Respondents Brief — City and County of San Francisco, California, Petitioner v. Environmental Protection Agency

Supreme Court briefApr 12, 2024

Ask Donna

What actually matters in this document.

Text

No. 23-753

In the Supreme Court of the United States

CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA,

PETITIONER

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

ELIZABETH B. PRELOGAR

Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

ELISABETH H. CARTER

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

The U.S. Environmental Protection Agency issued

petitioner a National Pollutant Discharge Elimination

System permit that imposes various limitations on petitioner’s discharges into the Pacific Ocean. Petitioner

challenged two of those limitations, which are expressed

as narrative prohibitions on discharges that cause or

contribute to specified adverse effects on water quality.

The question presented is as follows:

Whether the challenged limitations violate the Clean

Water Act, 33 U.S.C. 1251 et seq., by failing to identify

specific limits to which petitioner’s discharges must

conform.

(I)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Statement ...................................................................................... 1

Argument....................................................................................... 9

Conclusion ................................................................................... 16

TABLE OF AUTHORITIES

Cases:

Arkansas v. Oklahoma, 503 U.S. 91 (1992)..................... 3, 13

Decker v. Northwest Envtl. Def. Ctr.,

568 U.S. 597 (2013)................................................................ 2

National Ass’n of Mfrs. v. Department of Def.,

583 U.S. 109 (2018)................................................................ 2

NRDC v. United States EPA,

808 F.3d 556 (2d Cir. 2015) .......................................... 14, 15

PUD No. 1 of Jefferson County v. Washington

Dep’t of Ecology, 511 U.S. 700 (1994) ......................... 13, 14

Statutes and regulation:

Clean Water Act, 33 U.S.C. 1251 et seq ................................. 1

33 U.S.C. 1251(a) (Supp. II 1972) .................................... 1

33 U.S.C. 1311 .............................................................. 2, 13

33 U.S.C. 1311(a) ............................................................... 2

33 U.S.C. 1311(b)(1) .......................................................... 2

33 U.S.C. 1311(b)(1)(A) ................................................... 12

33 U.S.C. 1311(b)(1)(B) ................................................... 12

33 U.S.C. 1311(b)(1)(C) ................................................... 12

33 U.S.C. 1313 .................................................................. 13

33 U.S.C. 1313(c)(2)(A) ..................................................... 3

33 U.S.C. 1341 .................................................................. 13

(III)

Statutes and regulation—Continued:

Page

33 U.S.C. 1341(d) ............................................................. 13

33 U.S.C. 1342 .............................................................. 2, 13

33 U.S.C. 1342(a)(1) ..................................................... 2, 13

33 U.S.C. 1342(a)(2) ............................................... 2, 13, 14

33 U.S.C. 1342(b) ............................................................... 3

33 U.S.C. 1342(c)(1) ........................................................... 3

33 U.S.C. 1342(k) ............................................................. 13

33 U.S.C. 1342(q)(1) .......................................................... 4

33 U.S.C. 1344 .................................................................... 2

33 U.S.C. 1362(8) ............................................................... 3

33 U.S.C. 1362(11) ....................................................... 3, 12

33 U.S.C. 1362(12)(A) ........................................................ 2

33 U.S.C. 1362(12)(B) ........................................................ 2

Consolidated Appropriations Act, 2001,

Pub. L. No. 106-554, sec. 1(a)(4)

[Div. B, Tit. I, § 112(a)], 114 Stat. 2763A-224..................... 4

Cal. Water Code (West 2009):

§ 13050 ........................................................................ 11, 12

§ 13050(k) ......................................................................... 11

§ 13050(l) .......................................................................... 11

§ 13050(m) ........................................................................ 12

40 C.F.R. 124.4(c)(2) ................................................................ 6

Miscellaneous:

59 Fed. Reg. 18,688 (Apr. 19, 1994) ................................... 3, 4

In the Supreme Court of the United States

No. 23-753

CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA,

PETITIONER

ENVIRONMENTAL PROTECTION AGENCY

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-76)

is reported at 75 F.4th 1074. The order of the Environmental Appeals Board (Pet. App. 402-486) is reported

at 18 E.A.D. 322.

JURISDICTION

The judgment of the court of appeals was entered on

July 31, 2023. A petition for rehearing was denied on

October 10, 2023 (Pet. App. 487). The petition for a writ

of certiorari was filed on January 8, 2024. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. In 1972, Congress enacted the Clean Water Act,

33 U.S.C. 1251 et seq., to “restore and maintain the

chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. 1251(a) (Supp. II 1972); see

(1)

Decker v. Northwest Envtl. Def. Ctr., 568 U.S. 597, 602

(2013). To achieve that objective, the Clean Water Act

generally prohibits “the discharge of any pollutant by

any person.” 33 U.S.C. 1311(a). The Act defines the

term “discharge of a pollutant” to include “any addition

of any pollutant to navigable waters from any point

source,” as well as “any addition of any pollutant to the

waters of the contiguous zone or the ocean from any

point source other than a vessel or other floating craft.”

33 U.S.C. 1362(12)(A) and (B).

The Clean Water Act “contains important exceptions

to the prohibition on discharge of pollutants.” National

Ass’n of Mfrs. v. Department of Def., 583 U.S. 109, 115

(2018). One of those exceptions is found in 33 U.S.C.

1342, which establishes the National Pollutant Discharge Elimination System (NPDES) program. Under

that program, the U.S. Environmental Protection Agency

(EPA) may “issue a permit” for the discharge of any

pollutant other than dredged or fill material “upon condition that such discharge will meet * * * all applicable

requirements under [33 U.S.C.] 1311, 1312, 1316, 1317,

1318, and 1343.” 33 U.S.C. 1342(a)(1); see 33 U.S.C.

1342(a)(2) (authorizing EPA to “prescribe conditions

for such permits to assure compliance with the requirements of [Section 1342(a)(1)] and such other requirements as [EPA] deems appropriate”).1

Section 1311, in turn, requires the achievement of

“effluent limitations” and “any more stringent limitation, including those necessary to meet water quality

standards.” 33 U.S.C. 1311(b)(1). The term “effluent

limitation” is broadly defined in the Act to refer to “any

restriction” on the “quantities, rates and concentrations”

A separate Clean Water Act program authorizes permits for the

discharge of dredged or fill material. See 33 U.S.C. 1344.

of pollutants discharged from point sources. 33 U.S.C.

1362(11). Water quality standards “establish the desired

condition” of the waters receiving the discharge. Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992); see 33 U.S.C.

1313(c)(2)(A) (providing that whenever a State “revises

or adopts a new” water quality standard, such standard

“shall consist of the designated uses of the navigable

waters involved and the water quality criteria for such

waters based upon such uses”).

EPA may authorize a State that meets certain statutory criteria to administer its own NPDES program.

33 U.S.C. 1342(b). When EPA grants such authorization,

the State assumes responsibility for issuing NPDES

permits “for discharges into navigable waters within its

jurisdiction,” while EPA retains responsibility for issuing NPDES permits for discharges beyond the State’s

territorial waters, more than three miles from shore.

Ibid.; see 33 U.S.C. 1342(c)(1), 1362(8).

2. “Combined sewer systems” are “wastewater collection systems designed to carry sanitary sewage (consisting of domestic, commercial, and industrial wastewater) and storm water (surface drainage from rainfall

or snowmelt) in a single pipe to a treatment facility.”

C.A. E.R. 1489. In periods of wet weather, total flows

can exceed the capacity of such a system, and the resulting overflow can result in discharges of sewage into

nearby waters. Ibid. Those discharges are known as

“combined sewer overflows,” ibid., which are subject to

NPDES permit requirements, 59 Fed. Reg. 18,688,

18,689 (Apr. 19, 1994).

In 1994, EPA published the “Combined Sewer Overflow (CSO) Control Policy”—a set of “provisions for developing appropriate, site-specific NPDES permit requirements” for combined sewer overflows. 59 Fed. Reg.

at 18,688. The CSO Control Policy states, among other

things, that permits initially “should at least require”

compliance “with applicable [water quality standards],

expressed in the form of a narrative limitation”—i.e., a

limitation stated in qualitative, rather than quantitative, terms. Id. at 18,696. In 2000, Congress amended

the Clean Water Act to require each NPDES permit for

discharges from a municipal combined sewer system

to “conform to the [CSO] Control Policy.” 33 U.S.C.

1342(q)(1); see Consolidated Appropriations Act, 2001,

Pub. L. No. 106-554, sec. 1(a)(4) [Div. B, Tit. I, § 112(a)],

114 Stat. 2763A-224.

3. The Oceanside system is a combined sewer system that petitioner operates. Pet. App. 15. The Oceanside system collects wastewater from approximately

250,000 residents in western San Francisco. Id. at 252.

During heavy rain, the Oceanside system can overflow,

discharging wastewater directly into the Pacific Ocean

at eight discharge points, known as “outfalls.” Id. at 16;

see id. at 255, 257-258. Seven of the outfalls discharge

sewage near the shore, including public beaches, while

the eighth, the Southwest Ocean Outfall, discharges sewage more than three miles offshore. Id. at 16, 18, 258.

The Oceanside system is subject to the water quality

standards in the Water Quality Control Plan for the San

Francisco Bay Basin (Basin Plan), which was adopted

by the California Regional Water Quality Control

Board for the San Francisco Bay Region (Regional Water Board). See Pet. App. 264-268; C.A. E.R. 404, 416 &

n.13. The Basin Plan identifies the “beneficial uses” of

the region’s waters, including shellfish harvesting, marine habitat, and recreation. Pet. App. 265. The Basin

Plan further identifies “water quality objectives,” as well

as “implementation programs and policies to achieve

those objectives.” Ibid.

The Oceanside system is also subject to the water

quality standards in the Water Quality Control Plan for

Ocean Waters of California (Ocean Plan), which was

adopted by the California State Water Resources Control Board (State Water Board). C.A. E.R. 503-619; see

Pet. App. 268-269. Chapter II of the Ocean Plan “sets

forth limits or levels of water quality characteristics for

ocean waters to ensure the reasonable protection of beneficial uses and the prevention of nuisance.” C.A. E.R.

514 (footnote omitted). Those limits establish bacterial,

physical, chemical, biological, and other standards. Id.

at 514-518. One of the physical standards, for example,

requires that “[f ]loating particulates and grease and oil

shall not be visible.” Id. at 517. Chapter III of the Ocean

Plan sets forth a program of implementation, including

requirements for the management of discharged waste

and prohibitions on certain types of discharge. Id. at

523-524, 541-542.2

In 1979, the State Water Board issued Order No. WQ

79-16. C.A. E.R. 1654-1674; see Pet. App. 270-274. Known

as the “1979 Ocean Plan Exception,” that order exempts

the Oceanside system from the Ocean Plan’s bacterial

standards and allows the system to experience an average of eight combined sewer overflows per year. Pet.

App. 18; see C.A. E.R. 1670-1671. The order provides,

however, that with the exception of the bacterial standThe Ocean Plan provides that, “[i]f a discharge outside the territorial waters of the State could affect the quality of the waters of

the State, the discharge may be regulated to assure no violation of

the Ocean Plan will occur” in the State’s territorial waters. C.A. E.R.

577; see Pet. App. 441 (noting that the Ocean Plan applies to “discharges both within and outside of the territorial waters of the state”).

ards, petitioner “shall,” “to the greatest extent practical,” “design, construct and operate facilities” that “will

conform to the remaining standards set forth in Chapter II of the Ocean Plan” and that “will comply with the

conditions controlled by the requirements provided by

Chapter III, Sections A and B of the Ocean Plan.” C.A.

E.R. 1670.

4. EPA has authorized California to administer its

own NPDES program. Pet. App. 412. Accordingly, California has assumed jurisdiction over petitioner’s nearshore discharges, while EPA continues to regulate discharges at the Southwest Ocean Outfall. Ibid. Because

the Oceanside system requires both federal and state

NPDES permits, EPA and California agreed to consolidate the permitting process. Id. at 425; see 40 C.F.R.

124.4(c)(2).

In 2019, EPA and California published, and solicited

comments on, a draft consolidated Oceanside NPDES

permit. C.A. E.R. 620-765, 936. The draft permit set

forth discharge prohibitions, effluent limitations, and

receiving-water limitations. Id. at 624-627. The draft

permit also required petitioner to implement nine minimum controls, update its long-term control plan, and

engage in monitoring and reporting. Id. at 627, 633-640.

The draft permit included various attachments. Id. at

642-765. Attachment F, for example, was a “Fact Sheet”

that explained “the legal requirements and technical rationale that serve as the basis for the [permit’s] requirements.” Id. at 694; see id. at 692-727. Attachment G

was a set of regional standard provisions regarding permit compliance and other matters. Id. at 728-748.

Petitioner submitted comments on the draft permit.

C.A. E.R. 888-932. In those comments, petitioner objected to two “narrative” limitations in the draft permit.

Id. at 921. The first—which appeared in Section V, entitled “Receiving Water Limitations”—stated: “Discharge

shall not cause or contribute to a violation of any applicable water quality standard (with the exception set forth

in State Water Board Order No. WQ 79-16) for receiving waters adopted by the Regional Water Board, State

Water Resources Control Board (State Water Board),

or U.S. EPA.” Id. at 626-627 (emphasis omitted; capitalization altered). The second—which appeared among

the “Regional Standard Provisions” in Attachment G—

stated: “Neither the treatment nor the discharge of pollutants shall create pollution, contamination, or nuisance as defined by California Water Code section

13050.” Id. at 731-732 (emphasis omitted; capitalization

altered). Petitioner argued that those two “narrative”

limitations were “contrary to law,” were “unsupported

by the available facts,” and would “introduce unnecessary uncertainty regarding ongoing compliance with

the permit.” Id. at 921 (emphasis omitted).

In response to petitioner’s comments, EPA and California explained that the two narrative limitations were

“supported by applicable law and available facts.” Pet.

App. 513. EPA and California also rejected petitioner’s

assertion that the two limitations would create uncertainty. Id. at 514-521, 535-538. With respect to the limitation in Section V, EPA and California explained that

“Fact Sheet sections III.C.1 and III.C.2” identified “the

applicable water quality standards” as “the California

Ocean Plan (Ocean Plan), the Water Quality Control

Plan for San Francisco Bay Basin (Basin Plan), and

State Water Board Order No. WQ 79-16.” Id. at 516.

Those standards, EPA and California emphasized, represented no change in the “overarching regulatory context in which [petitioner] operates.” Id. at 535-536.

With respect to the limitation in Attachment G, EPA

and California explained that “Water Code section 13050

defines ‘pollution,’ ‘contamination,’ and ‘nuisance.’ ”

Pet. App. 518-519. They also emphasized that California has included the same “ ‘region-specific’ ” limitation

“in nearly all individual NPDES permits since at least

1993.” Id. at 519. Accordingly, EPA and California each

issued a final NPDES permit that included the two narrative limitations. Id. at 83-84, 97, 339; see id. at 80-401;

C.A. Supp. E.R. 2-5.

5. Petitioner filed a petition for review of EPA’s issuance of the NPDES permit with the agency’s Environmental Appeals Board. C.A. E.R. 442-501.3 The

Board denied the petition for review. Pet. App. 402-486.

The Board rejected petitioner’s contention that the two

narrative limitations were contrary to law and were

based on clearly erroneous factual findings. Id. at 429450. The Board also rejected petitioner’s contention

that the two limitations were “so ‘vague’ and ‘unclear’

that [they] fail[ed] to provide ‘fair notice’ to [petitioner]

of its legal obligations.” Id. at 450 (citation omitted); see

id. at 450-452.

The Board did not find the “language” of the narrative limitations to be “unclear.” Pet. App. 451; see id. at

430 n.15. The Board likewise did not find it “unclear

which water quality standards apply under the permit.”

Id. at 451. And the Board noted that petitioner had “not

identified” any “language in any particular water qualPetitioner separately sought review of California’s issuance of

the NPDES permit in California state court. See City & County of

San Francisco v. San Francisco Bay Reg’l Water Quality Control

Bd., No. RG19042575 (Alameda County Super. Ct.); Pet. App. 427

n.11. Those proceedings have been stayed pending the resolution of

the current federal-court proceedings.

ity standard” that petitioner believed to be “vague or

insufficiently clear.” Ibid. Following the Board’s order,

EPA’s issuance of the permit became final. Id. at 77-78.

6. The court of appeals denied petitioner’s petition

for review of EPA’s NPDES permit. Pet. App. 1-76.

Like the Environmental Appeals Board, the court held

that the Clean Water Act authorized EPA to include the

narrative limitations in Section V and Attachment G of

the permit. Id. at 5; see id. at 32-36. Rejecting petitioner’s assertion that the limitations were “too vague

to ensure [petitioner’s] control measures will protect

water quality,” id. at 32, the court explained that the

limitations “simply require[d] that [petitioner’s] discharges comply with applicable state [water quality

standards],” id. at 34. The court also found that the evidence supported EPA’s decision to include the narrative limitations “as a ‘backstop’ to ensure compliance

with [water quality standards] not addressed by specific

effluent limitations elsewhere in the permit.” Id. at 40.

Judge Collins dissented. Pet. App. 50-76. In his view,

the narrative limitations violated the Clean Water Act

“by failing to articulate any ‘specific guidance’ as to the

‘practices” or ‘procedures’ that dischargers should undertake” to ensure compliance with the applicable water quality standards. Id. at 63 (citation omitted).

7. The court of appeals denied rehearing en banc.

Pet. App. 487.

ARGUMENT

EPA issued petitioner an NPDES permit that imposes various limitations on petitioner’s discharges into

the Pacific Ocean. Petitioner contends (Pet. i) that two

of those limitations, expressed as narrative prohibitions

on discharges that have specified adverse effects on water quality, violate the Clean Water Act by not “identi-

fying specific limits to which [petitioner’s] discharges

must conform.” The court of appeals correctly rejected

that contention, and its decision does not conflict with

any decision of this Court or another court of appeals.

The petition for a writ of certiorari should be denied.

1. The court of appeals correctly rejected petitioner’s

contention that the two narrative limitations—one in

Section V of the permit, and the other in Attachment G—

are not specific enough to satisfy the Clean Water Act.

Pet. App. 32-36.

a. Contrary to petitioner’s contention (Pet. i), the

two narrative limitations at issue adequately specify the

limits to which petitioner’s discharges must conform.

The narrative limitation in Section V of the permit states:

“Discharge shall not cause or contribute to a violation

of any applicable water quality standard (with the exception set forth in State Water Board Order No. WQ

79-16) for receiving waters adopted by the Regional

Water Board, State Water Resources Control Board

(State Water Board), or U.S. EPA.” Pet. App. 97. The

permit itself makes clear what those applicable water

quality standards are. See id. at 451 (finding it clear

“which water quality standards apply under the permit”); id. at 516 (explaining that the “Fact Sheet” identifies “the applicable water quality standards” under

the permit). Attachment F to the permit—which sets

forth the “legal” basis for the permit’s “requirements,”

id. at 248—specifically identifies the Basin Plan, the

Ocean Plan, and State Water Board Order No. 79-16 as

the “applicable” state water quality standards, id. at

264-274 (capitalization and emphasis omitted); see id. at

308 (reiterating that the permit’s “receiving water limitations are based on Ocean Plan chapters II.C, II.D, and

II.E, and State Water Board Order No. WQ 79-16”).

Those standards, in turn, establish specific limits to

which petitioner’s discharges must conform. Chapter II

of the Ocean Plan, for instance, “sets forth limits or levels of water quality characteristics,” C.A. E.R. 514—

requiring, among other things, that “[f ]loating particulates and grease and oil shall not be visible” and that

“[t]he pH shall not be changed at any time more than

0.2 units from that which occurs naturally,” id. at 517.

Contrary to petitioner’s assertion (Pet. 21), those requirements adequately “defin[e] [petitioner’s] obligations to protect water quality.” Indeed, petitioner has

“not identified” any “language in any particular water

quality standard” that petitioner believes to be “vague

or insufficiently clear.” Pet. App. 451.

The other narrative limitation, which appears in Attachment G to the permit, states: “Neither the treatment

nor the discharge of pollutants shall create pollution,

contamination, or nuisance as defined by California Water Code section 13050.” Pet. App. 339. Section 13050,

in turn, defines “[p]ollution” as “an alteration of the

quality of the waters of the state by waste to a degree

which unreasonably affects” the “waters for beneficial

uses” or “[f ]acilities which serve these beneficial uses.”

Cal. Water Code § 13050(l) (West 2009). It defines “[c]ontamination” as “an impairment of the quality of the waters of the state by waste to a degree which creates a

hazard to the public health through poisoning or through

the spread of disease.” Id. § 13050(k). And it defines

“[n]uisance” as anything that (1) “[i]s injurious to health,

or is indecent or offensive to the senses, or an obstruction to the free use of property”; (2) “[a]ffects at the

same time an entire community or neighborhood, or any

considerable number of persons”; and (3) “[o]ccurs during, or as a result of, the treatment or disposal of wastes.”

Id. § 13050(m). Thus, in defining each of those terms,

Section 13050 specifies the adverse water-quality effects that petitioner must avoid, and petitioner has “not

identified” any “language” in Section 13050 that petitioner believes to be “vague or insufficiently clear.” Pet.

App. 451.

b. In support of its view that the narrative limitations at issue here are not specific enough, petitioner

cites (Pet. 22, 29, 33) three Clean Water Act provisions.

None of those statutory provisions, however, actually

supports petitioner’s position.

First, petitioner argues (Pet. 22, 25, 29) that the narrative limitations are too general to satisfy 33 U.S.C.

1311(b)(1)(C), which authorizes EPA to require the

achievement of “any * * * limitation” that is “necessary

to meet water quality standards.” The narrative limitations at issue here, however, are “necessary to meet water quality standards.” The court of appeals so held, see

Pet. App. 40 (upholding the narrative limitations “as a

‘backstop’ to ensure compliance with [water quality

standards]”), and petitioner does not challenge that

holding here. To the extent that petitioner equates the

term “limitation” in Section 1311(b)(1)(C) with the term

“effluent limitation” as defined in 33 U.S.C. 1362(11), its

argument reflects a misreading of the statute. See Pet.

10-11, 28-29. Unlike adjacent provisions of the Clean

Water Act, see 33 U.S.C. 1311(b)(1)(A) and (B), Section

1311(b)(1)(C) does not use the term “effluent limitation.”

Whatever the scope of that term, Section 1311(b)(1)(C)’s

expansive language is naturally read to authorize the

type of “limitation” at issue here—a limitation that focuses on “the discharge’s effect on the receiving water.”

Pet. App. 515.

Second, petitioner cites (Pet. 22) 33 U.S.C. 1342(a)(2),

which directs EPA to “prescribe conditions for [NPDES]

permits to assure compliance with the requirements

of [Section 1342(a)(1)] and such other requirements

as [EPA] deems appropriate.” But Section 1342(a)(2)

“vest[s] in [EPA] broad discretion to establish conditions for NPDES permits.” Arkansas v. Oklahoma, 503

U.S. 91, 105 (1992). That discretion encompasses EPA’s

decision to impose the narrative limitations at issue

here, which EPA determined were necessary to “ensure

compliance with [water quality standards].” Pet. App.

40; see id. at 440-450.

Third, petitioner relies (Pet. 32-35) on 33 U.S.C.

1342(k), which provides that “[c]ompliance with a permit issued pursuant to [Section 1342] shall be deemed

compliance” with various provisions of the Clean Water

Act. Section 1342(k), however, says nothing about the

level of specificity at which permit conditions must be

expressed.

c. Petitioner’s reliance (Pet. 24-27) on this Court’s

decision in PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700 (1994), is likewise misplaced. The Court in that case recognized that,

in granting a certification under 33 U.S.C. 1341, a State

may “impose limitations to ensure compliance with”

Section 1311, which “incorporates * * * by reference”

the statutory provision (33 U.S.C. 1313) that authorizes

States to adopt water quality standards. PUD No. 1,

511 U.S. at 713. The Court thus held that, as part of the

Section 1341 certification process, a State may require

that “an applicant operate [a] project consistently with

state water quality standards” as a valid “ ‘limitation’

to assure ‘compl[iance].’ ” Id. at 715 (quoting 33 U.S.C.

1341(d)) (brackets in original). That decision supports

the court of appeals’ holding in this case that, as part

of the NPDES permitting process, EPA may likewise

require observance of state water quality standards as

a valid limitation to “assure compliance.” 33 U.S.C.

1342(a)(2); see Pet. App. 33.

Petitioner reads this Court’s decision in PUD No. 1

as requiring that water quality standards “be translated

into specific limitations for individual projects.” Pet. 2526 (quoting PUD No. 1, 511 U.S. at 716) (emphasis omitted). But the Court in PUD No. 1 recognized that the

Clean Water Act “permits enforcement of broad, narrative criteria based on, for example, ‘aesthetics.’ ” 511

U.S. at 716. And the Court did not suggest that the application of such criteria to particular circumstances

must be spelled out in the certification (or permit) itself.

In any event, as explained above, the applicable water

quality standards in this case already establish “specific

limitations.” Ibid.; see pp. 10-12, supra.

2. Contrary to petitioner’s assertion (Pet. 21-24), the

decision below does not conflict with the Second Circuit’s

decision in NRDC v. United States EPA, 808 F.3d 556

(2015). That case concerned discharges of ballast water

from ships. Id. at 561-562. EPA had issued a “general”

NPDES permit to “an entire class” of vessels. Id. at 563.

And one of the limitations in the permit required all vessels to control discharges “as necessary to meet applicable water quality standards in the receiving water

body or another water body impacted by the discharges.”

Id. at 568 (citation and brackets omitted). Environmental groups challenged that “narrative” limitation, arguing that it was “too imprecise to guarantee compliance

with water quality standards.” Id. at 570. The Second

Circuit agreed, finding the limitation “insufficient to give

a shipowner guidance as to what is expected or to allow

any permitting authority to determine whether a shipowner is violating water quality standards.” Id. at 578.

That reason for invalidating a narrative limitation

does not apply here. Unlike in NRDC, the narrative limitations in this case do not state without further elaboration that discharges must “meet applicable water

quality standards.” NRDC, 808 F.3d at 568 (citation

omitted). Instead, unlike the general permit in NRDC,

the permit in this case specifically identifies the water

quality standards that apply under the limitation in Section V. See pp. 10-11, supra. And the limitation in Attachment G, unlike the limitation in NRDC, specifically

incorporates the definitions of “pollution,” “contamination,” and “nuisance” that appear in a particular provision of state law. Pet. App. 339; see pp. 11-12, supra.

Furthermore, unlike the general permit in NRDC, the

permit in this case includes several “numeric” and “narrative” requirements, in addition to the challenged limitations, that “provide [petitioner] with substantial guidance as to how to satisfy the applicable [water quality

standards].” Pet. App. 36; cf. NRDC, 808 F.3d at 577-578

(noting that the general permit did not include any “numeric” water-quality-based effluent limitations). NRDC

therefore provides no sound basis for thinking that the

Second Circuit would disapprove the inclusion in petitioner’s NPDES permit of the particular limitations at

issue in this case.

The Second Circuit’s decision in NRDC also arose in

a different context than the decision below. Whereas

NRDC involved a suit brought by environmental groups

seeking to prevent the relevant permitting authority

from “avoid[ing] responsibility for regulating discharges,” 808 F.3d at 578, this case involves a suit

brought by a discharger seeking to protect the interests

of permittees, see Pet. App. 35 (describing this case as

“the converse of NRDC ”). And the fact that NPDES

permits for combined sewer systems have long included

limitations similar to those at issue here undermines

any assertion that greater specificity is necessary to

protect a permittee’s interests. See id. at 27, 34. For

that reason as well, there is no sound basis for thinking

that the Second Circuit would reach a different conclusion than the court below in the particular context of

this case.

CONCLUSION