US SUPREME COURT DECISIONS

In answering Hill’s first question, we did not discuss implied repeals. On the contrary, that portion of the opinion contained our definitive interpretation of the ESA, in which we concluded that “the language, history, and structure of the [ESA] indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities.” 437 U. S., at 174; see also id., at 177 (“ ‘The dominant theme pervading all Congressional discussion of the proposed [ESA] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources’ ” (quoting Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 1973, 51 N. D. L. Rev. 315, 321 (1975) (emphasis added in Hill))). With respect to §7 in particular, our opinion could not have been any clearer. We plainly held that it “admits of no exception.” 437 U. S., at 173 (emphasis added). [Footnote 1].

Our opinion in Hill explained at length why §7 imposed obligations on “all federal agencies” to ensure that “actions authorized, funded, or carried out by them do not jeopardize the continued existence of endangered species.” 437 U. S., at 173 (emphasis deleted; internal quotation marks omitted). Not a word in the opinion stated or suggested that §7 obligations are inapplicable to mandatory agency actions that would threaten the eradication of an endangered species. Nor did the opinion describe the Tennessee Valley Authority’s (TVA) attempted completion of the Tellico Dam as a discretionary act. How could it? After all, if the Secretary of the Interior had not declared the snail darter an endangered species whose critical habitat would be destroyed by operation of the Tellico Dam, the TVA surely would have been obligated to spend the additional funds that Congress appropriated to complete the project. [Footnote 2] Unconcerned with whether an agency action was mandatory or discretionary, we simply held that §7 of the ESA

“reveals an explicit congressional decision to require agencies to afford first priority to the declared national policy of saving endangered species. The pointed omission of the type of qualifying language previously included in endangered species legislation reveals a conscious decision by Congress to give endangered species priority over the ‘primary missions’ of federal agencies. ” Id., at 185 (emphasis added). [Footnote 3]

The fact that we also concluded that the post-1973 congressional appropriations did not impliedly repeal the ESA provides no support for the majority’s contention that the obligations imposed by §7(a)(2) may be limited to discretionary acts. A few passages from the relevant parts of Hill belie that suggestion. After noting the oddity of holding that the interest in protecting the survival of a relatively small number of 3-inch fish “would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million,” we found “that the explicit provisions of the Endangered Species Act require precisely that result.” Id., at 172, 173. We then continued:

“One would be hard pressed to find a statutory provision whose terms were any plainer than those in §7 of the Endangered Species Act. Its very words affirmatively command all federal agencies ‘to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence’ of an endangered species or ‘result in the destruction or modification of habitat of such species … .’ ” Id., at 173 (quoting 16 U. S. C. §1536 (1976 ed.) (emphasis added in Hill)).

We also reviewed the ESA’s history to identify a variety of exceptions that had been included in earlier legislation and unenacted proposals but were omitted from the final version of the 1973 statute. We explained that earlier endangered species legislation “qualified the obligation of federal agencies,” but the 1973 Act purposefully omitted “all phrases which might have qualified an agency’s responsibilities.” 437 U. S., at 181, 182. Moreover, after observing that the ESA creates only a limited number of “hardship exemptions,” see 16 U. S. C. §1539—none of which would apply to federal agencies—we applied the maxim expressio unius est expression alterius to conclude that “there are no exemptions in the Endangered Species Act for federal agencies,”437 U. S., at 188.

Today, however, the Court countenances such an exemption. It erroneously concludes that the ESA contains an unmentioned exception for nondiscretionary agency action and that the statute’s command to enjoin the completion of the Tellico Dam depended on the unmentioned fact that the TVA was attempting to perform a discretionary act. But both the text of the ESA and our opinion in Hill compel the contrary determination that Congress intended the ESA to apply to “all federal agencies” and to all “actions authorized, funded, or carried out by them.” Id., at 173 (emphasis deleted).

A transfer of NPDES permitting authority under §402(b) of the CWA is undoubtedly one of those “actions” that is “authorized” or “carried out” by a federal agency. See 16 U. S. C. §1536(b); 50 CFR §402.02 (defining “action” as “all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to . . . actions directly or indirectly causing modifications to the land, water, or air”). It follows from Hill that §7(a)(2) applies to such NPDES transfers—whether they are mandatory or discretionary.

II

Given our unequivocal holding in Hill that the ESA has “first priority” over all other federal action, 437 U. S., at 185, if any statute should yield, it should be the CWA. But no statute must yield unless it is truly incapable of coexistence. See, e.g., Morton, 417 U. S., at 551. Therefore, assuming that §402(b) of the CWA contains its own mandatory command, we should first try to harmonize that provision with the mandatory requirements of §7(a)(2) of the ESA.

The Court’s solution is to rely on 50 CFR §402.03, which states that “Section 7 and the requirements of this part apply to all actions in which there is discretionary Federal involvement or control.” The Court explains that this regulation “harmonizes the statutes by giving effect to the ESA’s no-jeopardy mandate whenever an agency has discretion to do so, but by lifting that mandate when the agency is forbidden from considering such extrastatutory factors.” Ante, at 17. This is not harmony, and it certainly isn’t effect. Rather than giving genuine effect to §7(a)(2), the Court permits a wholesale limitation on the reach of the ESA. Its interpretation of §402.03 conflicts with the text and history of the regulation, as well as our interpretation of §7 in the “snail darter” case.

To begin with, the plain language of §402.03 does not state that its coverage is limited to discretionary actions. Quite the opposite, the most natural reading of the text is that it confirms the broad construction of §7 endorsed by our opinion in Hill. Indeed, the only way to read §402.03 in accordance with the facts of the case and our holding that §7 “admits of no exception[s],” 437 U. S., at 173, is that it eliminates any possible argument that the ESA does not extend to situations in which the discretionary federal involvement is only marginal.

The Court is simply mistaken when it says that it reads §402.03 “to mean what it says: that §7(a)(2)’s no-jeopardy duty covers only discretionary agency actions … .” Ante, at 21 (emphasis added). That is not, in fact, what §402.03 “says.” The word “only” is the Court’s addition to the text, not the agency’s. Moreover, that text surely does not go on to say (as the Court does) that the duty “does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred.” Ibid. If the drafters of the regulation had intended such a far-reaching change in the law, surely they would have said so by using language similar to that which the Court uses today.

Nothing in the proceedings that led to the promulgation of the regulation suggests any reason for limiting the pre-existing understanding of the scope of §7’s coverage. EPA codified the current version of §402.03 in 1986 as part of a general redrafting of ESA regulations. In the 1983 Notice of Proposed Rulemaking, the proposed version of §402.03 stated that “§7 and the requirements of this Part apply to all actions in which there is Federal involvement or control.” 48 Fed. Reg. 29999 (1983). Without any explanation, the final rule inserted the word “discretionary” before “Federal involvement or control.” 51 Fed. Reg. 19958 (1986). [Footnote 4] Clearly, if the Secretary of the Interior meant to limit the pre-existing understanding of the scope of the coverage of §7(a)(2) by promulgating this regulation, that intent would have been mentioned somewhere in the text of the regulations or in contemporaneous comment about them. See National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 1001 (2005) (holding that an agency is free within “the limits of reasoned interpretation to change course” only if it “adequately justifies the change”); Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 48 (1983) (“We have frequently reiterated that an agency must cogently explain why it has exercised its discretion in a given manner”). Yet, the final rule said nothing about limiting the reach of §7 or our decision in Hill. Nor did it mention the change from the notice of proposed rulemaking. I can only assume, then, that the regulation does mean what both it and the notice of proposed rulemaking says: Section 7(a)(2) applies to discretionary federal action, but not only to discretionary action.

The only explanation the agency provided for §402.03 was the following:

“This section, which explains the applicability of section 7, implicitly covers Federal activities within the territorial jurisdiction of the United States and upon the high seas as a result of the definition of ‘action’ in §402.02. The explanation for the scope of the term ‘action’ is provided in the discussion under §402.01 above.” 51 Fed. Reg. 19937.

This statement directs us to two sources: the definition of “action” in §402.02 and the “explanation for the scope of the term ‘action’ ” in §402.01. Ibid. Both confirm that there was no intent to draw a distinction between discretionary and nondiscretionary actions.

Section 402.02 provides in relevant part:

“Action means all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States or upon the high seas. Examples include, but are not limited to:.

“(a) actions intended to conserve listed species or their habitat;.

“(b) the promulgation of regulations . . . ” (second and third emphases added.)

Actions in either of the described sub-categories are sometimes mandatory and sometimes discretionary. Likewise, as the italicized portions indicate, the term “action” expressly refers to “all” agency activities or programs “of any kind,” regardless of whether they are discretionary or mandatory. By reading the term “discretionary” as a limitation on “action,” the Court creates a contradiction in the EPA’s own regulation. [Footnote 5].

As for the final rule’s explanation for the scope of the term ’action’ in §402.01, that too is fully consistent with my interpretation of §402.03. That explanation plainly states that “all Federal actions including ‘conservations programs’ are subject to the consultation requirements of section 7(a)(2) if they ‘may affect’ listed species or their critical habitats.” 51 Fed. Reg. 19929 (emphasis added). The regulation does not say all “discretionary” federal actions, nor does it evince an intent to limit the scope of §7(a)(2) in any way. Rather, it just restates that the ESA applies to “all” federal actions, just as the notice of proposed rulemaking did. This explanation of the scope of the word “action” is therefore a strong indication that the Court’s reading of “discretionary” is contrary to its intended meaning.

An even stronger indication is the fact that at no point in the administrative proceedings in these cases did EPA even mention it. [Footnote 6] As an initial matter, it is worth emphasizing that even if EPA had relied on §402.03, its interpretation of the ESA would not be entitled to deference under Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984), because it is not charged with administering that statute, id., at 844 (“We have long recognized that considerable weight should be accorded to an executive department’s construction of a statutory scheme it is entrusted to administer.” (emphasis added)); Department of Treasury v. FLRA, 837 F. 2d 1163, 1167 (CADC 1988) (“[W]hen an agency interprets a statute other than that which it has been entrusted to administer, its interpretation is not entitled to deference”). The Departments of the Interior and Commerce, not EPA, are charged with administering the ESA. See Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S., 687, 703–704 (1995). And EPA has conceded that the Department of the Interior’s biological opinion “did not discuss 50 CFR. 402.03, and it did not address the question whether the consultation that produced the [biological opinion] was required by the ESA.” Pet. for Cert. in No. 06–549, p. 24; see App. 77–124 (never mentioning §402.03). Left with this unfavorable administrative record, EPA can only lean on the fact that the Department of the Interior has recently “clarified” its position regarding §402.03 in a different administrative proceeding. See Pet. for Cert. in No. 06–549, pp. 24–25; id., at 26 (“The recent F[ish and Wildlife Service] and N[ational Marine Fisheries Service] communications regarding Alaska’s pending transfer application reflect those agencies’ considered interpretations . . . of [50 CFR] 402.03”); App. to Pet. for Cert. in No. 06–340, pp. 103a–116a; see also ante, at 12 n. 5. We have long held, however, that courts may not affirm an agency action on grounds other than those adopted by the agency in the administrative proceedings. See SEC v. Chenery Corp., 318 U. S. 80, 87 (1943). The majority ignores this hoary principle of administrative law and substitutes a post-hoc interpretation of §7(a)(2) and §402.03 for that of the relevant agency. For that reason alone, these cases should be remanded to the agency. And for the other reasons I have given, §402.03 cannot be used to harmonize the CWA and the ESA.

III

There are at least two ways in which the CWA and the ESA can be given full effect without privileging one statute over the other.

A

The text of §7(a)(2) itself provides the first possible way of reconciling that provision with §402(b) of the CWA. The subsection reads:

“Each Federal agency shall, in consultation with and with the assistance of the Secretary, insure that any action authorized, funded, or carried out by such agency (hereinafter in this section referred to as an ‘agency action’) is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical, unless such agency has been granted an exemption for such action by the Committee pursuant to subsection (h) of this section.” 16 U. S. C. §1536(a)(2) (emphasis added).

The Court is certainly correct that the use of the word “shall” in §7(a)(2) imposes a mandatory requirement on the federal agencies. See ante, at 14. It is also correct that the ESA’s “mandate is to be carried out through consultation and may require the agency to adopt an alternative course of action.” Ante, at 15. The Court is too quick to conclude, however, that this consultation requirement creates an irreconcilable conflict between this provision and §402(b) of the CWA. It rushes to this flawed judgment because of a basic conceptual error—an error that is revealed as early as the first paragraph of its opinion. Rather than attempting to find a way to give effect to §7(a)(2)’s consultation requirement, the Court frames the question presented as “whether §7(a)(2) effectively operates as a tenth criterion on which the transfer of permitting power under the first statute must be conditioned. ” Ante, at 1–2. The Court is not alone in this. The author of the Ninth Circuit opinion below also stated that the ESA “adds one requirement to the list of considerations under the Clean Water Act permitting transfer provision.” 450 F. 3d, at 404 n. 2 (2006) (Berzon, J., concurring in denial of rehearing en banc) (emphasis in original). But while the ESA does mandate that the relevant agencies “consul[t]” with the Interior Department, that consultation process also provides a way for the agencies to give effect to both statutes.

The first step in the statutory consultation process is to identify whether any endangered species will be affected by an agency action. An agency proposing a particular action, such as an NPDES transfer, will typically ask the Secretary of the Interior whether any listed species may be present in the area of the proposed action and whether that action will “affect” those species. See 16 U. S. C. §1536(c). It is entirely possible that no listed species will be affected, and any anticipated conflict between the ESA and another statute will have been avoided at this threshold stage. If, however, the Secretary determines that a proposed action may affect an endangered species or its critical habitat, the agency must formally consult with the Secretary. This consultation culminates in the issuance of a “biological opinion,” which “detail[s] how the agency action affects the species or its critical habitat.” §1536(b)(3)(A); see also 50 CFR §402.14(h). Even at this stage, it is still possible that formal consultation will reveal that the agency action will not jeopardize any species. See, e.g., 63 Fed. Reg. 51199 (1998) (noting that FWS rendered a “no jeopardy” finding with respect to the transfer of permitting authority to Texas).

If the biological opinion concludes that the agency action would put a listed species in jeopardy, however, the ESA contains a process for resolving the competing demands of agency action and species protection. The ESA provides that “the Secretary shall suggest those reasonable and prudent alternatives which he believes would not violate subsection (a)(2) and can be taken by the Federal agency or applicant in implementing the agency action.” 16 U. S. C. §1536(b)(3)(A); see also 50 CFR §402.14(h)(3). The agency’s regulations define “[r]easonable and prudent alternatives” as

“alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that can be implemented consistent with the scope of the Federal agency’s legal authority and jurisdiction, that is economically and technologically feasible, and that the Director [of FWS] believes would avoid the likelihood of jeopardizing the continued existence of listed species or resulting in the destruction or adverse modification of critical habitat. ” 50 CFR §402.02.

Thus, in the face of any conflict between the ESA and another federal statute, the ESA and its implementing regulations encourage federal agencies to work out a reasonable alternative that would let the proposed action move forward “consistent with [its] intended purpose” and the agency’s “legal authority,” while also avoiding any violation of §7(a)(2).

When applied to the NPDES transfer program, the “reasonable and prudent alternatives” process would enable EPA and the Department of the Interior to develop a substitute that would allow a transfer of permitting authority and would not jeopardize endangered species. Stated differently, the consultation process would generate an alternative course of action whereby the transfer could still take place—as required by §402(b) of the CWA—but in such a way that would honor the mandatory requirements of §7(a)(2) of the ESA. This should come as no surprise to EPA, as it has engaged in pre-transfer consultations at least six times in the past and has stated that it is not barred from doing so by the CWA. [Footnote 7].

Finally, for the rare case in which no “reasonable and prudent alternative” can be found, Congress has provided yet another mechanism for resolving any conflicts between the ESA and a proposed agency action. In 1978, shortly after our decision in Hill, Congress amended the ESA to create the “Endangered Species Committee,” which it authorized to grant exemptions from §7(a)(2). 16 U. S. C. §1536(e). Because it has the authority to approve the extinction of an endangered species, the Endangered Species Committee is colloquially described as the “God Squad” or “God Committee.” In light of this weighty responsibility, Congress carefully laid out requirements for the God Committee’s membership, [Footnote 8] procedures, [Footnote 9] and the factors it must consider in deciding whether to grant an exemption. [Footnote 10].

As the final arbiter in situations in which the ESA conflicts with a proposed agency action, the God Committee embodies the primacy of the ESA’s mandate and serves as the final mechanism for harmonizing that Act with other federal statutes. By creating this Committee, Congress recognized that some conflicts with the ESA may not be capable of resolution without having to forever sacrifice some endangered species. At the same time, the creation of this last line of defense reflects Congress’ view that the ESA should not yield to another federal action except as a final resort and except when authorized by high level officials after serious consideration. In short, when all else has failed and two federal statutes are incapable of resolution, Congress left the choice to the Committee—not to this Court; it did not limit the ESA in the way the majority does today.

B

EPA’s regulations offer a second way to harmonize the CWA with the ESA. After EPA has transferred NPDES permitting authority to a State, the agency continues to oversee the State’s permitting program. See Arkansas v. Oklahoma, 503 U. S. 91, 105 (1992) (“Congress preserved for the Administrator broad authority to oversee state permit programs”). If a state permit is “outside the guidelines and the requirements” of the CWA, EPA may object to it and block its issuance. See 33 U. S. C. §1342(d)(2); 66 Fed. Reg. 11206 (2001). Given these ongoing responsibilities, EPA has enacted a regulation that requires a State to enter into a Memorandum of Agreement (MOA) that sets forth the particulars of the agency’s oversight duties. See 40 CFR §123.24(a) (2006).

   The regulation governing MOAs contains several detailed requirements. For instance, the regulation states that an MOA must contain “[p]rovisions specifying classes and categories of permit applications, draft permits and proposed permits that the State will send to the [EPA] Regional Administrator for review, comment and, where applicable, objection,” §123.24(b)(2); “[p]rovisions specifying the frequency and content of reports, documents and other information which the State is required to submit to the EPA,” §123.24(b)(3); and “[p]rovisions for coordination of compliance monitoring activities by the State and by EPA,” §123.24(b)(4)(i). More generally, the regulation provides that an MOA “may include other terms, conditions, or agreements” that are “relevant to the administration and enforcement of the State’s regulatory program.” §123.24(a). Under the MOA regulation, furthermore, EPA will not approve any MOA that restricts its statutory oversight responsibility. Ibid.

Like the §7(a)(2) consultation process described above, MOAs provide a potential mechanism for giving effect to §7 of the ESA while also allowing the transfer of permitting authority to a State. It is important to remember that EPA must approve an MOA prior to the transfer of NPDES authority. As such, EPA can use—and in fact has used—the MOA process to structure its later oversight in a way that will allow it to protect endangered species in accordance with §7(a)(2) of the ESA. EPA might negotiate a provision in the MOA that would require a State to abide by the ESA requirements when issuing pollution permits. See Brief for American Fisheries Society et al. as Amici Curiae 28. (“In the Maine MOA, for example, EPA and the state agreed that state permits would protect ESA-listed species by ensuring compliance with state water quality standards”). Alternatively, “EPA could require the state to provide copies of draft permits for discharges in particularly sensitive habitats such as those of ESA-listed species or for discharges that contain a pollutant that threatens ESA-listed wildlife.” Id., at 10. Or the MOA might be drafted in a way that would allow the agency to object to state permits that would jeopardize any and all endangered species. See id., at 28 (explaining that the Maine MOA includes a provision allowing EPA to “object to any state permit that risks harm to a listed species by threatening water quality”). These are just three of many possibilities. I need not identify other ways EPA could use the MOA process to comply with the ESA; it is enough to observe that MOAs provide a straightforward way to give the ESA its full effect without restricting §7(a)(2) in the way the Court does.