Filed June 13, 2017
Case 1:17-cv-00817-KBJ Document 18 Filed 06/13/17 Page 20 of 25 15 160. It is well settled in this Circuit that jurisdiction to consider an agency action pursuant to a specialized judicial review statute, like 33 U.S.C. § 1369(b)(1), encompasses review of related agency action taken under another statute, even if independent review of such action would be in the district court pursuant to the APA and the federal question statute. See, e.g., City of Tacoma, Washington v. F.E.R.C., 460 F.3d 53, 76 (D.C. Cir. 2006); accord Defenders of Wildlife v. EPA, 420 F.3d 946, 956 (9th Cir. 2005) (in review of EPA decision, court of appeals has jurisdiction to consider adequacy of BiOp on which EPA relied), rev’d and remanded, Nat’l Ass’n of Home Builders v. Defs.
Filed July 24, 2015
See Stay Motion at 5. Defendants also suggest that a stay is appropriate because multiple parties have filed petitions for review of the Final Rule in circuit courts of appeals pursuant to 33 U.S.C. § 1369(b)(1), which grants review of an EPA action “promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title.” See Stay Motion at 7.
Filed September 13, 2012
Just as in Brown, this Court has jurisdiction to hear Plaintiff’s contentions that the Defendant is violating the CWA’s prohibition on unpermitted discharges of polluted storm water and that EPA regulations, properly construed, do not exempt the Defendant from CWA regulation. See also Forsgren, 309 F.3d at 1190 (rejecting argument that the Court lacked jurisdiction because the plaintiff environmental group was challenging the defendant Forest Service’s reliance on an EPA regulation that, as interpreted by EPA, would have exempted the defendant’s discharges from NPDES regulation without complying with 33 U.S.C. § 1369(b), noting: “However, we do not reach the Forest Service’s arguments regarding section 1369(b) because we do not invalidate the regulation. Rather, we reject the Forest Service’s interpretation of the regulation and give it a construction consistent with its administrative history, case law, and the governing statute”).
Filed August 2, 2012
CWA 4 Section 509(b)(2) expressly provides that agency action reviewable under Section 509(b)(1) “shall not be subject to judicial review in any civil or criminal proceeding for enforcement.” 33 U.S.C. § 1369(b)(2). Setting aside ERF’s unsupported contention that a regulation can be challenged in a citizen suit against a private party, it is long-established that Section 509(b)(1) provides the exclusive mechanism for challenging EPA rules excluding sources from the NPDES program.
Filed March 9, 2007
It involved a challenge to the issuance by EPA of an NPDES permit under CWA section 402, 33 U.S.C. § 1342, which is addressed instead in subsection F of section 509(b)(1), vesting jurisdiction in the courts of appeal to review EPA’s action “in issuing or denying any permit under section [402].” 33 U.S.C. § 1369(b)(1)(F) (emphasis added). The language of subsection F thus contrasts starkly to subsection E, which covers only the “promulgation or approval” of limitations under certain provisions,20 and not the rejection thereof.
Filed May 10, 2017
See 33 U.S.C. § 1369(b)(1)(F); 40 C.F.R. §§ 124.19(a)(1), 124.19(a)(3), 124.19(o); SCAP v. EPA, 853 F.3d at 1083 n.4; Whitman, 242 F.3d at 1101. The Complaint only identifies one NPDES permit: the 2012 Orange County Sanitation District permit jointly issued by EPA and California.
Filed October 3, 2016
Case 2:15-cv-00264-SMJ Document 23 Filed 10/03/16 DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND OPPOSTION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 prohibits judicial review of agency permitting decisions in civil enforcement proceedings in the District Courts. 33 U.S.C. § 1369(b)(2). Plaintiffs cannot evade these jurisdictional requirements by dismissing statements in EPA’s letter as contrary to law and not worthy of deference.
Filed October 4, 2012
Because this is an enforcement action, ERF has no such opportunity. Aside from formal compliance with 33 U.S.C. § 1369, at a minimum, rule challenges require agency participation. ERF ignores that CWA was modified by the Water Quality Act of 1987 to overrule earlier decision that held that CWA required every discharge to be permitted.
Filed September 13, 2012
Even if it did not, federal and state guidance materials conclusively establish that “primary” means “first and foremost” not “on occasion.” ERF cannot establish that tire-tracking resulted in discharges of pollutants to waters of the United States because ERF’s experts have admitted that they have no under 33 U.S.C. § 1369, and not in a citizen suit against a private party. See Scott v. Hammond, 741 F.2d 992, 995 (7th Cir. 1984) (stating also that a proper citizens’ suit under CWA might arise against EPA to compel EPA to promulgate a substitute standard after EPA has disapproved of a state standard and the state has refused to act); Natural Resources Def.
Filed March 28, 2007
Under CWA section 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E), any challenge to an EPA action “in approving or promulgating an effluent limitation or other limitation” for point sources under CWA sections 301 or 306 can be brought solely in the courts of appeals and, generally, only within 120 days after the action. CWA section 509(b), 33 U.S.C. § 1369(b). Because CWA section 316(b) is to be implemented in conjunction with limitations imposed under sections 301 and 306, Riverkeeper has previously challenged EPA regulations establishing requirements for cooling water intake structures at new facilities (the “Phase I” regulations) and at larger electric utility generating stations that account for over 90 percent of cooling water withdrawals (the “Phase II” regulations) in the court of appeals, and indeed there was no dispute that the court of appeals has exclusive jurisdiction over those challenges.2 See Riverkeeper I, 358 F.3d at 183-84; Riverkeeper, Inc. v. EPA, 475 F.3d 83, 95 (2d Cir. 2007) (“Riverkeeper II”).