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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 21, 2003 Decided June 20, 2003
No. 02-1123 & No. 02-1124
FRIENDS OF THE EARTH,
PETITIONER
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND
CHRISTINE TODD WHITMAN, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
On Petitions for Review of Orders of the
Environmental Protection Agency
Howard I. Fox argued the cause for the petitioner. Keri
N. Powell was on brief.
Scott J. Jordan, Attorney, United States Department of
Justice, argued the cause for the respondent. Carol A.
Siciliano, Attorney, United States Environmental Protection
Agency, was on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Alexandra D. Dunn, Stewart T. Leeth and David E. Evans
were on brief for amici curiae Association of Metropolitan
Sewerage Agencies and DC Water and Sewer Authority in
support of the respondent.
Before: GINSBURG, Chief Judge, and EDWARDS and
HENDERSON, Circuit Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: Petitioner
Friends of the Earth (FOE) seeks review of the decision by
the Environmental Protection Agency (EPA) to issue limits—
known as total maximum daily loads (TMDLs)—on certain
pollutants discharged into the upper and lower Anacostia
River in the District of Columbia. FOE claims that the
Anacostia River TMDLs for biochemical oxygen demand
(BOD) and total suspended solids (TSS) violate the Clean
Water Act (CWA or Act), 33 U.S.C. §§ 1251 et seq., and its
implementing regulations in several respects.1 EPA chal-
lenges these contentions on the merits and, in addition,
asserts that this court lacks original jurisdiction to review this
sort of agency action. We agree with EPA that we lack
jurisdiction and, accordingly, dismiss the petitions for review
and transfer the case to the district court for consideration
under the judicial review provisions of the Administrative
Procedure Act (APA). See 5 U.S.C. §§ 701–706.
I.
The Congress adopted the CWA in 1972 ‘‘to restore and
maintain the chemical, physical, and biological integrity of the
Nation’s waters.’’ 33 U.S.C. § 1251(a). In furtherance of
this goal, the Act requires point sources2 of pollution to meet
1 For the sake of both clarity and consistency, we refer to the
CWA’s codified section numbers rather than the section numbers
used in the Act.
2 A ‘‘point source’’ is ‘‘any discernible, confined and discrete
conveyance,’’ such as a pipe, tunnel or well, ‘‘from which pollutants
are or may be discharged.’’ 33 U.S.C. § 1362(14).
3
certain technology-based effluent limitations.3 Id.
§ 1311(b)(1)(A)-(B). ‘‘[The CWA’s] effluent limitation ap-
proach focuses on regulating, through the issuance of permits
and required technology-based abatement methods, the
amount of pollutants discharged by a pollution source.’’ Nat-
ural Res. Def. Council, Inc. v. Muszynski, 268 F.3d 91, 94 (2d
Cir. 2001) (internal quotations omitted). Because the Con-
gress recognized that the effluent limitation approach could
not achieve the Act’s objectives alone, however, the CWA also
employs a water-quality-based approach to controlling water
pollution, requiring states to adopt water quality standards4
sufficient ‘‘to protect the public health or welfare, enhance the
quality of water and serve the purposes of this chapter.’’ 33
U.S.C. § 1313(c)(2)(A). If a state does not set water quality
standards—or if EPA determines that a state’s standards do
not meet the requirements of the Act—EPA promulgates the
water quality standards for the state. Id. § 1313(b), (c)(3)-
(4).
If the required effluent limitations are ‘‘not stringent
enough to implement [the] water quality standard[s] applica-
ble’’ to a waterbody, the CWA requires that the state ‘‘estab-
lish a priority ranking for such waters, taking into account
the severity of the pollution and the uses to be made of such
waters.’’ Id. § 1313(d)(1)(A). For waterbodies so classified,
the state is required to establish the ‘‘total maximum daily
load’’ for pollutants identified by EPA as suitable for TMDL
calculation. Id. § 1313(d)(1)(C). The state must establish
3 ‘‘The term ‘effluent limitation’ means any restriction estab-
lished by a State or the [EPA] Administrator on quantities, rates,
and concentrations of chemical, physical, biological, and other con-
stituents which are discharged from point sources into navigable
waters, the waters of the contiguous zone, or the ocean, including
schedules of compliance.’’ 33 U.S.C. § 1362(11).
4 A ‘‘water quality standard’’ specifies a waterbody’s ‘‘designat-
ed uses’’ and ‘‘water quality criteria,’’ taking into account the
water’s ‘‘use and value for public water supplies, propagation of fish
and wildlife, recreational purposes, and agricultural, industrial, and
other purposes,’’ as well as its ‘‘use and value for navigation.’’ 33
U.S.C. § 1313(c)(2).
4
each TMDL ‘‘at a level necessary to implement the applicable
water quality standards with seasonal variations and a margin
of safety which takes into account any lack of knowledge
concerning the relationship between effluent limitations and
water quality.’’ Id. Thus, a TMDL represents the maximum
amount of pollutant ‘‘loadings’’ that a waterbody may take in
without violating applicable water quality standards, taking
into account both seasonal variations and a margin of safety.5
Each state must then submit its ‘‘priority list’’ and the
corresponding TMDLs for EPA approval. Id. § 1313(d)(2).
The District of Columbia is considered a ‘‘state’’ for purposes
of the CWA. Id. § 1362(3).
Because it violates several of the water quality standards
established by the District and approved by EPA,6 the Ana-
costia River has been identified for TMDL development
pursuant to section 1313(d)(1)(A). Two of the District’s water
quality standards are at issue here: the dissolved oxygen
standard7 and the turbidity standard.8 The former sets both
5 EPA’s regulations define the TMDL for a pollutant as the
sum of (1) the ‘‘wasteload allocation’’ for point source pollution; (2)
the ‘‘load allocation’’ for non-point source or natural background
pollution; and (3) a margin of safety. See 40 C.F.R. § 130.2(g)-(i).
6 For the purpose of water quality standards, the District has
classified the Anacostia River for the following beneficial uses:
primary contact recreation (Class A); secondary contact recreation
and aesthetic enjoyment (Class B); protection and propagation of
fish, shellfish and wildlife (Class C); protection of human health
related to consumption of fish and shellfish (Class D); and naviga-
tion (Class E). D.C. MUN. REGS. tit. 21, § 1101.1–2.
7 ‘‘Dissolved oxygen is a basic requirement for a healthy aquatic
ecosystem.’’ EPA, NATIONAL WATER QUALITY INVENTORY: 1998 RE-
PORT TO CONGRESS 17 (Aug. 1998) (WATER QUALITY INVENTORY),
available at http://www.epa.gov/305b/98report/index.html; see also
Natural Res. Def. Council, Inc. v. EPA, 656 F.2d 768, 771 (D.C. Cir.
1981) (‘‘The decomposition of organic matter consumes oxygen, and
excessive oxygen demands may deprive fish, shellfish and aquatic
wildlife of dissolved oxygen necessary to life.’’). Dissolved oxygen
violations can be traced to ‘‘biochemical oxygen demand’’ or ‘‘BOD,’’
a measure of ‘‘pollutants which, when they decompose, deplete
5
daily and hourly minimum oxygen levels for the District’s
waters, see D.C. MUN. REGS. tit. 21, § 1104.6, while the latter
establishes the District’s standards relating to water clarity,
see id. §§ 1104.1, 1104.7, 1105.5. In December 2001, the EPA
approved a TMDL—submitted by the District—addressing
the dissolved oxygen standard. Shortly thereafter, in March
2002, EPA established a second TMDL addressing the Dis-
trict’s turbidity standard. Upon the issuance of EPA’s final
decisions, FOE petitioned this court for review of both
TMDLs, claiming that they are inadequate to achieve the
District’s water quality standards.
II.
EPA has moved to dismiss FOE’s petitions, arguing that
we lack subject matter jurisdiction under 33 U.S.C.
§ 1369(b)(1) to review the approval or establishment of
TMDLs made pursuant to section 1313(d). Emphasizing that
actions taken under section 1313 are not included among the
listed actions expressly made directly reviewable by the
courts of appeals under section 1369(b)(1), EPA maintains
that challenges to the approval or establishment of TMDLs
must be brought—if at all—in district court under the APA.
FOE reads the CWA’s jurisdictional provision in a decidedly
different fashion, arguing that EPA’s approval and establish-
ment of TMDLs fall within the ‘‘plain scope’’ of section
1369(b)(1)(E). Br. for Pet’r at 14. In its view, both the plain
terms of the Act as well as United States Supreme Court and
D.C. Circuit precedent compel the conclusion that TMDLs
are ‘‘effluent limitation[s] or other limitation[s] under section
oxygen necessary to support aquatic life.’’ Am. Meat Inst. v. EPA,
526 F.2d 442, 447 (7th Cir. 1975). When BOD increases in a
waterbody, dissolved oxygen concentrations decrease.
8 ‘‘Turbidity is an optical property of very small particles that
scatter light and reduce clarity in waterbodies.’’ WATER QUALITY
INVENTORY at 21. Turbidity violations can be traced to ‘‘total
suspended solids’’ or ‘‘TSS,’’ which are ‘‘particles of organic and
inorganic matter suspended in the water or floating on its surface.’’
Am. Meat Inst., 526 F.2d at 447.
6
1311,’’ 33 U.S.C. § 1369(b)(1)(E), and that, as a result, direct
review of EPA’s actions comes within our jurisdiction. We
are not persuaded by the petitioner’s argument.
‘‘A federal court’s subject-matter jurisdiction, constitution-
ally limited by [A]rticle III, extends only so far as [the]
Congress provides by statute.’’ Commodity Futures Trading
Comm’n v. Nahas, 738 F.2d 487, 492 (D.C. Cir. 1984) (citing
Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 456
U.S. 694, 701–02 (1982)). Our original jurisdiction to review
EPA actions taken pursuant to the CWA is governed by 33
U.S.C. § 1369(b)(1).9 Of relevance here, section 1369(b)(1)(E)
provides for direct review in the court of appeals of EPA
action ‘‘in approving or promulgating any effluent limitation
or other limitation under section 1311, 1312, 1316, or 1345 of
this title.’’ 33 U.S.C. § 1369(b)(1)(E). Although EPA’s
authority to approve and establish TMDLs is provided for
under section 1313—a statutory provision not among those
listed in section 1369(b)(1)(E)—FOE argues that the plain
terms of the Act compel the conclusion that TMDLs consti-
tute ‘‘effluent limitation[s] or other limitation[s] under section
9 Section 1369(b)(1) grants original jurisdiction to the courts of
appeals as follows: ‘‘Review of the [EPA] Administrator’s action (A)
in promulgating any standard of performance under section 1316 of
this title, (B) in making any determination pursuant to section
1316(b)(1)(C) of this title, (C) in promulgating any effluent standard,
prohibition, or pretreatment standard under section 1317 of this
title, (D) in making any determination as to a State permit program
submitted under section 1342(b) of this title, (E) in approving or
promulgating any effluent limitation or other limitation under sec-
tion 1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying
any permit under section 1342 of this title, and (G) in promulgating
any individual control strategy under section 1314(l) of this title,
may be had by any interested person in the Circuit Court of
Appeals of the United States for the Federal judicial district in
which such person resides or transacts business which is directly
affected by such action upon application by such person. Any such
application shall be made within 120 days from the date of such
determination, approval, promulgation, issuance or denial, or after
such date only if such application is based solely on grounds which
arose after such 120th day.’’ 33 U.S.C. § 1369(b)(1).
7
1311.’’ Id. (emphasis added).10 However, ‘‘[i]n view of the
specificity of the [CWA’s] judicial review provision, [the]
omission [of section 1311] presents [FOE] with considerable
difficulty in establishing jurisdiction in this court.’’ Bethle-
hem Steel Corp. v. EPA, 538 F.2d 513, 514 (2d Cir. 1976)
(appellate court lacked jurisdiction to review EPA action,
taken pursuant to section 1313, partially approving New
York’s thermal water quality standards); see also Original
Honey Baked Ham Co. of Ga. v. Glickman, 172 F.3d 885, 887
(D.C. Cir. 1999) (‘‘A statute listing the things it does cover
exempts, by omission, the things it does not list.’’).
The statutory basis for FOE’s argument is section
1311(b)(1)(C), which requires that there be achieved, ‘‘not
later than July 1, 1977, any more stringent limitation, includ-
ing those necessary to meet water quality standards, treat-
ment standards, or schedules of compliance TTT required to
implement any applicable water quality standard established
pursuant to this chapter.’’ 33 U.S.C. § 1311(b)(1)(C). As-
serting that TMDLs are both ‘‘more stringent limitation[s]’’
and limitations ‘‘necessary to meet water quality standards,’’11
id., FOE maintains that TMDLs are thus properly considered
limitations ‘‘under section 1311,’’ id. § 1369(b)(1)(E). It
therefore reasons that section 1369(b)(1)(E) provides the
10 EPA does not contest FOE’s assertion that a TMDL consti-
tutes an ‘‘effluent limitation or other limitation’’ within the meaning
of section 1369(b)(1)(E). See Br. for Resp’t at 14–29; see also
Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1310 (9th Cir.
1992) (‘‘EPA concedes that [a] total maximum daily load is an
effluent limitation.’’). Accordingly, the only question before us is
whether TMDLs constitute effluent limitations or other limitations
‘‘under section 1311.’’ 33 U.S.C. § 1369(b)(1)(E).
11 As previously discussed, see supra p. 3, states must establish
TMDLs for ‘‘those waters TTT for which the effluent limitations
required by [section 1311] are not stringent enough to implement
any water quality standard applicable to such waters.’’ 33 U.S.C.
§ 1313(d)(1)(A) (emphasis added). Moreover, they must ‘‘be estab-
lished at a level necessary to implement the applicable water
quality standards.’’ Id. § 1313(d)(1)(C) (emphasis added).
8
courts of appeals with original jurisdiction to review EPA’s
approval and establishment of TMDLs.
As EPA correctly observes, however, the courts of appeals
have consistently held that the express listing of specific EPA
actions in section 1369(b)(1) precludes direct appellate review
of those actions not so specified. See, e.g., City of Baton
Rouge v. EPA, 620 F.2d 478, 480 (5th Cir. 1980) (‘‘Thus, the
rule is clear: the [c]ourts of [a]ppeals have jurisdiction for
direct review only of those EPA actions specifically enumerat-
ed in 33 U.S.C. § 1369(b)(1).’’); Bethlehem Steel, 538 F.2d at
517 (‘‘[T]he complexity and specificity of section [1369(b)(1)]
in identifying what actions of EPA under the [CWA] would be
reviewable in the courts of appeals suggests that not all such
actions are so reviewable.’’); see also Minn. Center for Envtl.
Advocacy v. EPA, No. 03–1636 (8th Cir. April 28, 2003)
(dismissing challenge to EPA’s approval of TMDL for want of
jurisdiction); Alcoa, Inc. v. EPA, No. 02–13562–II (11th Cir.
Oct. 16, 2002) (same). We agree with our sister circuits:
original jurisdiction over EPA actions not expressly listed in
section 1369(b)(1) lies not with us, but with the district court.
Indeed, addressing the precise issue raised here, the Ninth
Circuit held in Longview Fibre Co. v. Rasmussen, 980 F.2d
1307 (9th Cir. 1992), that it lacked original jurisdiction to
review TMDLs established by EPA under section 1313(d).12
12 The Ninth Circuit also addressed whether the list of pro-
visions in section 1369(b)(1)(E) modifies the entire phrase ‘‘any
effluent limitation or other limitation’’ or simply the closer ante-
cedent, i.e., ‘‘other limitation.’’ Longview, 980 F.2d at 1310–11.
Although it noted that the rules of syntax favor the latter con-
struction, id. at 1311 (citing 2A SINGER, SUTHERLAND—STATUTORY
CONSTRUCTION § 47.33 (5th ed. 1992)), the Ninth Circuit adopted
the former construction, emphasizing that one of the listed provi-
sions—section 1312—deals solely with effluent limitations, id.
Reasoning that the syntactically favored construction would pro-
duce an absurdity—‘‘ ‘non-effluent limitations under an effluent
limitations statute’ ’’—the Ninth Circuit concluded that the Con-
gress ‘‘intended the modifier to apply both to ‘effluent’ and to
‘other’ limitations.’’ Id. (emphasis added). Because FOE does
not argue that the list of provisions in section 1369(b)(1)(E) mod-
9
In doing so, the Ninth Circuit specifically rejected the statu-
tory argument—also advanced by FOE here—that section
1311(b)(1)(C) encompasses section 1313 effluent limitations
such as TMDLs. Id. at 1311–14. Emphasizing that section
1311’s oblique reference to section 1313 is contained within a
‘‘[t]imetable for achievement of objectives,’’ requiring the
achievement of certain limitations ‘‘not later than July 1,
1977,’’ 33 U.S.C. § 1311(b)(1), the Ninth Circuit concluded
that section 1311(b)(1)(C) is insufficient ‘‘to get a section 1313
[TMDL] TTT into an appellate statute designating [review of]
section 1311 [actions],’’ Longview, 980 F.2d at 1312.
The Ninth Circuit relied on the principle expressio unius
est exclusio alterius to conclude that ‘‘[t]he specificity and
precision of section 1369’’ indicates a congressional intent ‘‘to
exclude the unlisted section 1313’’ from direct appellate court
review. Id. at 1313; see also Bethlehem Steel, 538 F.2d at
517 (‘‘If [the] Congress had so intended, it could have simply
provided that all EPA action under the statute would be
subject to review in the courts of appeals, rather than specify-
ing particular actions and leaving out others.’’). ‘‘It would be
an odd use of language,’’ the Ninth Circuit observed, ‘‘to say
‘any effluent limitation or other limitation under section 1311,
1312, 1316, or 1345 of this title’ in [section] 1369(b)(1)(E) if the
references to particular sections were not meant to exclude
others.’’ Longview, 980 F.2d at 1313. Noting, for example,
that ‘‘review of a ‘standard of performance under section
1316’ is established by a different subsection from review of a
‘determination pursuant to section 1316(b)(1)(C),’ ’’ the Ninth
Circuit reasoned that the ‘‘fine’’ distinctions drawn by section
1369(b)(1) rendered the ‘‘negative pregnant TTT all the more
obvious.’’ Id.
Other structural aspects of the CWA also undermine
FOE’s broad reading of section 1369(b)(1)(E).13 To begin
ifies only ‘‘other limitations,’’ we need not delve into matters of
syntax here.
13 Relying on the title of section 1311 (‘‘Effluent limitations’’)
and the fact that the CWA defines an effluent limitation as a
restriction on discharges ‘‘from point sources,’’ 33 U.S.C.
10
with, the Congress differentiated between section 1311 ef-
fluent limitations and section 1313 effluent limitations
throughout the CWA. See, e.g., 33 U.S.C. § 1342(o)(1) (‘‘In
the case of effluent limitations established on the basis of
section 1311(b)(1)(C) or section 1313(d) or (e) of this title, a
permit may not be renewed, reissued, or modified to contain
effluent limitations which are less stringent than the compa-
rable effluent limitations in the previous permit except in
compliance with section 1313(d)(4) of this title.’’) (emphasis
added); see also id. § 1326(c) (providing for period of protec-
tion from more stringent effluent limitations with respect to
thermal component of discharge if, inter alia, point source
‘‘meets effluent limitations established under section 1311 of
this title or, if more stringent, effluent limitations established
under section 1313 of this title’’) (emphasis added). The
distinction drawn by such provisions ‘‘suggests that even
where [the] Congress regarded a section 1313 device as an
‘effluent limitation,’ nevertheless it did not regard it as the
same thing as a section 1311 effluent limitation.’’ Longview,
980 F.2d at 1312.
Moreover, as EPA emphasizes on review, FOE’s reading of
section 1311(b)(1) renders several provisions of section
1369(b)(1) superfluous. Under its reading of section
1311(b)(1), for example, effluent limitations under section
1312—water quality related effluent limitations—would con-
stitute ‘‘effluent limitation[s] or other limitation[s] under sec-
tion 1311’’ because they are limitations ‘‘necessary to meet
water quality standards.’’ Yet, as EPA correctly observes,
section 1369(b)(1) expressly provides for original appellate
court review of section 1312 actions. 33 U.S.C.
§ 1362(11), EPA argues that TMDLs should not be considered
effluent limitations ‘‘under section 1311’’ because the latter apply to
waters impaired by both point and non-point sources. This argu-
ment suffers from several flaws, including a failure to recognize that
section 1369(b)(1)(E) refers to ‘‘any effluent limitation or other
limitation under section 1311.’’ Id. § 1369(b)(1)(E) (emphasis add-
ed). Given that TMDLs constitute ‘‘other limitation[s]’’ within the
meaning of section 1369(b)(1)(E), we reject EPA’s ‘‘point source’’
argument.
11
§ 1369(b)(1)(E). Thus, if accepted, FOE’s reading would
render section 1369(b)(1)(E)’s specific reference to section
1312 duplicative and unnecessary. In our view, the better
reading of the statute interprets the phrase ‘‘under section
1311’’ to cover a specific set of EPA actions and, as a result,
to afford meaning to section 1369(b)(1)(E)’s express reference
to section 1312.14 See, e.g., Asiana Airlines v. FAA, 134 F.3d
393, 398 (D.C. Cir. 1998) (‘‘A cardinal principle of interpreta-
tion requires us to construe a statute so that no provision is
rendered inoperative or superfluous, void or insignificant.’’)
(internal quotations omitted).
Despite these compelling statutory arguments, FOE urges
us not to follow the Ninth Circuit’s rationale in Longview,
citing contrary precedent from both this circuit and the
Supreme Court. It relies chiefly on Public Utility District
No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S.
700 (1994) (PUD No. 1), a case decided nearly eighteen
months after the Ninth Circuit decided Longview.15 In PUD
14 FOE’s reading of section 1311 would likewise render super-
fluous section 1369(b)(1)(C)’s express reference to section 1317.
Under its reasoning, section 1311(b)(1)(A)’s specific reference to
‘‘any requirements under section 1317 of this title’’ and section
1311(b)(1)(C)’s oblique reference to limitations necessary to meet
‘‘treatment standards’’ would convert any limitations under section
1317, which addresses toxic and pretreatment effluent standards,
into limitations ‘‘under section 1311,’’ thereby subjecting those
limitations to original appellate court review. As with the section
1312 actions discussed in the text, however, EPA actions under 1317
are expressly made subject to direct review in the courts of appeals
under section 1369(b)(1). 33 U.S.C. § 1369(b)(1)(C) (providing for
direct appellate court review of actions ‘‘in promulgating any ef-
fluent standard, prohibition, or pretreatment standard under sec-
tion 1317 of this title’’).
15 Friends of the Earth also relies on two decisions of this
court, American Iron & Steel Institute v. EPA, 115 F.3d 979 (D.C.
Cir. 1997), and Natural Resources Defense Council, Inc. v. EPA,
673 F.2d 400 (D.C. Cir.), cert. denied, 459 U.S. 879 (1982), to
support its broad reading of section 1369(b)(1). Its reliance is
misplaced, however, as both decisions involved EPA actions ex-
12
No. 1, the Supreme Court considered whether a state had the
authority under 33 U.S.C. § 1341 to condition its water
quality certification on a minimum stream flow requirement.16
Id. at 710. Under section 1341(d), a state must ensure that
its water quality certifications comply ‘‘with any applicable
effluent limitations and other limitations, under section 1311
or 1312 of this title,’’ certain other specified provisions of the
CWA, ‘‘and with any other appropriate requirement of State
law.’’ 33 U.S.C. § 1341(d) (emphasis added).
Although the State of Washington imposed the minimum
stream flow requirement at issue to ensure compliance with
water quality standards adopted pursuant to section 1313—a
statutory provision not among those listed in section
1341(d)—the Supreme Court concluded that ‘‘ensuring com-
pliance with [section 1313] is a proper function of the [section
1341] certification.’’ PUD No. 1, 511 U.S. at 712. The
Supreme Court based its decision on the fact that section
1341(d) allows states to impose limitations to ensure compli-
ance with section 1311. Id. at 712–13. Noting that ‘‘[s]ection
[1311] in turn incorporates [section 1313] by reference,’’ id. at
713 (citing 33 U.S.C. § 1311(b)(1)(C); H.R. REP. No. 95–830,
at 96 (1977), reprinted in 1977 U.S.C.C.A.N. 4326, 4471), the
Supreme Court held that ‘‘state water quality standards
adopted pursuant to [section 1313] are among the ‘other
limitations’ with which a [s]tate may ensure compliance
through the [section 1341] certification process,’’ id. ‘‘This
pressly specified in section 1369(b)(1). See Am. Iron & Steel Inst.,
115 F.3d at 985–86 (exercising jurisdiction over water quality guid-
ance document issued by EPA where (1) portion of guidance
document contained effluent limitations under section 1311 and (2)
remainder fell within ancillary jurisdiction of court); Natural Res.
Def. Council, 673 F.2d at 405 n.15 (exercising jurisdiction over
Consolidated Permit Regulations where EPA promulgated regula-
tions under section 1311).
16 Section 1341 requires states to provide a water quality
certification before a federal license or permit can be issued for
activities that may result in any discharge into intrastate navigable
waters. 33 U.S.C. § 1341.
13
interpretation is consistent,’’ the Supreme Court observed,
‘‘with EPA’s view of the statute.’’ Id.
Not surprisingly, FOE places particular emphasis on the
Supreme Court’s statement in PUD No. 1 that ‘‘[s]ection
[1311] in turn incorporates [section 1313] by reference.’’ Id.
Asserting that ‘‘[l]ike [section 1341(d)], [section 1369(b)(1)(E)]
expressly references [section 1311], which ‘‘ ‘in turn, incorpo-
rates [section 1313] by reference,’ ’’ FOE argues that TMDLs
adopted ‘‘ ‘pursuant to [section 1313] are among the ‘‘other
limitations’’ ’ within this [c]ourt’s [section 1369(b)(1)(E)] re-
view jurisdiction.’’ Br. for Pet’r at 17 (quoting PUD No. 1,
511 U.S. at 713).
In effect, FOE’s argument asks us to depart from firmly
established circuit precedent—not to mention the plain lan-
guage of the CWA—on the basis of a single isolated state-
ment appearing in the Supreme Court’s opinion in PUD No.
1, without taking into consideration the basis and context of
that statement. This we decline to do. As EPA correctly
observes, the Supreme Court supported its ‘‘incorporated by
reference’’ statement with a citation to the legislative history
of the 1977 CWA amendments. PUD No. 1, 511 U.S. at 713
(quoting H.R. REP. No. 95–830, at 96 (‘‘Section [1313] is
always included by reference where section [1311] is list-
ed.’’)).17 Inasmuch as the amendment which is the subject of
the cited House Conference Report involved section 1341, the
Supreme Court’s reliance on this legislative history is hardly
surprising.18
17 As earlier noted, the Supreme Court also cites section
1311(b)(1)(C) in support of its conclusion that that section 1311
‘‘incorporates’’ section 1313 ‘‘by reference.’’ PUD No. 1, 511 U.S. at
713. The Supreme Court fails to explain, however, how section
1311(b)(1)(C) is to be read so as to lead to this conclusion. See id.
18 See An Act to amend the Federal Water Pollution Control
Act, Pub. L. No. 95–217, § 64, 91 Stat. 1566, 1599 (1977) (‘‘Section
401 of the [CWA] is amended by inserting ‘303,’ after ‘302,’ in the
phrase ‘sections 301, 302, 306, and 307 of this Act’, and in the phrase
‘section 301, 302, 306, or 307 of this Act’, each time these phrases
appear.’’). ‘‘Translating the Act references to [United States] Code
14
The legislative history of the 1977 CWA amendments sheds
no light, however, on the proper scope of section 1369(b)(1),
enacted in 1972. As the Ninth Circuit explained in Longview,
it is irrelevant to the question at hand:
This legislative history does not persuade us, be-
cause it is not part of the law, was written long after
the law was passed, and seems inconsistent with the
law passed when it was written. This is 1977 ‘histo-
ry’ about a 1972 law. Instead of giving us a window
into the thinking of the legislators who wrote the
bill, it gives us the advice of someone on a House
Conference Committee staff five years after section
1369 was promulgated about how we should con-
strue a law passed by an earlier Congress under a
different president in a different political era.
Longview, 980 F.2d at 1311–12 (emphasis in original). Not-
ing that the 1977 Act amended section 1341, not section 1369,
and that section 1369(b)(1)(E) lists statutory provisions other
than those listed in section 1341, the Ninth Circuit further
explained that ‘‘[t]here would be no point in passing the
referenced section of the 1977 law if the history were correct,
and no point in writing the history if the law said what [the]
Congress intended.’’ Id. at 1312.
To be sure, the Supreme Court’s decision in PUD No. 1
involved section 1341(d), a provision that the Congress did not
amend in 1977. Id. at 711–13. But this fact does not render
the legislative history of the 1977 CWA amendments any
more applicable to section 1369(b)(1). Moreover, we are loath
to part company with our sister circuits on the basis of a
single sentence in the Supreme Court’s PUD No. 1 opinion,
particularly since that opinion involved a substantive regula-
tory provision of the CWA—section 1341(d)—and not the
jurisdictional provisions of section 1369(b)(1).19 See Cheng
references yields, ‘Section 1341 [of the CWA] is amended by
inserting ‘1313’ after ‘1312,’ in the phrase ‘section 1311, 1312, 1316,
and 1317 of the Act,’ and in the phrase ‘section 1311, 1312, 1316, or
1317 of this Act,’ each time these phrases appear.’ ’’ Longview, 980
F.2d at 1312.
19 We also note the fact that the water quality certification
issue addressed by the Supreme Court in PUD No. 1 originated in
15
Fan Kwok v. INS, 392 U.S. 206, 212 (1968) (‘‘As a jurisdic-
tional statute, it must be construed both with precision and
with fidelity to the terms by which [the] Congress has ex-
pressed its wishes.’’). We are especially loath to do so in light
of the language and structure of the Act, both of which
undermine FOE’s proposed reading.20
We are thus ‘‘persuaded that [the] [C]ongress and the
[P]resident decided to leave section 1313 out of the list of
statutes in section 1369 for direct appeal from [ ] EPA to the
[c]ourt of [a]ppeals.’’ Longview, 980 F.2d at 1314. In reach-
ing this conclusion, however, we echo the sentiments of the
Second Circuit, which observed: ‘‘It would be too much to say
that we construe this confusing statute with confidence. But
construe it we must, consoled by the knowledge that if our
interpretation of the intent of [the] Congress is incorrect,
[the] Congress can easily correct it.’’ Bethlehem Steel, 538
F.2d at 518. Given the specificity of the CWA’s judicial
review provision, we join our sister circuits in holding that the
courts of appeals have original jurisdiction to review only
those EPA actions specifically enumerated in 33 U.S.C.
§ 1369(b)(1).
III.
For the foregoing reasons, we dismiss the petitions for
review for lack of jurisdiction and transfer the case to the
the state courts of Washington. PUD No. 1, 511 U.S. at 709–10.
This is another reason that the sentence on which FOE relies
cannot bear the dispositive weight FOE places on it—because PUD
No. 1 went to the Supreme Court on writ of certiorari from the
Washington Supreme Court, we doubt that the CWA’s division of
review between the federal courts of appeals and the federal district
courts played any part in the Supreme Court’s formulation of the
‘‘incorporated by reference’’ sentence.
20 As previously noted, two of our sister circuits recently dis-
missed challenges to EPA’s approval of a TMDL for want of
jurisdiction. Minn. Center for Envtl. Advocacy v. EPA,
No. 03–1636 (8th Cir. April 28, 2003); Alcoa, Inc. v. EPA,
No. 02–13562–II (11th Cir. Oct. 16, 2002). Neither circuit, however,
addressed PUD No. 1.
16
district court for consideration under the judicial review
provisions of the APA.
So ordered.