City of San Diego v. Whitman, 00-56561

• Decision Date: 13 March 2001
• Docket Number: No. 00-56561,00-56561
• Citation: 242 F.3d 1097
• Parties: (9th Cir. 2001) CITY OF SAN DIEGO, a California municipal corporation, Plaintiff-Appellee, v. CHRISTINE TODD WHITMAN, <A HREF="#fr1-*" name="fn1-*">* an individual in her capacity as Administrator of the United States Environmental Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants-Appellants
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1097

242 F.3d 1097 (9th Cir. 2001)

CITY OF SAN DIEGO, a California municipal corporation, Plaintiff-Appellee, v. CHRISTINE TODD WHITMAN,^* an individual in her capacity as Administrator of the United States Environmental Protection Agency; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, Defendants-Appellants.

No. 00-56561

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted February 8, 2001

Filed March 13, 2001

Martin F. McDermott, United States Department of Justice, Washington, D.C., for the defendants-appellants.

John R. Reese, McCutchen, Doyle, Brown & Enersen, Los Angeles, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California Rudi M. Brewster, Senior District Judge, Presiding. D.C. No. CV-00-00436-RMB

Before: Harry Pregerson, William C. Canby, Jr., and David R. Thompson, Circuit Judges.

THOMPSON, Circuit Judge:

The United States Environmental Protection Agency ("EPA") appeals the district court's entry of a preliminary injunction in an action brought by the City of San Diego seeking judicial review, under the Administrative Procedure Act ("APA"), 5 U.S.C. S 704, of a letter written by the EPA. The EPA's letter stated that it would apply the provisions of the Ocean Pollution Reduction Act of 1994 ("OPRA"), 33 U.S.C. S 1311(j), to the City's as-yet-unfiled application for renewal of a modified National Pollutant Discharge Elimination System ("NPDES") permit. The City characterizes this letter as "final agency action" and contends that it violates the intention of Congress that OPRA govern only the City's original application for a modified NPDES permit, not subsequent applications for renewal of that permit. The City argues that the application process is lengthy, complicated and costly, and that it needs a judicial determination, before it files its application for renewal of its modified NPDES permit, whether it will have to comply with the provisions of OPRA on an ongoing basis.

The district court concluded that the EPA's letter was subject to judicial review under the APA as "final agency action." The district court issued a preliminary injunction enjoining the EPA from enforcing a July 15, 2000 deadline for submission of the City's application for renewal of its modified NPDES permit until after the court conducted a bench trial and a decision in the case had become final following any appeal.

We have jurisdiction over the EPA's appeal of the district court's preliminary injunction pursuant to 28 U.S.C.S 1292(a)(1). We conclude that the district court lacked subject matter jurisdiction because the EPA's letter did not constitute final agency action. We decline to consider the other issues raised in this appeal. We vacate the preliminary injunction, and remand the case to the district court with instructions to dismiss the City's underlying action.

BACKGROUND

The City of San Diego operates the Point Loma Wastewater Treatment Plant, a publicly-owned wastewater treatment facility that discharges pollutants into the Pacific Ocean. The Clean Water Act ("CWA") prohibits such discharge except as authorized by a NPDES permit. See 33 U.S.C. S 1311(a); Defenders of Wildlife v. Browner, 191 F.3d 1159, 1163 (9th Cir. 1999). To receive a permit, the CWA requires that a publicly-owned wastewater treatment facility meet secondary treatment requirements. See 33 U.S.C. S 1311(b)(1)(B). In 1977, Congress amended the CWA to permit the EPA to modify the secondary treatment requirements for publicly-owned wastewater treatment facilities that discharge pollutants into ocean waters. See 33 U.S.C. S 1311(h) ("section 301(h)").

The City wanted to obtain the benefits of modified secondary treatment requirements for its Point Loma Wastewater Treatment Plant, but failed to submit an application for a section 301(h) modified permit by the deadline specified in 33 U.S.C. S 1311(j)(1)(A). In order to relieve the City of the consequences of failing to comply with that deadline, Congress enacted special legislation authorizing the City to apply for a section 301(h) modified permit during a 180-day period beginning October 31, 1994. See OPRA, Pub. L. No. 103-431, 108 Stat. 4396, codified at 33 U.S.C. S 1311(j)(5). In order to take advantage of the revised deadline for submitting its application, OPRA required the City to: (1) commit to implement a wastewater reclamation program that would achieve a system capacity of 45 million gallons of reclaimed wastewater per day by January 1, 2010, (2) commit to implement a wastewater reclamation program that would result in a reduction in the quantity of suspended solids discharged by the City into the marine environment during the period of the modification, (3) show that modification would result in removal of not less than 80% of total suspended solids (on a monthly average) in the discharge of the wastewater plant, and (4) show that modification would result in removal of not less than 58% of the biological oxygen demand (on an annual average) in the discharge of the wastewater plant. See 33 U.S.C. S 1311(j)(5)(B) and (C).

Within the deadline imposed by OPRA, the City submitted an application for a section 301(h) modified permit. Pursuant to that application, on December 12, 1995, the EPA and the State of California issued a section 301(h) modified permit for the Point Loma facility, which incorporated the substantive requirements of OPRA.¹ This permit was due to expire December 15, 2000. An application for renewal of the modified permit was to be filed six months before the permit expired (June 15, 2000).² See 40 C.F.R. S 122.46; 40 C.F.R. S 125.59.

On December 13, 1999, the Mayor of the City of San Diego wrote to EPA Administrator Carol Browner "request[ing] your assistance regarding an issue impacting the City of San Diego's application for renewal of its National Pollutant Discharge Elimination System ("NPDES") permit for its Point Loma Wastewater Treatment Plant under the Clean Water Act." The Mayor stated:

By law, the City of San Diego must submit a renewal application for its NPDES permit for Point Loma by June of 2000 (40 C.F.R. 122.46, 125.59). . . .

As detailed below, the City's position is that OPRA was intended to govern the reopening of the waiver application window only. Once a permit is granted, the renewals are to be governed not by OPRA, but by the waiver regulations applicable to all dischargers. Given the obvious significance of this issue, and its impact on the nature and consideration of the application, it must be resolved before the City can file its renewal application. . . .

The City is presently developing the information necessary to submit its renewal application for Point Loma. EPA's interpretation of OPRA is of obvious and primary importance to the effort, as it will dictate how the City must proceed towards renewal of its permit. In the absence of this determination, the City will be faced with the prospect of submitting dual and inconsistent renewal applications, which will not only be wasteful, but will also wreak havoc on the City's wastewater programmatic and financial planning efforts.

On February 17, 2000, the EPA Regional Administrator for Region IX responded to the Mayor's request for assistance in a letter stating that, "[a]fter thorough review of this question with the Offices of Regional Counsel and General Counsel, EPA interprets the OPRA conditions to continue in effect upon application for renewal of the City's 301(h) modified permit." The Regional Administrator further stated:

I encourage the City to submit its application for renewal of its 301(h) modified permit promptly and in accordance with OPRA. I assure you that EPA Region IX will give fair and timely consideration to the City's renewal application. In addition, like all other EPA actions on 301(h) modified permit applications, Region IX's action on the City's application will be subject to review by the Environmental Appeals Board ("EAB") once Region IX makes its decision on the City's application for renewal of the 301(h) modified permit. If the City bases its application on its own interpretation of the applicability of OPRA conditions, the City could raise the OPRA issue in an appeal to the EAB. This letter, however, cannot constitute "final agency action" for purposes of obtaining judicial review. Final agency action occurs upon completion of the permit appeal process described above.

Instead of filing an application for renewal of its modified permit, the City filed the present action in district court. The City sought judicial review under the Administrative Procedure Act, 5 U.S.C. S 704, of the EPA's letter stating that OPRA was intended to apply not only to the City's original application for a section 301(h) modified permit, which Congress permitted to be filed late, but also to all subsequent applications for renewal of the modified permit. ³ The City alleged that the EPA's letter constituted "final agency action." The City also alleged that the letter constituted rule-making undertaken without notice and public comment.⁴

The EPA moved to dismiss the City's complaint for lack of subject matter jurisdiction. The EPA argued that its letter was not "final agency action;" that the dispute was not ripe for review; that the City had not exhausted its administrative remedies; and that 33 U.S.C. S 1369(b)(1) vested exclusive jurisdiction over EPA decisions related to NPDES permits in the United States Courts of Appeals.

The district court denied the EPA's motion to dismiss for lack of subject matter jurisdiction. It determined that the EPA's letter "constitute[d] a final action reviewable in this court because it constitute[d] Defendants' definitive position on the applicability of 33 U.S.C. S 1311(j)(5), and create[d] immediate and direct adverse effects on Plaintiff. " The court also determined that the letter was ripe for review because judicial intervention...