Whitman

The United States Environmental Protection Agency (“EPA”) appeals the district court’s entry of a .preliminary injunction in an action brought by the City of San Diego seeking judicial review, under the Administrative Procedure Act (“APA”), 5 U.S.C. § 704 , of a letter written by the EPA. The EPA’s letter stated that it would apply the provisions of the Ocean Pollution Reduction Act of 1994 (“OPRA”), 33 U.S.C. § 13U(j), to the City’s as-yet-unfiled application for renewal of a modified National Pollutant Discharge Elimination System (“NPDES”) permit. The City characterizes this letter as “final agency action” and contends that it violates the intention of Congress that OPRA govern only the City’s original application for a modified NPDES permit, not subsequent applications for renewal of that permit. The City argues that the application process is lengthy, complicated and costly, and that it needs a judicial determination, before it files its application for renewal of its modified NPDES permit, whether it will have to comply with the provisions of OPRA on an ongoing basis.

The district court concluded that the EPA’s letter was subject to judicial review under the APA as “final…