Southern California Alliance of Publicly Owned Treatment Works, Petitioner,
U.S. Environmental Protection Agency; Jared Blumenfeld, Regional Administrator, USEPA, Region IX, Respondents.
and Submitted November 7, 2016 Pasadena, California
Petition for Review of an Order of the Environmental
Melissa Thorme (argued), Downey Brand LLP, Sacramento,
California, for Petitioner.
T. McDonough (argued), Attorney; John C. Cruden, Assistant
Attorney General; Environment Defense Section, Environment
and Natural Resources Division, United States Department of
Justice, Washington, D.C.; Marcela von Vacano, Assistant
Regional Counsel, Region 9, United States Environmental
Protection Agency, San Francisco, California; Pooja S.
Parikh, Attorney-Advisor, Office of the General Counsel,
United States Environmental Protection Agency, Washington,
D.C.; for Respondents.
Before: Kim McLane Wardlaw and Jay S. Bybee, Circuit Judges,
and Robert Holmes Bell, [*] District Judge.
panel dismissed for lack of subject matter jurisdiction the
petition for review brought by the Southern California
Alliance of Publicly Owned Treatment Works, challenging an
Objection Letter sent by the United States Environmental
Protection Agency (EPA) regarding draft permits for water
reclamation plants in El Monte and Pomona, California.
Clean Water Act prohibits the discharge of any pollutant into
navigable waters from any point source without a permit, and
permits are issued in accordance with the National Pollutant
Discharge Elimination System (NPDES). When a state assumes
primary responsibility for issuing NPDES permits, the EPA
retains supervisory authority over state permitting programs
under 33 U.S.C. § 1324(d).
1973, the EPA granted California authority to administer its
NPDES permits program. The Los Angeles Regional Office of the
California State Water Resources Control Board prepared the
draft NPDES permits for the water reclamation plants at
issue. The EPA issued an Objection Letter to the draft
permits raising concerns about the effluent toxicity. The Los
Angeles Board revised the draft permits to meet the terms of
the EPA's Objection Letter, and issued the permits.
argued that the draft permits were consistent with the Clean
Water Act and that the EPA exceeded its authority in
requiring water quality-based effluent limitations for whole
effluent toxicity and other limitations.
panel held that neither 33 U.S.C. § 1369(b)(1)(E) nor
(F) of the Clean Water Act provided the court with subject
matter jurisdiction to review the Objection Letter. The panel
held that when a state assumes responsibility for
administering the NPDES program, the state becomes the
permit-issuing authority, and an EPA objection to a draft
permit is merely an interim step in the state permitting
process. The panel held that here, the Los Angeles Board
chose to revise the draft permits and retain control of the
NPDES permitting process for the plants, and the permits were
issued through the State of California, not the EPA. The
panel concluded that the appropriate avenue for petitioners
to seek redress was through the State's review process.
Southern California Alliance of Publicly Owned Treatment
Works (SCAP) petitions for review of an objection letter sent
by the United States Environmental Protection Agency (EPA)
regarding draft permits for water reclamation plants in El
Monte and Pomona, California. SCAP argues that we have
original jurisdiction to review the objection letter under 33
U.S.C. § 1369(b)(1)(E), which applies to EPA action
"approving or promulgating any effluent limitation,
" and 33 U.S.C. § 1369(b)(1)(F), which applies to
EPA action "issuing or denying any permit." We
agree with EPA that we lack subject matter jurisdiction to
hear SCAP's claims, and we dismiss the petition.
The Clean Water Act
1972, Congress enacted sweeping amendments to the Federal
Water Pollution Control Act (FWPCA) of 1948 "to restore
and maintain the chemical, physical, and biological integrity
of the Nation's waters." 33 U.S.C. § 1251(a).
After another round of substantial amendments in 1977, the
statute became known as the Clean Water Act (CWA or the Act).
The CWA prohibits the discharge of any pollutant into
navigable waters from any point source without a permit.
Id. § 1311(a). Permits are issued in accordance
with the National Pollutant Discharge Elimination System
(NPDES). Id. § 1342(a). These permits authorize
certain point source discharges and are typically conditioned
on compliance with water quality standards and effluent
limitations issued under the Act. Id. §
establishes two pathways for the issuance of NPDES permits.
First, EPA may issue the permits under 33 U.S.C. §
1342(a). Second, the states, with EPA approval, may assume
responsibility for issuing permits. Id. §
1342(b). The state program must meet specific requirements,
including incorporating certain provisions of the NPDES
regulations, and be approved by EPA. Id.; 40 C.F.R.
§§ 123.25(a)(15), 122.44. "If [NPDES
permitting] authority is transferred, then state
officials-not the federal EPA-have the primary responsibility
for reviewing and approving NPDES discharge permits, albeit
with continuing EPA oversight." Nat'l Ass'n
of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 650
(2007). Forty-six states, including California, currently
have authority to issue their own NPDES permits. EPA, NPDES
State Program Information, https://www.epa.gov/npdes/
when a state assumes primary responsibility for issuing NPDES
permits, EPA retains supervisory authority over state
permitting programs under 33 U.S.C. § 1342(d). The state
must transmit to EPA a copy of each permit application
received, as well as proposed permits, and EPA has ninety
days to notify the state of any objections it has to the
draft permit. Id. § 1342(d)(1)-(2). The
objection must be in writing and state "the reasons for
such objection and the effluent limitations and conditions
which such permit would include if it were issued by"
EPA. Id. § 1342(d)(2). If the disagreement
proves intractable, the state or any interested person can
request that EPA hold a public hearing on the objection.
Id. § 1342(d)(4); 40 C.F.R. § 123.44(e).
Following a public hearing, EPA may reaffirm, withdraw, or
modify the original objection. 40 C.F.R. § 123.44(g). If
the state does not request a hearing or EPA maintains its
objection, the state then has a choice: It can either revise
the permit to address EPA's objection or allow permitting
authority to pass back to EPA. 33 U.S.C. § 1342(d)(4);
see also 40 C.F.R. § 123.44(h).
state's decision either to make the changes and retain
jurisdiction over the permit or to relinquish permitting
authority to EPA has practical consequences for further
review. If the state chooses to revise and issue a permit, an
aggrieved party can seek further administrative review and
then judicial review in accordance with state law. See
Am. Paper Inst., Inc. v. EPA, 890 F.2d 869, 875 (7th
Cir. 1989). By contrast, if jurisdiction returns to EPA and
EPA issues a federal NPDES permit, EPA's decision may be
appealed within EPA to the Environmental Appeals Board (EAB).
40 C.F.R. § 124.19(a)(1). A final EPA permit approved by
the EAB is subject to review in an appropriate circuit court
of appeals. 33 U.S.C. § 1369(b)(1)(F).
California's NPDES Permitting Program
1973, EPA granted California authority to administer the
NPDES permits program. Approval of California's Revisions
to the State National Pollution Discharge Elimination System
Program, 54 Fed. Reg. 40, 664 (Oct. 3, 1989); Discharges of
Pollutants to Navigable Waters: Approval of State Programs,
39 Fed. Reg. 26, 061 (July 16, 1974). Regional Boards make
the initial permitting decisions. The California State Water
Resources Control Board (State Board), the final NPDES
permitting authority in California, reviews the permits
issued by ...