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Southern California Alliance of Publicly Owned Treatment Works v. U.S. Environmental Protection Agency

United States Court of Appeals, Ninth Circuit

April 12, 2017

Southern California Alliance of Publicly Owned Treatment Works, Petitioner,
v.
U.S. Environmental Protection Agency; Jared Blumenfeld, Regional Administrator, USEPA, Region IX, Respondents.

          Argued and Submitted November 7, 2016 Pasadena, California

         On Petition for Review of an Order of the Environmental Protection Agency

          Melissa Thorme (argued), Downey Brand LLP, Sacramento, California, for Petitioner.

          Eileen 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.

         SUMMARY[**]

         Environmental Law

         The 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.

         The 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).

         In 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.

         Petitioners 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.

         The 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.

          OPINION

          BYBEE, Circuit Judge.

         The 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.

         I. BACKGROUND

         A. The Clean Water Act

         In 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. § 1342(a).

         The CWA 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/ npdes-state-program-information (follow: "Authority" hyperlink).

         Even 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).

         The 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).

         B. California's NPDES Permitting Program

         In 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 ...


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