legal
authority
enforce
applicable
water
quality
standards
turn
informed
judgment
epa
administrator
see
also
permit
transfer
process
require
scrutiny
underlying
standards
effect
marine
wildlife
state
applicant
authority
issue
permits
apply
insure
compliance
applicable
standards
emphasis
added
event
respondents
dispute
epa
fws
determined
transfer
permitting
authority
arizona
officials
adverse
water
quality
related
impact
listed
species
see
app
pet
cert
respondents
also
contend
epa
taken
take
discretionary
actions
apart
transfer
authorization
implicate
esa
example
argue
epa
alleged
provision
funding
arizona
administration
clean
water
programs
kind
discretionary
agency
action
subject
however
assuming
true
funding
decision
separate
agency
action
outside
scope
lawsuit
respondents
also
point
fact
following
transfer
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authority
epa
retain
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authority
state
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power
object
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fact
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may
exercise
discretionary
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may
trigger
consultation
obligations
transfer
mean
decision
authorizing
transfer
discretionary
footnotes
see
also
babbitt
sweet
home
chapter
communities
great
section
requires
federal
agencies
ensure
none
activities
including
granting
licenses
permits
jeopardize
continued
existence
endangered
species
result
destruction
adverse
modification
habitat
species
determined
secretary
emphasis
added
misreads
sentence
overreads
decision
hill
justice
alito
maintains
hill
held
acts
appropriating
funds
tva
require
agency
use
generally
appropriated
funds
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tellico
dam
project
ante
hill
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thing
case
held
subsequent
appropriation
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dam
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esa
hold
tva
required
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funds
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hill
esa
never
enacted
stand
way
completion
tellico
dam
doubt
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finished
project
congress
funded
road
taken
hill
also
helps
clarify
interpretation
limited
discretionary
agency
action
throughout
course
litigation
tva
insisted
refer
actions
agency
ever
take
brief
petitioner
tennessee
valley
authority
hill
instead
tva
sought
restrict
actions
agency
reasonable
alternatives
ibid
rejected
narrow
interpretation
stating
way
sustain
tva
position
ignore
ordinary
meaning
plain
language
hill
see
also
kilbourne
endangered
species
act
microscope
closeup
look
litigator
perspective
envtl
noting
agency
explain
addition
word
discretionary
weller
limiting
scope
endangered
species
act
discretionary
federal
involvement
control
section
hastings
envtl
spring
petitioner
national
association
home
builders
nahb
points
following
language
final
rule
indication
applies
discretionary
action
federal
agency
responsibility
section
permeates
full
range
discretionary
authority
held
agency
brief
petitoioners
nahb
et
al
quoting
fed
reg
however
language
found
different
section
final
rule
section
describing
definition
easonable
prudent
cfr
put
proper
context
cited
language
simply
indicates
reasonable
prudent
alternative
may
involve
maximum
exercise
federal
agency
authority
necessary
opinion
service
avoid
jeopardy
fed
reg
enough
quoted
text
supports
reading
even
petitioner
reading
indicating
agency
responsibility
permeates
full
range
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authority
epa
confirmed
esa
covers
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actions
epa
also
rely
appeals
see
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makes
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meaning
cfr
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regard
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fed
reg
approving
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administer
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stating
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believes
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reg
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approval
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clear
water
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action
subject
consultation
requirement
see
also
tr
oral
arg
conceding
epa
conducted
six
consultations
past
endangered
species
committee
composed
six
federal
officials
representative
affected
state
appointed
president
see
see
title
provides
committee
shall
grant
exemption
requirements
subsection
agency
action
vote
less
five
members
voting
person
determines
record
based
report
secretary
record
hearing
held
subsection
testimony
evidence
may
receive
reasonable
prudent
alternatives
agency
action
ii
benefits
action
clearly
outweigh
benefits
alternative
courses
action
consistent
conserving
species
critical
habitat
action
public
interest
iii
action
regional
national
significance
iv
neither
federal
agency
concerned
exemption
applicant
made
irreversible
irretrievable
commitment
resources
prohibited
subsection
establishes
reasonable
mitigation
enhancement
measures
including
limited
live
propagation
transplantation
habitat
acquisition
improvement
necessary
appropriate
minimize
adverse
effects
agency
action
upon
endangered
species
threatened
species
critical
habitat
concerned
quite
lengthy
include
full
text
appendix
dissent
see
gutierrez
de
martinez
lamagno
though
generally
means
legal
writers
sometimes
use
misuse
mean
even
see
mellinkoff
mellinkoff
dictionary
american
legal
usage
treated
synonyms
meaning
depends
context
garner
dictionary
modern
legal
usage
ed
courts
virtually
every
jurisdiction
held
necessity
shall
means
may
contexts
vice
also
claims
basic
principle
announced
department
transportation
public
citizen
agency
considered
legal
action
statutory
discretion
take
supports
reliance
ante
first
recognizes
must
distance
case
public
citizen
dealt
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requirement
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requirement
like
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views
basic
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stated
broadly
therefore
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ante
decision
public
citizen
turned
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feature
case
federal
motor
carrier
safety
administration
fmcsa
ability
countermand
president
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moratorium
prohibited
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motor
carriers
obtaining
authority
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moratorium
relevant
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entirely
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mexican
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contrast
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another
person
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epa
must
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npdes
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state
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authority
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species
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cf
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agency
activities
directly
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modifications
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water
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epa
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give
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state
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approve
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comments
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epa
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circuit
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fashion
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comments
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brief
epa