| FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY OF SAN DIEGO, a California
municipal corporation,
Plaintiff-Appellee,
v.
No. 00-56561
CHRISTINE TODD WHITMAN,* an
D.C. No.
individual in her capacity as
CV-00-00436-RMB
Administrator of the United States
OPINION
Environmental Protection Agency;
UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of California
Rudi M. Brewster, Senior District Judge,
Presiding
Argued and Submitted
February 8, 2001--Pasadena, California
Filed March 13, 2001
Before: Harry Pregerson, William C. Canby,
Jr., and
David R. Thompson, Circuit Judges.
Opinion by Judge Thompson
_________________________________________________________________
*Pursuant to Fed. R. App. P. 43(c), Christine
Todd Whitman is auto-
matically substituted as a party defendant-appellant
for Carol Browner.
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COUNSEL
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.
_________________________________________________________________
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OPINION
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 seek-
ing 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 Sys-
tem ("NPDES") permit. The City characterizes
this letter as
"final agency action" and contends that it
violates the inten-
tion 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 appli-
cation for renewal of its modified NPDES
permit, whether it
will have to comply with the provisions of
OPRA on an ongo-
ing basis.
The district court concluded that the EPA's
letter was sub-
ject 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 fol-
lowing 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 sub-
ject matter jurisdiction because the EPA's
letter did not con-
stitute final agency action. We decline to
consider the other
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issues raised in this appeal. We vacate the
preliminary injunc-
tion, 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
Waste-
water Treatment Plant, a publicly-owned wastewater
treat-
ment 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
require-
ments 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 second-
ary treatment requirements for its Point
Loma Wastewater
Treatment Plant, but failed to submit an
application for a sec-
tion 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 con-
sequences 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 imple-
ment 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 waste-
water reclamation program that would result
in a reduction in
the quantity of suspended solids discharged
by the City into
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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 modi-
fication would result in removal of not less
than 58% of the
biological oxygen demand (on an annual average)
in the dis-
charge 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 modi-
fied 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
_________________________________________________________________
1 The State of California is authorized to
issue NPDES permits for point
source dischargers within its jurisdiction.
The EPA, however, issues per-
mit modifications under OPRA and 33 U.S.C.
S 1311(h) and (j). Accord-
ingly, the City's NPDES permit, which included
modifications under
OPRA, was jointly issued by the State of
California and the EPA.
2 The EPA granted an extension of the application
deadline to July 15,
2000.
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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 consider-
ation
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 dic-
tate
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
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other
EPA actions on 301(h) modified permit appli-
cations,
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 applica-
tion
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
Proce-
dure 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 Con-
gress 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
_________________________________________________________________
3 The City's complaints with the application
of OPRA to its application
for renewal are detailed in a declaration
of the Deputy Director of the Met-
ropolitan Operations and Maintenance Division
of the Metropolitan
Wastewater Department. The Deputy Director
states that: (1) the City cur-
rently spends $1,000,000 per year to comply
with OPRA's requirement of
removing 58% of biological oxygen demand
on an annual average; (2) the
City cannot continue to comply with OPRA's
conditions due to estimated
population growth; (3) the City will be forced
to retrofit its facilities in
order to attain secondary treatment standards
and the advanced primary
facilities at the Point Loma plant will be
rendered obsolete; and (4) the
OPRA conditions do not benefit the environment
and constitute wasteful
overtreatment.
4 The City also sought declaratory relief
and a writ of mandamus com-
pelling the EPA to apply the requirements
under 33 U.S.C. S 1311(h)(1)-
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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 rem-
edies; and that 33 U.S.C. S 1369(b)(1) vested
exclusive juris-
diction 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 would not interfere
with administrative
action, the issue was a question of law,
and delay would cause
substantial hardship to the City. Finally,
the court concluded
that the doctrine of exhaustion of administrative
remedies did
not bar the City's suit, nor was jurisdiction
to review the
EPA's action vested solely in the Court of
Appeals, because
the EPA's letter did "not constitute either
the approval of an
`effluent limitation or other limitation'
or the issuance or
denial of a permit" under 33 U.S.C. S 1369(b)(1).5
The district court denied the City's motion
for summary
judgment on the ground that "there are material
issues in dis-
pute as to the correct interpretation of
33 U.S.C.
S 1311(j)(5)," and set the case for trial.
The court granted the
City's motion for a preliminary injunction,
enjoining the EPA
from "enforcing the July 15, 2000 deadline
for submission of
_________________________________________________________________
(9) to its application for renewal of its
section 301(h) modified permit. The
parties do not dispute that jurisdiction
over these claims turns on whether
the EPA's letter constituted final agency
action under the Administrative
Procedure Act.
5 The district court also ruled that the
EPA's letter did not amount to
rule-making subject to notice and comment.
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an application for renewal of [the City's]
NPDES permit and
the section 301(h) waiver therein and otherwise
from taking
any action on such submission until 90 days
after final judg-
ment on all claims in [the City's] complaint,
including all
appeals thereof."
The EPA appeals the district court's preliminary
injunction.
Its principal argument on appeal is that
its letter did not con-
stitute "final agency action" and thus the
district court lacked
subject matter jurisdiction.
DISCUSSION
A. Standard of Review
We review de novo the question of subject
matter jurisdic-
tion. See Ecology Ctr., Inc. v. United States
Forest Serv., 192
F.3d 922, 924 (9th Cir. 1999).
B. Final Agency Action
[1] The APA provides for judicial review of
"final agency
action." 5 U.S.C. S 704. In Bennett v. Spear,
520 U.S. 154
(1997), the United States Supreme Court stated
that two
criteria must be satisfied for agency action
to be final:
As a
general matter, two conditions must be satisfied
for
agency action to be "final": First, the action must
mark
the "consummation" of the agency's decision-
making
process -- it must not be of a merely tenta-
tive
or interlocutory nature. And second, the action
must
be one by which "rights or obligations have
been
determined," or from which "legal conse-
quences
will flow."
Id. at 177-78 (internal citations omitted).
[2] The EPA's letter does not satisfy the
first of the Bennett
v. Spear requirements for final agency action--that
the action
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mark the " `consummation' of the agency's
decisionmaking
process." Id. The EPA's decision-making process
on the
City's application for renewal of its section
301(h) modified
permit will not even begin until the City
files its application.
If and when the City is aggrieved by the
EPA's decision
regarding its application, the City's recourse
is to appeal to
the Environmental Appeals Board ("EAB"),
as a prerequisite
to review by this court. See 33 U.S.C. S
1369(b)(1); 40 C.F.R.
S 124.19(e) ("A petition to the Environmental
Appeals Board
under paragraph (a) of this section is, under
5 U.S.C. S 704,
a prerequisite to the seeking of judicial
review of the final
agency action.").
[3] It is the EAB's decision that will constitute
the "con-
summation of the agency's decision-making
process. " This
point is made in the EPA's letter itself:
"This letter, however,
cannot constitute `final agency action' for
purposes of obtain-
ing judicial review. Final agency action
occurs upon comple-
tion of the permit appeal process described
above."6 The letter
described the appeal process and made it
clear that the deci-
sion of the EAB would represent the consummation
of the
decision-making process on the issue of whether
the City's
application for renewal of its section 301(h)
modified permit
should be governed by OPRA or by the regulations
applicable
to all dischargers. Until the administrative
appeal process is
completed, judicial review is premature.
See Sierra Club v.
United States Nuclear Regulatory Comm'n,
825 F.2d 1356,
1362 (9th Cir. 1987) ("We will not entertain
a petition where
pending administrative proceedings or further
agency action
might render the case moot and judicial review
completely
unnecessary."). Cf. Ontario v. EPA, 912 F.2d
1525, 1532
(D.C. Cir. 1990) (agency action was final
because it was "un-
ambiguous and devoid of any suggestion that
it might be sub-
ject to subsequent revision"); Ciba-Geigy
Corp. v. EPA, 801
_________________________________________________________________
6 Although an agency's own characterization
of its action as non-final is
not necessarily determinative, it provides
an indication of the nature of the
action. See Blincoe v. FAA, 37 F.3d 462,
464 (9th Cir. 1994) (per curiam).
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F.2d 430, 436-37 (D.C. Cir. 1986) (agency
action was final
because "[n]ot only did the statement of
position admit of no
ambiguity, but it gave no indication that
it was subject to fur-
ther agency consideration or possible modification.")
(internal
citation omitted).7
[4] The EPA's letter also fails to satisfy
the second require-
ment of the Bennett v. Spear finality test
-- that the agency
action impose an obligation, deny a right
or fix some legal
relationship. See Bennett, 520 U.S. at 178;
Association of Am.
Med. Colleges v. United States, 217 F.3d
770, 780-81 (9th
Cir. 2000). The EPA's letter simply responds
to the City's
request for "assistance" on the issue of
whether it can expect
the EPA to apply OPRA's conditions to its
application for
renewal of its section 301(h) modified permit.
The letter only
"encourage[s]" the City to submit its application
in accor-
dance with the EPA's interpretation of OPRA
and informs the
City that it can raise the OPRA issue on
appeal to the EAB
if it chooses to complete the application
in accordance with its
own interpretation of OPRA.
C. Conclusion
Because the letter fails the finality test
of Bennett v. Spear,
it does not constitute "final agency action"
required for judi-
cial review under the Administrative Procedure
Act, 5 U.S.C.
S 704. The district court lacked subject
matter jurisdiction.
We need not consider the EPA's other challenges
to subject
matter jurisdiction. The preliminary injunction
is vacated and
this case is remanded to the district court
with instructions to
dismiss the City's underlying action.
_________________________________________________________________
7 The EPA also argues that the letter represents
only the "regional
administrator's opinion." This argument is
unpersuasive. The letter clearly
states that "After a thorough review of this
question with the Offices of
Regional Counsel and General counsel, EPA
interprets the OPRA condi-
tions to continue in effect upon application
for renewal of the City's sec-
tion 301(h) modified permit." (Emphasis added.)
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Issuance of this court's mandate is stayed
for thirty days
from the filing of this opinion, and in the
event any petition
for rehearing is filed, issuance of the mandate
is further stayed
until a decision on all petitions for rehearing
becomes final.
VACATED and REMANDED.
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