This section contains the nature of the case and procedural background.

P owns an electrical generating facility that utilizes an 'open-cycle' cooling system. The station withdraws water from the Lees and Taunton Rivers, circulates that water through the plant's generating equipment as a coolant, and then discharges the water (at an elevated temperature) into Mount Hope Bay. The withdrawals and discharges are regulated by the Clean Water Act (CWA). For the last three decades, these actions have been authorized by a series of NPDES permits issued by D pursuant to section 402(a) of the CWA. In 1998, P applied for renewal of its NPDES permit and thermal variance authorization. D rejected the requested thermal variance. P sought review before the Environmental Appeals Board (Board) and asked for an evidentiary hearing. The Board accepted the petition for review but declined to hold an evidentiary hearing. P sued D and D moved to dismiss. The district court held it was without subject matter jurisdiction because the suit constituted a direct challenge to D's hearing rule and, thus, came within the exclusive jurisdiction of the circuit court under 33 U.S.C. § 1369(b)(1)(E). P appealed.

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