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San Diego, City of v. Whitman

ELR Citation: 31 ELR 20529
Nos. No. 00-56561, 242 F.3d 1097/(9th Cir., 03/13/2001)

The court holds that a U.S. Environmental Protection Agency (EPA) letter responding to a city's request for assistance as to whether the Ocean Pollution Reduction Act's (OPRA's) conditions would apply to the city's renewal of its Clean Water Act (CWA) §301(h) modified permit for its publicly owned wastewater treatment facility was not final agency action, and, therefore, a district court lacked subject matter jurisdiction to review the case. Congress passed the OPRA to allow the city to submit an application for a §301(h) codified permit after the deadline had passed, provided that certain conditions were met. The city obtained the permit and when renewal time came near, wrote to EPA asking whether the OPRA's conditions would apply to the permit renewal. EPA responded in the affirmative and urged the city to apply for permit renewal on time, stating that EPA's decision was subject to administrative review. The city instead brought suit against EPA claiming that the OPRA's conditions were only applicable to the original §301(h) permit application and that EPA's letter constituted final agency action.

The court first holds that the letter was not final agency action. First, the letter did not mark the consummation of the Agency's decisionmaking process. That process will not even begin until the city files its application for permit renewal. If and when the city is aggrieved by EPA's decision regarding its application, the city's recourse is to appeal to the Environmental Appeals Board (EAB), and it is the EAB's decision that will constitute the consummation of the Agency's decisionmaking process. Second, the letter did not impose an obligation, deny a right, or fix some legal relationship. The letter was merely a response to the city's request for assistance. Therefore, because the letter was not final agency action, the district court lacked jurisdiction to review the case.

Counsel for Plaintiff
John R. Reese
McCutchen, Doyle, Brown & Enersen
355 S. Grand Ave., Ste. 4400, Los Angeles CA 90071
(213) 680-6400

Counsel for Defendants
Martin F. McDermott
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Thompson, J. Before Pregerson and Canby, JJ.