Southern California Alliance of Publicly Owned Treatment Works v. U.s. Environmental Protection Agency

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUTHERN CALIFORNIA ALLIANCE OF
PUBLICLY O WNED TREATMENT
W ORKS ; CENTRAL VALLEY CLEAN
W ATER ASSOCIATION ; B AY AREA
CLEAN W ATER AGENCIES ,
Plaintiffs-Appellants,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; DEBORAH J ORDAN , Acting
Regional Administrator, United
States Environmental Protection
Agency, Region IX,
Defendants-Appellees.
No. 19-15535
D.C. No.
2:16-cv-02960-
MCE-DB
OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted June 8, 2020
San Francisco, California
Filed August 5, 2021

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2 SCAP V. USEPA
Before: Eric D. Miller and Danielle J. Forrest,* Circuit
Judges, and Patrick J. Schiltz,** District Judge.
Opinion by Judge Miller
SUMMARY***
Environmental Law
The panel affirmed the district court’s dismissal of an
action challenging nonbinding guidance that the
Environmental Protection Agency issued to recommend a
statistical method for assessing water toxicity.
Plaintiffs are trade associations whose members are
California municipal agencies that operate wastewater
treatment plants. They brought this action alleging that the
EPA violated the Administrative Procedure Act (“APA”)
and the Clean Water Act in issuing the guidance at issue
here, which explained how to use a new statistical method
called the Test of Significant Toxicity (“TST”).
As a threshold matter, the panel held that it could
consider both of the district court’s dismissal orders where
the district court expressly stated in its second dismissal
* Formerly known as Danielle J. Hunsaker.
** The Honorable Patrick J. Schiltz, United States District Judge for
the District of Minnesota, sitting by designation.
*** This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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SCAP V. USEPA 3
order that it incorporated the first dismissal order “in its
entirety.”
The panel held that because the guidance at issue
imposed no legal consequences, the APA did not permit this
challenge where there was no final agency action. The panel
rejected plaintiffs’ argument that even if the guidance itself
was not final, the EPA’s later actions turned it into final
agency action. The panel also rejected plaintiffs’ contention
that if they were unable to challenge the TST in district court,
then their challenge could not be heard in any other forum.
COUNSEL
Melissa A. Thorme (argued) and Patrick F. Veasy, Downey
Brand LLP, Sacramento, California, for Plaintiffs-
Appellants.
John D. Gunter II (argued), Michael C. Gray, and Leslie M.
Hill, Attorneys; Eric Grant, Deputy Assistant Attorney
General; Environment and Natural Resources Division,
United States Department of Justice, Washington, D.C.; for
Defendants-Appellees.

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4 SCAP V. USEPA
OPINION
MILLER, Circuit Judge:
This case involves a challenge to nonbinding guidance
that the Environmental Protection Agency issued to
recommend a statistical method for assessing water toxicity.
The Administrative Procedure Act allows a plaintiff to
challenge only final agency action, and an agency’s action is
final only if it imposes legal consequences. Because the
guidance at issue imposes no such consequences, we
conclude that the APA does not permit this challenge, and
we affirm the district court’s judgment in favor of the
agency.
The Clean Water Act prohibits “the discharge of any
pollutant by any person” into the waters of the United States
without a permit. 33 U.S.C. § 1311(a). Although the EPA
may issue discharge permits, the Act also allows it to
delegate permitting responsibility to the States. Id.
§ 1342(b). “If [permitting] authority is transferred, then state
officials—not the federal EPA—have the primary
responsibility for reviewing and approving . . . discharge
permits, albeit with continuing EPA oversight.” National
Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S.
644, 650 (2007). State permitting programs must meet
minimum requirements set by EPA regulations. 40 C.F.R.
§§ 122.44, 123.25(a)(15). The EPA has transferred
permitting authority to 47 States, including California.
NPDES State Program Authority, EPA,
https://www.epa.gov/npdes/npdes-state-program-authority
(last visited July 28, 2021).
The EPA takes several measures to ensure that any
discharge into public waters is safe and nontoxic. Its
regulations entirely ban permitholders from discharging

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SCAP V. USEPA 5
certain pollutants and severely limit discharging others. See,
e.g., 40 C.F.R. §§ 129.100–129.105. And the regulations
require States to establish similar limitations on the amounts
of specific pollutants that permitholders can discharge. Id.
§ 131.11. But even if a discharge complies with the limits on
individual pollutants, it might still be toxic because it
contains a combination of pollutants, or because it contains
substances that federal or state regulators have not yet found
to be toxic. To address those possibilities, the EPA also
requires certain permitholders to pass a test called a “whole
effluent toxicity” (WET) test. Id. § 122.44(d)(1)(iv). A WET
test measures the aggregate effect of a discharge on aquatic
organisms such as minnows by exposing a test population of
organisms to a discharge and counting how many die or
become immobilized. See 60 Fed. Reg. 53,529, 53,532 (Oct.
16, 1995).
Because a WET test does not measure specific levels of
pollutants but instead measures toxicity based on the
response of aquatic organisms, the regulations must define
what is considered toxic in a way that accounts for variations
in how different populations of organisms may respond to
identical samples. The 1995 regulations incorporated three
manuals on WET testing—which in turn included several
recommended statistical methods—and noted that any
“changes” to the manuals “will be published in the Federal
Register prior to their effective date for regulatory
purposes.” 60 Fed. Reg. at 53,532, 53,540. In 2002, the EPA
updated the manuals but declined to “include[] . . .
alternative statistical methods”; it noted, however, that the
recommended statistical methods “are not the only possible
methods of statistical analysis.” 67 Fed. Reg. 69,952, 69,964
(Nov. 19, 2002).

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6 SCAP V. USEPA
The initial WET test regulations aimed to limit false
positive results—results that incorrectly state that a sample
is toxic—to no more than 5 percent. See 67 Fed. Reg.
at 69,968. In June 2010, the EPA issued the guidance at issue
here, explaining how to use a new statistical method called
the Test of Significant Toxicity (TST). Among other things,
the TST aims to limit false negative results—results that
incorrectly state that a sample is nontoxic—by adopting a
null hypothesis that a sample is toxic. In other words, the
TST presumes that a sample is toxic absent statistically
significant evidence to the contrary. The EPA explained that
it believed adopting that null hypothesis increases the
statistical power of the TST—the likelihood that it will
correctly classify samples as toxic or nontoxic—compared
to the methods authorized by the 1995 and 2002 regulations,
which did not control for false negatives. The EPA has
amended the relevant regulations governing WET tests
several times since issuing the 2010 guidance, but it has
never promulgated the TST as a formal rule. See 77 Fed.
Reg. 29,758 (May 18, 2012); 80 Fed. Reg. 8,956 (Feb. 19,
2015); 82 Fed. Reg. 40,836 (Aug. 28, 2017).
Plaintiffs are trade associations whose members are
California municipal agencies that operate wastewater
treatment plants. In 2014, plaintiffs brought an action in the
Eastern District of California to challenge the EPA’s use of
the TST. Plaintiffs alleged that the agency violated the APA
and the Clean Water Act when it approved California’s
application to use the TST as an “alternative test procedure”
for permits under 33 U.S.C. § 1314(h) and 40 C.F.R.
§§ 136.3(a), 136.5. After the complaint was filed, the EPA
withdrew its approval of California’s alternative test
procedure, and the district court dismissed the case as moot.

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SCAP V. USEPA 7
After unsuccessfully seeking reconsideration of the
dismissal, plaintiffs sought to reopen the case to amend their
complaint. Although most of the original complaint had
focused on the alternative test procedure, some allegations
related directly to the EPA’s use of the TST and its issuance
of the 2010 guidance, and plaintiffs sought to expand on
those allegations in the amended complaint. In October
2016, the district court denied the motion, concluding that
“[i]t makes no sense . . . to clumsily tack such a new claim
to [plaintiffs’] original [alternative-test-procedure]
challenge via a motion for reconsideration of a prior motion
for reconsideration.”
In December 2016, plaintiffs brought the action that is
now before us. Plaintiffs alleged that the EPA had violated
the APA by issuing the TST guidance without following
notice-and-comment rulemaking procedures, and that the
EPA had violated its own regulations by requiring and using
the TST in discharge permits. The district court dismissed
the complaint, in relevant part, on the ground that it was
barred by the APA’s six-year statute of limitations. See
28 U.S.C. § 2401(a). The court reasoned that plaintiffs
“fundamentally take procedural issue with the EPA’s failure
to formally promulgate the 2010 TST Guidance pursuant to
notice-and-comment requirements,” so the limitations
period expired in June 2016, six years after the guidance was
adopted. The court stated that because it had determined that
plaintiffs’ challenge was untimely, it did not need to
“address whether the 2010 TST Guidance . . . constitutes a
final agency action.”
Plaintiffs amended their complaint to allege that the
EPA’s actions were ultra vires and in violation of the Clean
Water Act. The district court determined that “[a]dding this
label . . . does nothing to change the substance of [p]laintiffs’

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8 SCAP V. USEPA
allegations,” so it again dismissed the complaint, this time
with prejudice, in a three-page order that “incorporated” its
prior order “in its entirety.” Plaintiffs timely appealed from
that order.
As a threshold matter, the EPA suggests that we should
ignore plaintiffs’ challenges to the district court’s first
dismissal order because plaintiffs named only the second
dismissal order in their notice of appeal. The first dismissal
order was not an appealable final judgment because the
district court had allowed leave to amend; only the second
order was a final judgment. See Disabled Rts. Action Comm.
v. Las Vegas Events, Inc., 375 F.3d 861, 870 (9th Cir. 2004).
But we have held that “[a]n appeal from a final judgment
draws in question all earlier, non-final orders and rulings
which produced the judgment.” Litchfield v. Spielberg,
736 F.2d 1352, 1355 (9th Cir. 1984). And here, the district
court expressly stated that its second dismissal order
“incorporated” the first order “in its entirety.” We may
therefore consider plaintiffs’ arguments relating to both
orders.
Although plaintiffs advance a variety of different legal
theories, all of them challenge what plaintiffs describe as the
EPA’s “requirement, use, allowance, and promotion” of the
2010 guidance, which “created and recommended use of
statistical and other toxicity testing procedures.” That
guidance, plaintiffs assert, “is ultra vires and exceeds [the
EPA’s] statutory authority because the guidance document
was not promulgated . . . as a formal rule under the APA.”
As we have explained, the district court determined that
plaintiffs’ challenge was untimely. We review the district
court’s dismissal de novo and “may affirm on any ground
supported by the record.” Karasek v. Regents of Univ. of
Cal., 956 F.3d 1093, 1104 (9th Cir. 2020). We find it

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SCAP V. USEPA 9
unnecessary to consider the timeliness of the complaint
because we affirm the dismissal on the alternative ground
that the 2010 guidance was not final agency action.
The APA authorizes district courts to review only “final
agency action.” 5 U.S.C. § 704. Here, the EPA
acknowledges that its guidance was “agency action,” a
concept that “cover[s] comprehensively every manner in
which an agency may exercise its power.” San Francisco
Herring Ass’n v. Department of the Interior, 946 F.3d 564,
575–76 (9th Cir. 2019) (quoting Whitman v. American
Trucking Ass’ns, 531 U.S. 457, 478 (2001)). This case
therefore turns on whether the guidance was “final.”
In Bennett v. Spear, 520 U.S. 154 (1997), the Supreme
Court set out two requirements that must be satisfied for
agency action to be deemed final: “First, the action must
mark the ‘consummation’ of the agency’s decisionmaking
process—it must not be of a merely tentative or interlocutory
nature. And second, the action must be one by which ‘rights
or obligations have been determined,’ or from which ‘legal
consequences will flow.’” Id. at 177–78 (first quoting
Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp.,
333 U.S. 103, 113 (1948); and then quoting Port of Bos.
Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic,
400 U.S. 62, 71 (1970)). The EPA concedes that the 2010
guidance meets the first requirement. But the EPA argues
that the guidance does not meet the second requirement
because the guidance “imposed no rights, obligations, or
legal consequences.”
As the District of Columbia Circuit has explained, courts
must “make Bennett prong-two determinations based on the
concrete consequences an agency action has or does not
have.” California Cmtys. Against Toxics v. EPA, 934 F.3d
627, 637 (D.C. Cir. 2019); accord Whitewater Draw Nat.

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10 SCAP V. USEPA
Res. Conservation Dist. v. Mayorkas, No. 20-55777, 2021
WL 3027687, at *7 (9th Cir. July 19, 2021); Gill v. United
States Dep’t of Justice, 913 F.3d 1179, 1185 (9th Cir. 2019).
For example, in United States Army Corps of Engineers v.
Hawkes Co., 136 S. Ct. 1807 (2016), the Supreme Court
determined that the Corps of Engineers’ decision about
whether a property contained “waters of the United States”
was final agency action because it fixed “the Government’s
position” in subsequent litigation and could “limit[] the
potential liability a landowner faces for discharging
pollutants.” Id. at 1814. By contrast, in California
Communities Against Toxics, the court determined that an
EPA memo was not final agency action because it merely
“advise[d] EPA employees of the agency’s position” and did
not “bind state permitting authorities or assure regulated
entities” of any rights. 934 F.3d at 639.
Plaintiffs attempt to demonstrate the requisite concrete
consequences through several steps. The Clean Water Act
requires the EPA to “promulgate guidelines establishing test
procedures for the analysis of pollutants,” 33 U.S.C.
§ 1314(h), and also to “publish” rules relating to water
quality, id. § 1314(a)(2)(C), (a)(8). Consistent with that
mandate, the EPA’s 2002 rule incorporated into published
regulations three WET test manuals, which had “selected”
and “recommended” certain statistical methods. 67 Fed.
Reg. at 69,964; see also 40 C.F.R. § 136.3(a) (Table IA). But
the EPA’s 2010 guidance allowed permitting authorities to
use the TST as “another statistical option to analyze valid
WET test data for . . . permit compliance determinations,”
even though the agency did not publish the TST as a rule or
add it to the methods listed in 40 C.F.R. § 136.3. As a result,
plaintiffs contend, the 2010 guidance changed the legal
regime by allowing permitting authorities to use the TST.

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SCAP V. USEPA 11
The EPA disagrees with plaintiffs’ construction of the
relevant regulations, relying on language in the 2002 rule
that describes the selected methods for interpreting WET test
data as “not the only appropriate techniques.” 67 Fed. Reg.
at 69,964. We find it unnecessary to resolve that dispute
because even under plaintiffs’ interpretation, the 2010
guidance is not final agency action.
Even if the 2010 guidance represents a departure from
the view reflected in the earlier regulations, it creates no
concrete consequences on its own. To be sure, under
plaintiffs’ theory, the 2010 guidance suggests that permitting
authorities have a new testing option. But it is permits, not
guidance documents, that create consequences for regulated
entities like plaintiffs. Plaintiffs point out that permit holders
may be subject to criminal penalties or civil enforcement
actions for failing the TST if a state or federal permit requires
it. See 33 U.S.C. § 1319. But the “if” is key. The statute
authorizes civil enforcement actions and criminal penalties
for violations of “permit conditions.” Id. § 1319(a)–(c). In
other words, permit holders are subject to concrete
consequences only if a state or federal permit incorporates
the TST. We have previously recognized that an agency
action is not final when subsequent agency decision making
is necessary to create any practical consequences. See City
of San Diego v. Whitman, 242 F.3d 1097, 1102 (9th Cir.
2001). That principle is controlling here.
Significantly, the guidance document itself disclaims
“any legally binding requirements on EPA, states, . . .
permittees, or laboratories conducting or using WET testing
for permittees.” Plaintiffs correctly point out that such
boilerplate disclaimers are not necessarily controlling. See
Appalachian Power Co. v. EPA, 208 F.3d 1015, 1022–23
(D.C. Cir. 2000); Regents of the Univ. of Cal. v. Department

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12 SCAP V. USEPA
of Homeland Sec., 908 F.3d 476, 516 (9th Cir. 2018), rev’d
in part on other grounds, 140 S. Ct. 1891 (2020). But the
rest of the guidance confirms that it does not bind anyone to
anything. To the contrary, it explains that the “EPA
developed the TST approach as another statistical option” to
use for evaluating WET test data, and it does not “preclude
the use of” the EPA’s existing approved methodologies. It
advises that “[p]ermitting authorities should consider the
practical programmatic shift from the traditional hypothesis
testing approach to the TST approach by opening a dialogue
with their regulated community,” adding that “they might
want to begin to identify what changes might be needed to
assimilate the TST approach.” That is the language of
suggestion—and mild suggestion at that—not command. Cf.
Appalachian Power Co., 208 F.3d at 1023.
In urging a contrary conclusion, plaintiffs rely primarily
on Barrick Goldstrike Mines Inc. v. Browner, 215 F.3d 45
(D.C. Cir. 2000), but that case does not help them. In
Barrick, the District of Columbia Circuit considered EPA
guidance clarifying that waste rock was not subject to a de
minimis exception applicable to other regulated activities,
which meant that Barrick, whose business involved moving
waste rock containing trace amounts of toxic substances, had
to report those toxins to the agency. Id. at 47. The court held
that the guidance was final agency action because if Barrick
did not comply, it faced “enforcement action and fines.” Id.
at 47–48. Here, by contrast, plaintiffs do not explain how the
2010 guidance, standing alone, will cause them to face
anything. Instead, “as a bare statement of the agency’s
opinion,” the 2010 guidance “can be neither the subject of
‘immediate compliance’ nor of defiance.” Fairbanks North
Star Borough v. United States Army Corps of Eng’rs,
543 F.3d 586, 593–94 (9th Cir. 2008) (quoting FTC v.
Standard Oil Co., 449 U.S. 232, 239–40 (1980)). Neither

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SCAP V. USEPA 13
plaintiffs nor anyone else “can rely on it as independently
authoritative in any proceeding,” and there is “no penalty or
liability of any sort in ignoring it.” California Cmtys. Against
Toxics, 934 F.3d at 638.
Plaintiffs argue that even if the 2010 guidance itself was
not final, the EPA’s later actions “crystallized” it into final
agency action. Plaintiffs first point to a spreadsheet that the
EPA circulated to state water regulators in May 2012. The
agency described the spreadsheet as an “easy to use,
inexpensive way” for States and EPA regional offices to
“analyze and evaluate valid WET data.” But the spreadsheet
has the same finality problems as the 2010 guidance itself: It
makes clear that the TST is an option, not a requirement. See
Sierra Club v. EPA, 955 F.3d 56, 64 (D.C. Cir. 2020)
(explaining that guidance is not final agency action when
States “retain discretion to utilize the [guidance] or maintain
the status quo in their individual permitting programs”).
The same is true of two 2015 emails that the EPA sent to
state permitting authorities. In one, the agency assured
California regulators that the State was “still able to use” the
TST despite the EPA’s withdrawal of the alternative test
procedure that plaintiffs’ first lawsuit had challenged. In the
other, the EPA “strongly recommend[ed]” that California
regulators add a detailed description of the TST to a state-
issued permit. Setting aside any argument that the EPA’s
recommendation effectively required state permitting
authorities to use the TST—a theory plaintiffs expressly
disclaimed at oral argument—the emails reflect the same
thing as the 2010 guidance: The EPA considers the TST one
option for interpreting the WET test data necessary to obtain
a discharge permit.
Of course, as the EPA acknowledges, permits
themselves are final agency actions. But plaintiffs have

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14 SCAP V. USEPA
disclaimed any challenge to specific permits in this
litigation, and rightly so. Federally issued permits may not
be challenged in an APA action in district court because they
are subject to exclusive review in the court of appeals. See
33 U.S.C. § 1369(b)(1)(F). As for State-issued permits, we
have held—in unrelated litigation brought by these same
plaintiffs—that the statute “does not contemplate federal
court review of state-issued permits” and that such permits
are subject to review only in state court. Southern Cal. All.
of Publicly Owned Treatment Works v. EPA, 853 F.3d 1076,
1086 (9th Cir. 2017) (quoting American Paper Inst. v. EPA,
890 F.2d 869, 875 (7th Cir. 1989)).
Plaintiffs object that if they are unable to challenge the
TST in district court, then their challenge cannot be heard in
any other forum. That is incorrect. We have previously
observed that “state courts can interpret federal law, and thus
can review and enjoin state authorities from issuing permits
that violate the requirements of the Clean Water Act.” Boise
Cascade Corp. v. EPA, 942 F.2d 1427, 1434 (9th Cir. 1991).
Indeed, California courts have often interpreted the Act. See,
e.g., City of Burbank v. State Water Res. Control Bd.,
108 P.3d 862, 869–70 (Cal. 2005). Plaintiffs’ challenge to
the EPA’s decision to allow use of the TST in individual
permits is appropriately adjudicated in the context of
individual permit decisions. Cf. Lujan v. National Wildlife
Fed’n, 497 U.S. 871, 894 (1990).
AFFIRMED.

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