The NAM and other associations filed challenges to purported state authority under the National Pollution Discharge Elimination System (NPDES) to implement Endangered Species Act requirements. Filed 5/20 and 5/27/97. This case could affect all discharge permits as EPA tries to impose Endangered Species Act requirements through NPDES programs under the Clean Water Act (CWA). On 3/30/98, the Fifth Circuit ruled that EPA cannot condition CWA permit decision on Endangered Species Act consultations. The Tenth Circuit case was dismissed on 9/1/98 with a decision holding that the plaintiffs did not have standing.
A 1996 EPA rule tried to delegate CWA enforcement and permitting decisions to Louisiana, but added new requirements that the state consult with the U.S. Fish and Wildlife Service and National Marine Fisheries about the possible effects of discharges on certain species. The 5th Circuit ruled that the CWA does not allow such consideration of factors outside the nine concrete criteria specified for the issuance of a permit.
The Court also ruled that an association need not have commented on a proposed rule during the rulemaking process to bring suit after the rule is issued. It also found that the association had "injury in fact," not speculative injury, because its members must comply with the provisions as their permits come up for renewal every five years, and because the EPA has already identified the circumstances under which it will veto a proposed permit.