## Facts

- Federal law allowed EPA to approve state administration of the NPDES permitting program, while retaining power to veto particular state permits and to withdraw state program approval for noncompliance.
- Mississippi received EPA approval to administer an NPDES program through its Air and Water Pollution Control Commission.
- In 1975, the Mississippi Commission issued E.I. DuPont de Nemours & Co. an NPDES permit for effluent discharges from a titanium dioxide plant into Bay St. Louis.
- The proposed permit was submitted to EPA; EPA suggested changes that Mississippi incorporated into the final permit.
- EPA did not veto the DuPont permit and did not initiate proceedings to withdraw Mississippi’s NPDES program authority.
- An environmental organization petitioned the Fifth Circuit for direct review, seeking (1) review of EPA’s failure to withdraw Mississippi’s delegated authority and (2) review of EPA’s failure to veto the DuPont permit.
- EPA moved to dismiss for lack of appellate jurisdiction and lack of reviewable final agency action.

## Issues

1. Whether the court of appeals has jurisdiction to review EPA action or inaction concerning withdrawal of an approved state NPDES program, and whether the challenge was ripe absent final agency action.
2. Whether the court of appeals has jurisdiction under 33 U.S.C. § 1369(b)(1)(F) to review EPA’s failure to veto a state-issued NPDES permit.

## Decision

- The petition was dismissed.
- As to withdrawal of Mississippi’s NPDES authority, the court held such decisions are reviewable in principle in the court of appeals, but dismissed without prejudice because there was no final EPA action and no developed administrative record reflecting a definitive agency position.
- As to EPA’s failure to veto the DuPont permit, the court held it lacked jurisdiction under § 1369(b)(1)(F) because EPA’s non-veto is not “issuing or denying any permit”; any review, if available, would begin in federal district court.

## Legal Principles

- Appellate review of EPA action under the Clean Water Act requires reviewable final agency action; premature challenges lacking a concrete agency decision and record are not justiciable.
- EPA decisions to withdraw or not withdraw approval of a state NPDES program may be reviewed in the court of appeals only after EPA has been asked to act and has taken a final, reviewable position through appropriate agency processes.
- EPA’s failure to veto a state-issued NPDES permit is a supervisory oversight decision, not an EPA action “issuing or denying any permit” within § 1369(b)(1)(F).
- Challenges to EPA oversight inaction regarding an individual state permit, to the extent permitted, fall within the original jurisdiction of the federal district courts rather than direct review in the courts of appeals.

## Conclusion

The Fifth Circuit limited direct appellate review under the Clean Water Act by requiring final EPA action and an administrative record before reviewing disputes over withdrawal of a state NPDES program, and by holding that EPA’s non-veto of a state-issued permit is not directly reviewable in the court of appeals.


Save the Bay, Inc. v. Adm'r of Env't Prot. Agency, 556 F.2d 1282 (5th Cir. 1977)