                                                    [PUBLISH]


          IN THE UNITED STATES COURT OF APPEALS


                 FOR THE ELEVENTH CIRCUIT                 FILED
                                                  U.S.C0URT0FAPPEALS
                                                   ELEVENTH QfRCOfT
                         No. 08-13652
                                                     OCT 26' 2012


                  Agency No. 40 CFR PART 122          JOHN LEY
                                                       CLERK
FRIENDS OF THE EVERGLADES,

                                                      Petitioner,

                             versus



UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

                                                    Respondent,

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
CAROLE WEHLE,

                                                    Intervenors.




                         No. 08-13653



                  Agency No. 40 CFR PART 122

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA,



                                                      Petitioner,
                            versus



UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

                                                 Respondent

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
CAROL WEHLE,

                                                 Interveners.




                         No. 08-13657



                  Agency No. 40 CFR PART 122

FLORIDA WILDLIFE FEDERATION, INC.,


                                                 Petitioners,

                            versus



UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

                                                 Respondent,

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
CAROL WEHLE,

                                                 Intervenors.
                          No. 08-14921



                     Agency No. 40 CFR PART

SIERRA CLUB, INC.,

ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA,

                                                  Petitioners,

                             versus



UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

                                                  Respondent,

UNITED STATES SUGAR CORPORATION,

                                                   Intervenor.




                          No. 08-16283



                     Agency No. EPA-HQ-OW

STATES OF NEW YORK, CONNECTICUT, DELAWARE,
ILLINOIS, MAINE, MICHIGAN, MINNESOTA,
MISSOURI, WASHINGTON,
GOVERNMENT OF THE PROVINCE OF MANITOBA, CANADA,

                                                   Petitioners,

                             versus


                               3
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
STEPHEN L. JOHNSON,

                                                                                 Respondents.



                         Petitions for Review of a Decision of the
                             Environmental Protection Agency

                                     (October 26,2012)

Before BARKETT and PRYOR, Circuit Judges, and BATTEN,* DistrictJudge.

PRYOR, Circuit Judge:

       In this matter, we must decide whether we have original subject matter

jurisdiction over several petitions for review of an administrative rule that exempts

transfers of waters of the United States from the requirements for a permit under

the Clean Water Act, 33 U.S.C. § 1251 et seq., or whether we may avoid deciding

that question and instead exercise hypothetical jurisdiction to decide the merits of

the petitions. Friends of the Everglades, several other environmental

organizations, nine states, the province of Manitoba, Canada, and the Miccosukee

Tribe argue that originaljurisdiction belongs in a district court, but they filed

protective petitions for review of the water-transfer rule in this and another circuit


"Honorable Timothy C. Batten, Sr., United States District Court for the Northern District of
Georgia, sitting by designation.
after the Administrator of the Environmental Protection Agency stated her position

that the initial judicial review of the rule could be had only in the circuit courts of

appeals. The Judicial Panel on Multidistrict Litigation consolidated the petitions in

this Court. The South Florida Water Management District and the United States

Sugar Corporation intervened to defend the rule alongside the Administrator.

United States Sugar urges us to exercise hypotheticaljurisdiction and deny the

petitions. But we hold that, under the plain language of the governing statute, id. §

1369(b)(1), we lack original subject matterjurisdiction to review the petitions and

we may not exercise hypothetical jurisdiction over them. We dismiss the petitions.

                                 I. BACKGROUND


      In 1972, Congress enacted the Clean Water Act "to restore and maintain the

chemical, physical, and biological integrity of the Nation's waters." Id § 1251(a).

As part of this effort, the Act prohibited "the discharge of any pollutant by any

person" except when permitted by law. Id. § 1311(a). The Act empowered the

Administrator of the Environmental Protection Agency to issue permits for

discharges of pollutants. Id§ 1342(a)(1). The Act granted broad authority to the

Administrator"to prepare or develop comprehensive programs for preventing,

reducing, or eliminating the pollution of the navigable waters." Id. § 1252(a). The

Act also granted the Administrator the authority to prescribe regulations to
administer the Act. Id § 1361(a). The Administrator interpreted this authority to

allow her to grant permanent exemptions from the requirements for a permit. See

40 C.F.R. § 122.3.

      In 2002, the Friends of the Everglades and the Fishermen Against the

Destruction of the Environment sought an injunction to force the South Florida

Water Management District to obtain a permit to transfer water from the polluted

canals of the Everglades Agricultural Area into Lake Okeechobee. Friends of the

Everglades v. S. Fla. Water Memt. Dist.. 570 F.3d 1210, 1214(11th Cir. 2009).

The district court allowed several parties to intervene in the lawsuit, including the

Environmental Protection Agency, the Miccosukee Tribe, and the United States

Sugar Corporation. Id The environmental groups argued that the water transfer

introduced pollutants into the lake and was a discharge subject to the requirements

for a permit. Id at 1216. The Act defined "discharge" as "any addition of any

pollutant to navigable waters from any point source." Id. (quoting 33 U.S.C.

§ 1362(12)). The Water District argued that, when it transferred pollutants from

the canals to the lake, it did not alter the existing level of pollutants in United

States waters. Id. at 1217. For that reason, the Water District argued that its

activities did not fall within the definition of "discharge." Id
      After a two-month bench trial, the district court enjoined the Water District

to apply for a permitfrom the Administrator. Id at 1214-15. The district court

interpreted the Clean Water Act to require a permitfor "water transfers between

distinct water bodies that result in the addition of a pollutant to the receiving

navigable water body." Friends of the Everglades v. S. Fla. Water Mgmt. Dist.

No. 02-80309,2006 WL 3635465, at *48 (S.D. Fla. Dec. 11, 2006), rev'd. 570

F.3d 1210 (11th Cir. 2009). The Water District appealed the judgment. 570 F.3d

at 1215.


      Before the district court entered its injunction, the Administrator issued a

notice of proposed rulemaking to create an exemption for water transfers from the

permit requirements of the Act. National Pollutant Discharge Elimination System

(NPDES) Water Transfers Proposed Rule, 71 Fed. Reg. 32,887, 32,891 (proposed

June 7,2006). After receiving public comments, the Administrator issued a notice

of final rule. 73 Fed. Reg. 33,697,33,708 (June 13,2008) (codified at 40 C.F.R.

§ 122.3). The rule created a permanent exemption from the permit program for

pollutants discharged from water transfers:

      The following discharges do not require . . . permits: . . .
      (i) Discharges from a water transfer. Water transfer means an activity
      that conveys or connects waters of the United States without
      subjecting the transferred water to intervening industrial, municipal,
      or commercial use. This exclusion does not apply to pollutants
      introduced by the water transfer activity itself to the water being
      transferred.


40 C.F.R. § 122.3(i). In the notice of final rule, the Administrator stated the

position that "judicial review of the Administrator's action c[ould] only be had by

filing a petition for review in the United States Court of Appeals within 120days

after the decision [wa]s considered issued for purposes ofjudicial review." 73 Fed.

Reg. at 33,697.

      Litigation ensued in two district courts. Several environmental

organizations filed petitions to challenge the rule in the Southern District ofNew

York. Nine states and the province of Manitoba, Canada, filed a parallel suit in

that court, which consolidated the actions. The Miccosukee Tribe and several

other environmental organizations filed suit in the Southern District of Florida.

      At the same time, the petitioners in those actions filed protective petitions

for review in the Second Circuit and in this Circuit. The Judicial Panel on

Multidistrict Litigation consolidated those petitions in this Court. See 28 U.S.C. §

2112(a)(3). We stayed the petitions during consideration of the appeal in Friends

of the Everglades v. South Florida Water Management District. The Southern

District of New York also stayed the actions in its court pending resolution of that

appeal and of the consolidated protective petitions. Catskill Mountains Chapter of

Trout Unlimited. Inc. v. EPA. 630 F. Supp. 2d 295, 308 (S.D.N.Y. 2009).
                                          8
      In 2009, we reviewed the injunction issued by the district court in the light

of the Administrator's new water-transfer rule. Friends of the Everglades v. S. Fla.

Water Mgmt. Dist.. 570 F.3d at 1218. We explained that, even though "all of the

existing precedent" would have supported the decision of the district court, we had

to accord the newly issued water-transfer rule deference under Chevron. U.S.A..

Inc. v. Natural Resources Defense Council. Inc.. 467 U.S. 837,103 S. Ct. 2778

(1984). Friends of the Everglades v. S. Fla. Water Mgmt. Dist.. 570 F.3d at 1218,

1227-28. After applying the two-part test for Chevron deference, see 467 U.S. at

842-43,103 S. Ct. at 2781-82, we concluded that the water-transfer rule was a

reasonable interpretation of an ambiguous provision of the Clean Water Act and

reversed the decision of the district court, Friends of the Everglades v. S. Fla.

Water Mgmt. Dist.. 570 F.3d at 1228. When the mandate issued in that appeal, the

stay of these petitions expired.

                          II. STANDARD OF REVIEW


      "[W]e determine our subject matter jurisdiction de novo." Alexis v. U.S.

Att'v Gen.. 431 F.3d 1291,1293 (11th Cir. 2005). "[T]he Court owes no

deference to an agency's interpretation of a statute that defines this Court's subject

matter jurisdiction." Sierra Club v. Leavitt. 355 F.Supp.2d 544, 548 (D.D.C. 2005)

(citing Fox Television Stations. Inc. v. FCC. 280 F.3d 1027, 1038-39 (D.C. Cir.
2002V): see Adams Fruit Co. v. Barrett. 494 U.S. 638, 650, 110 S. Ct. 1384,1391

(1990) (explaining that the delegation of power to an agency to administer a statute

does not empower that agency to "regulate the scope of the judicial power vested

by the statute").

                                in. DISCUSSION

      "[T]he Courts of Appeals havejurisdiction for direct review only of those

[Agency] actions specifically enumerated in 33 U.S.C. § 1369(b)(1)," City of

Baton Rouge v. EPA. 620 F.2d 478,480 (5th Cir. 1980), and the Administrator

invokes the following two provisions of that section as providing jurisdiction over

this matter:


       (1) Review of the Administrator's action . . . (E) in approving or
       promulgating any effluent limitation or other limitation under section
       1311, 1312, 1316, or 1345 of this title, (F) in issuing or denying any
       permit under section 1342 of this title . . . may be had by any
       interested person in the Circuit Court of Appeals of the United
       States ...,

33 U.S.C. § 1369(b)(1). The Administrator argues that we have jurisdiction under

section 1369(b)(1)(E) because the water-transfer rule is "related to" a limitation on

movements of water and establishes limitations on permit issuers. The

Administrator also argues that we have jurisdiction under section 1369(b)(1)(F)

because the effect of a permanent exemption from the requirements of a permit is

"functionally similar" to the issuance of a permit.
                                          10
      United States Sugar urges us to exercise hypothetical jurisdiction over this

matter and deny the petitions on the merits. United States Sugar argues that a court

must satisfy itself of its jurisdiction before addressing the merits of a case only

when the issue involves jurisdiction under Article III of the Constitution. United

States Sugar also argues that, when the issue involves statutoryjurisdiction and the

decision on the merits is foreordained, we have the discretion to conserve judicial

resources and address the merits.

      We divide our discussion in three parts. First, we explain why we lack

jurisdiction under section 1369(b)(1)(E). Second, we explain why we also lack

jurisdiction under section 1369(b)(1)(F). Third, we explain why we mustreject the

invitation of intervenor United States Sugar to exercise hypothetical jurisdiction.

                A. We Lack Jurisdiction Under Section 1369(b)(1)(E).

      Section 1369(b)(1)(E) grants original jurisdiction to the courts of appeals

over "any effluent limitation or other limitation under section 1311, 1312, 1316, or

1345 of this title." Id § 1369(b)(1)(E). "It is well established that when the

statute's language is plain, the sole function of the courts—at least where the

disposition required by the text is not absurd—is to enforce it according to its

terms." Lamie v. U.S. Tr.. 540 U.S. 526, 534, 124 S. Ct. 1023, 1030 (2004)

(internal quotation marks omitted). Because the water-transfer rule is neither an

                                          11
effluent limitation nor a limitation promulgated under section 1311, 1312,1316, or

1345, section 1369(b)(1)(E) cannot be the basis for our jurisdiction in this action.

      The water-transfer rule is not an effluent limitation. The Act defines

"effluent limitation" as "any restriction established by a State or the Administrator

on quantities, rates, and concentrations of chemical, physical, biological, and other

constituents 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). Not only does the water-transfer rule not restrict pollutants,

it explicitly allows entities to introduce pollutants into navigable bodies of water.

See 40 C.F.R. §122.3.

      The water-transfer rule is also not a "limitation under section 1311,1312,

1316, or 1345." Black's Law Dictionary defines a "limitation" as a "restriction."

Black's Law Dictionary 1012 (9th ed. 2009). The water-transfer rule imposes no

restrictions on entities engaged in water transfers. The effect is the opposite: the

rule exempts governments and private parties engaged in water transfers from the

procedural and substantive requirements of the Administrator's permit program.

      And even if the water-transfer rule could be classified as a limitation, it was

not promulgated under section 1311,1312,1316, or 1345. According to the notice

of final rule, the Administrator promulgated the rule under sections 1342 and 1361.


                                          12
73 Fed. Reg. at 33,698. The Administrator now argues that the water-transfer rule

was promulgated under section 1311 because section 1311 refers to section 1342,

but nothing in the text of section 1311 grants authority to the Administrator to

exempt activities from the permitprogram. See 33 U.S.C. § 1311. Section 1311

instead grants the Administrator authority to issue and terminate permits. Id.

      The analysis of the Ninth Circuit in Northwest Environmental Advocates v.

EPA. 537 F.3d 1006 (9th Cir. 2008), is instructive. In an appeal from a district

court, the Ninth Circuit was asked to review a different, but analogous, exemption

from the permit program. Id. at 1010. Although the district court had exercised

federal question jurisdiction, 28 U.S.C. § 1331, the Ninth Circuit considered

whether the matter should have been brought directly to the court of appeals under

section 1369(b)(1). Nw. Envtl. Advocates. 537 F.3d at 1015. The Ninth Circuit

held that section 1369(b)(1)(E) did not permit it to exercise original subject matter

jurisdiction because the challenged provision "providefd] no limitation

whatsoever... but rather createfd] the categorical and permanent exemptions of

three types of discharge from any limit imposed by a permitting requirement." Id.

at 1016.


      The Administrator argues that we have jurisdiction because the water-

transfer rule places limitations on permit issuers, and the Administrator relies on

                                         13
Natural Resources Defense Council. Inc. v. EPA, 673 F.2d 400 (D.C. Cir. 1982),

for the proposition that such limitations fall within section 1369(b)(1)(E). In that

case, the D.C. Circuit held that it had original subjectmatterjurisdiction under

section 1369(b)(1)(E) to reviewthe consolidated permit regulations of 1979. Id. at

401-02. The D.C. Circuit explained that the consolidated permit regulations were

"a limitation on pointsources and permit issuers," much like regulations that the

Fourth Circuit had previously held to support original jurisdiction under section

1369(b)(1)(E). Id at 405 (quoting Va. Elec. & Power Co. v. Costle. 566F.2d 446,

450 (4th Cir. 1977)). But the Fourth Circuit and the D.C. Circuit both emphasized

that the limitations on permit issuers in those regulations operated as "restriction[s]

on the untrammeled discretion of the industry." See id. at 404-05 (quoting Va.

Elec. 556 F.2d at 450).

      We reject the Administrator's reading of section 1369(b)(1)(E). The water-

transfer rule does the exact opposite of the regulations reviewed by the D.C. and

Fourth Circuits. The rule frees the industry from the constraints of the permit

process and allows the discharge of pollutants from water transfers. Section

1369(b)(1)(E) cannot be read to grant us original subject matter jurisdiction over

this matter.




                                          14
                B. We Lack Jurisdiction Under Section 1369(b)(1)(F).

      The arguments advanced by the Administrator for jurisdictionunder section

1369(b)(1)(F) fare no better. Section 1369(b)(1)(F) grants original subject matter

jurisdiction overa petition to review an action "issuing or denying any permit

under section 1342." 33 U.S.C. 1369(b)(1)(F). The water-transfer rule neither

issues nor denies a permit. The rule instead exempts a category of activities from

the requirements of a permitand ensures that no permit will ever be issued or

denied for discharge from a water transfer. See 40 C.F.R. § 122.3(i).

      The Supreme Court has interpreted section 1369(b)(1)(F) to extend

jurisdiction to those actions that have "the precise effect" of an action to issue or

deny a permit, Crown Simpson Pulp Co. v. Costle. 445 U.S. 193, 196, 100 S. Ct.

1093,1095 (1980), but the water-transfer rule has no such effect. In Crown

Simpson, the Administrator had denied several variances from effluent limitations

that had been approved by the California State Water Resources Control Board.

Id. at 195, 100 S. Ct. at 1094. Because California administered its own permit

program, the Administrator had vetoed a proposed state permit, not denied a

federal permit. Id. The Supreme Court was unwilling to create a bifurcated

system for review that depended on whether a state administered the permit

program, and the Court held that, when the action of the Administrator is

                                          15
functionally similar to the denial or issuance of a permit, the courts of appeals have

original subject matter jurisdiction under section 1369(b)(1)(F). Id at 196,100 S.

Ct. at 1094. But a permanent exemption is meaningfully different from the action

that the Supreme Court held in Crown Simpson to be functionally similar to the

denial of a permit. The exemption is a general rule, as opposed to a decision about

the activities of a specific entity, and a permanent exemption from the permit

program frees the discharging entities from further monitoring, compliance, or

renewal procedures.

      The Administrator argues that we should read section 1369(b)(1)(F) to apply

to any "regulations relating to permitting itself," but this interpretation is contrary

to the statutory text and was persuasively rejected in Northwest Environmental

Advocates. The Ninth Circuit held that it did not have jurisdiction under section

1369(b)(1)(F) to review a regulation creatingnew exemptions from the permit

program. Nw. Envtl. Advocates. 537 F.3d at 1018. The Ninth Circuit explained

that a new exemption will never produce a permit decision to be reviewed under

section 1369(b)(1)(F) before the court of appeals is able to review the underlying

regulation, so there is no reason to read the section as providing original subject

matterjurisdiction to review the exemption. Id Although the Sixth Circuit later

adoptedthe interpretation advanced by the Administrator, Nat'l Cotton Council of

                                           16
Am. v. EPA. 553 F.3d 927, 933 (6th Cir. 2009), it did so in an opinion that

provided no analysis of the provision and that cited two decisions of the Ninth

Circuit that the Ninth Circuit had distinguished in Northwest Environmental

Advocates, see id. We lack original jurisdiction to review a permanent exemption

from the permit program.

                  C. We Cannot Exercise Hypothetical Jurisdiction.

      The argument of United States Sugar that we may exercise hypothetical

jurisdiction fails. Even if the resolution ofthe merits were foreordained—an issue

we do not decide—the Supreme Court has explicitly rejected the theory of

"hypothetical jurisdiction." In Steel Co. v. Citizens for a BetterEnvironment. 523

U.S. 83,101-02,118 S. Ct. 1003, 1016 (1997), the Court reaffirmed that an

inferior court must have both statutory and constitutional jurisdiction before it may

decide a case on the merits:

      Hypothetical jurisdiction produces nothing more than a hypothetical
      judgment—which comes to the same thing as an advisory opinion,
      disapproved by this Court from the beginning. Much more than legal
      niceties are at stake here. The statutory and (especially) constitutional
      elements of jurisdiction are an essential ingredient of separation and
      equilibration of powers, restraining the courts from acting at certain
      times, and even restraining them from acting permanently regarding
      certain subjects. For a court to pronounce upon the meaning or the
      constitutionality of a state or federal law when it has no jurisdiction to
      do so is, by very definition, for a court to act ultra vires.



                                         17
Id. The Court recognized one exception to this requirement: when there is

substantial overlap between interpreting a statute to resolve the merits of a case and

determining an issue of statutory standing, a federal court has the power to decide

whether a statute creates a cause of action before deciding whether the plaintiff has

statutory standing to sue. Id at 97 n.2, 118 S. Ct. at 1013 n.2. But here the

statutory issue involves subject matter jurisdiction, not standing, and that issue is

distinct from the merits.

      We cannot exercise hypothetical jurisdiction any more than we can issue a

hypothetical judgment. "Federal courts are courts of limitedjurisdiction. They

possess only that power authorized by Constitution and statute, which is not to be

expanded byjudicial decree." Kokkonen v. Guardian Life Ins. Co. of Am.. 511

U.S. 375,377,114 S. Ct. 1673, 1675 (1994) (internal citations omitted). Because

we conclude that section 1369(b)(1) does not grant original subject matter

jurisdiction over these petitions, we may not address the merits of this controversy.

                                IV. CONCLUSION

      We DISMISS the petitions for review for lack of subject matter jurisdiction.




                                          18
