ELR Citation: 42 ELR 20222
No(s). 08-13652 (11th Cir. Oct 26, 2012)

The Eleventh Circuit held it lacked jurisdiction over several petitions for review of an EPA decision that allows a water district to transfer water from the polluted canals of the Everglades Agricultural Area into Lake Okeechobee without a CWA discharge permit. CWA §509(b)(1)(E) grants original jurisdiction to the courts of appeals over "any effluent limitation or other limitation" under §§301, 302, 306, or 405. Because EPA's water-transfer rule is neither an effluent limitation nor a limitation promulgated under these sections of the CWA, §509(b)(1)(E) cannot be the basis for jurisdiction. The court also lacks jurisdiction under §509(b)(1)(F), which grants original subject matter jurisdiction over a petition to review an action issuing or denying any permit under §402. The water-transfer rule neither issues nor denies a permit. The rule instead exempts a category of activities from the requirements of a permit and ensures that no permit will ever be issued or denied for discharge from a water transfer. Nor can the court exercise hypothetical jurisdiction to decide the merits of the petitions.