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

Supreme Court briefJul 19, 2024

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No. 23-753

IN THE

Supreme Court of the United States

CITY AND COUNTY OF SAN FRANCISCO,

Petitioner,

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

BRIEF FOR PETITIONER

CITY AND COUNTY OF

BEVERIDGE & DIAMOND, P.C.

SAN FRANCISCO

ANDREW C. SILTON

DAVID CHIU

JOHN C. CRUDEN

San Francisco City Attorney RICHARD S. DAVIS

1900 N Street N.W., Suite 100

YVONNE R. MERÉ

Chief Deputy City Attorney Washington, DC 20036

MACKENZIE S. SCHOONMAKER

TARA M. STEELEY

Chief of Appellate Litigation 825 3rd Avenue, 16th Floor

New York, NY 10022

Counsel of Record

DAVID S. LOUK

Counsel for Petitioner

JOHN S. RODDY

City and County of

ESTIE M. KUS

San Francisco

Deputy City Attorneys

1 Dr. Carlton B. Goodlett Pl.

July 19, 2024

San Francisco, CA 94102

(415) 554-4655

tara.steeley@sfcityatty.org

QUESTION PRESENTED

Whether the Clean Water Act allows EPA (or

an authorized State) to impose generic prohibitions

in NPDES permits that subject permitholders to

enforcement for exceedances of water quality standards

without identifying specific limits to which their

discharges must conform.

PARTIES TO THE PROCEEDING

The names of all parties appear in the case caption

on the cover page.

iii

TABLE OF CONTENTS

QUESTION PRESENTED ..........................................i

PARTIES TO THE PROCEEDING ........................... ii

TABLE OF AUTHORITIES....................................... vi

OPINIONS BELOW .................................................... 1

JURISDICTION .......................................................... 1

STATUTES AND REGULATIONS INVOLVED ....... 1

INTRODUCTION........................................................ 2

STATEMENT OF THE CASE .................................... 7

The Clean Water Act ........................................ 7

A. Congress passed the CWA because the

Nation needed an effective approach to

controlling water pollution. ...........................7

B. The CWA established NPDES permits,

which set effluent limitations to regulate

permitholders’ discharges. .............................8

1. NPDES Permits .........................................8

2. Effluent Limitations ..................................9

II.

San Francisco’s Combined Sewage and

Stormwater Treatment Facilities .................. 12

III. Case History .................................................. 14

A. EPA’s Issuance of the Oceanside Facilities’

2019 NPDES Permit .................................... 14

B. Administrative and Judicial Review of EPA’s

Permitting Decision ..................................... 17

SUMMARY OF THE ARGUMENT .......................... 19

ARGUMENT ............................................................. 23

The CWA does not authorize EPA to impose

permit conditions that hold permitholders

directly liable for the quality of receiving

waters. ............................................................. 24

A. EPA may only set effluent limitations that

restrict the nature or contents of discharges

from permitholders’ point sources. .............. 24

1. The CWA requires EPA to use effluent

limitations—not any other type of permit

condition—to meet water quality

standards. ................................................. 24

2. EPA must set effluent limitations that

restrict permitholders’ discharges at the

point source. ............................................. 31

B. The CWA’s structure reinforces that EPA

may not impose permit terms that measure

compliance based on exceedances of water

quality standards. ........................................ 34

II.

Pre- and post-enactment context confirms that

NPDES permits cannot condition compliance

on receiving water quality. ............................. 37

A. Receiving water prohibitions resuscitate the

ineffective approach to environmental

protection Congress rejected in passing the

CWA.............................................................. 38

B. EPA developed a regulatory regime premised

on an interpretation of section 301(b)(1)(C)

that aligns with San Francisco’s. ................ 41

III. The City’s straightforward interpretation of

the CWA allows the Act’s enforcement scheme

to function fairly and as designed. ................. 44

A. Receiving water prohibitions undermine the

CWA’s permit shield by depriving

permitholders of regulatory certainty. ........ 45

B. Enforcement actions demonstrate the

unfairness of prohibiting permitholders from

violating water quality standards. .............. 48

CONCLUSION .......................................................... 53

STATUTORY AND REGULATORY APPENDIX

TABLE OF AUTHORITIES

Cases

Arkansas v. Oklahoma,

503 U.S. 91, 107 (1992) .......................... 9, 10, 11, 48

Citizens Coal Council v. EPA,

447 F.3d 879 (6th Cir. 2006) .................................. 33

City & Cnty. of San Francisco v. San

Francisco Bay Reg’l Water Quality Control

Bd., No. RG19042575 (Alameda Cnty.

Super. Ct.) .............................................................. 15

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) ..................................................7

Cnty. of Maui v. Hawaii Wildlife Fund,

590 U.S. 165 (2020) .......................................... 32, 33

Corley v. United States,

556 U.S. 303 (2009) ................................................ 31

Duncan v. Walker,

533 U.S. 167 (2001) ................................................ 31

E.I. du Pont de Nemours & Co. v. Train,

430 U.S. 112 (1977) ................................................ 45

EPA v. California ex rel. State Water

Resources Control Bd.,

426 U.S. 200 (1976) ....2, 3, 7-9, 12, 16, 25, 38-40, 52

EPA v. Nat’l Crushed Stone Ass’n,

449 U.S. 64 (1980) .................................................. 23

FCC v. Fox Television Stations, Inc.,

567 U.S. 239 (2012) ................................................ 47

vii

Food & Drug Admin. v. Brown & Williamson

Tobacco Corp.,

529 U.S. 120 (2000) ................................................ 28

Groff v. DeJoy,

600 U.S. 447 (2023) ................................................ 25

Harrington v. Purdue Pharma L. P.,

144 S. Ct. 2071 (2024) ............................................ 26

INS v. Nat’l Ctr. for Immigrants’ Rts., Inc.,

502 U.S. 183 (1991) ................................................ 27

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ................................................ 46

League of Wilderness Defs. v. Forsgren,

309 F.3d 1181 (9th Cir. 2002) ............................ 9, 47

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) .......................... 26, 32, 41, 42

Los Angeles Cnty. Flood Control Dist. v. Nat.

Res. Def. Council, Inc.,

568 U.S. 78 (2013) ....................................................3

Nat. Res. Def. Council v. Metro. Water

Reclamation Dist. of Greater Chicago

175 F. Supp. 3d 1041 (N.D. Ill. 2016) .............. 49, 50

Nat. Res. Def. Council v. EPA,

808 F.3d 556 (2d Cir. 2015) ................................... 39

Nat. Res. Def. Council, Inc. v. Cnty. of

Los Angeles,

725 F.3d 1194 (9th Cir. 2013) .......................... 45, 49

New Prime Inc. v. Oliveira,

586 U.S. 105 (2019) ................................................ 26

viii

Nw. Env’t Advocs. v. City of Medford,

No. 1:18-cv-00856-CL,

2021 WL 2673126 (D. Or. June 9, 2021) ............... 49

Ohio Valley Env’t Coal. v. Fola Coal Co.,

845 F.3d 133 (4th Cir. 2017) ............................ 49, 50

Pac. Legal Found. v. Costle,

586 F.2d 650 (9th Cir. 1978) ................................. 14

Piney Run Pres. Ass’n v. Cnty. Comm’rs of

Carroll Cnty.,

268 F.3d 255 (4th Cir. 2001) .................................. 45

Powerex Corp. v. Reliant Energy Servs., Inc.,

551 U.S. 224 (2007) ................................................ 27

S. Fla. Water Mgmt. Dist. v. Miccosukee Tribe

of Indians,

541 U.S. 95 (2004) ....................................................3

Sackett v. EPA,

598 U.S. 651 (2023) .......................................... 21, 46

Stone v. INS,

514 U.S. 386 (1995) ................................................ 40

Swartz v. Beach,

229 F. Supp. 2d 1239 (D. Wyo. 2002) .................... 49

U.S. Army Corps of Eng’rs v. Hawkes,

578 U.S. 590 (2016) ................................................ 46

United States v. Atl. Rsch. Corp.,

551 U.S. 128 (2007) ................................................ 37

United States v. Taylor,

596 U.S. 845 (2022) ................................................ 26

Waterkeeper All., Inc. v. EPA,

399 F.3d 486 (2d Cir. 2005) ................................... 33

Weinberger v. Romero-Barcelo,

456 U.S. 305 (1982) ..................................................2

West Virginia v. EPA,

597 U.S. 697 (2022) ................................................ 34

Whitfield v. United States,

543 U.S. 209 (2005) .................................... 20, 36, 37

Statutes

5 U.S.C. § 706(2)(A) ............................................. 19, 24

28 U.S.C. § 1254(1) ......................................................1

33 U.S.C. § 1160(c)(5) (1970)................... 2, 4, 7, 12, 40

33 U.S.C. § 1251 et seq. ...............................................7

33 U.S.C. § 1311 ................................................ 3, 9, 35

33 U.S.C. § 1311(a) .................................... 9, 34, 36, 37

33 U.S.C. § 1311(b)(1) ............................................... 25

33 U.S.C. § 1311(b)(1)(A) ........................ 10, 26, 27, 28

33 U.S.C. § 1311(b)(1)(B) ........................ 10, 26, 27, 28

33 U.S.C. § 1311(b)(1)(C) .............................. 10, 23, 29

33 U.S.C. § 1311(b)(2)(C) .......................................... 27

33 U.S.C. § 1311(b)(2)(D) .......................................... 27

33 U.S.C. § 1311(b)(2)(F) ........................................... 27

33 U.S.C. § 1311(b)(3)(A) ..........................................27

33 U.S.C. § 1311(b)(3)(B) ..........................................27

33 U.S.C. § 1311(i)(1) ................................................27

33 U.S.C. § 1311(m)(1) ..............................................27

33 U.S.C. § 1311(m)(2) ..............................................27

33 U.S.C. § 1311(n)(7) ...............................................27

33 U.S.C. § 1313 .................................................. 11, 34

33 U.S.C. § 1313(c)(2)(A) ........................................... 11

33 U.S.C. § 1313(d)(4) ............................................... 36

33 U.S.C. § 1314(b)(1)(A) .......................................... 33

33 U.S.C. § 1314(b)(2)(A) .......................................... 33

33 U.S.C. § 1314(b)(4)(A) .......................................... 33

33 U.S.C. § 1319 ........................................................ 37

33 U.S.C. § 1319(b) .................................................... 46

33 U.S.C. § 1319(c)(1)(A) ........................................... 46

33 U.S.C. § 1319(c)(2)(A) ..................................... 35, 37

33 U.S.C. § 1319(c)(3)(A) ........................................... 36

33 U.S.C. § 1319(d) ........................................ 35, 37, 46

33 U.S.C. § 1341(a)(1) .................................................8

33 U.S.C. § 1342 ..........................................................8

33 U.S.C. § 1342(a) .................................................... 14

33 U.S.C. § 1342(a)(1) ................................... 35, 36, 37

33 U.S.C. § 1342(b) .................................................... 14

33 U.S.C. § 1342(k) .......................................... 9, 21, 45

33 U.S.C. § 1342(o)(1) ................................................ 36

33 U.S.C. § 1342(o)(3) ................................................ 36

33 U.S.C. § 1362(11) .................................. 5, 10, 30, 31

33 U.S.C. § 1362(12)(A) ............................................. 32

33 U.S.C. § 1362(14) ....................................................9

33 U.S.C. § 1365(a) .................................................... 46

33 U.S.C. § 1365(a)(1)(A) .......................................... 37

33 U.S.C. § 1365(f)............................................... 35, 37

33 U.S.C. § 1369(b)(1)(F) ........................................... 17

86 Stat. 844, Pub. L. No. 92-500, § 301 .................... 27

Cal. Water Code § 13050(l)(1)(A) .............................. 16

Regulations

40 C.F.R. § 19.4 ......................................................... 46

40 C.F.R. § 122.44(d) ................................................. 17

40 C.F.R. § 122.44(d)(1)............................................. 43

40 C.F.R. § 122.44(d)(1)(i) ................................... 11, 43

40 C.F.R. § 122.44(d)(1)(iii) ....................................... 11

40 C.F.R. § 122.44(d)(1)(vii)(A) ................................. 43

40 C.F.R. § 122.44(k)(3)............................................. 43

40 C.F.R. § 123.1(d)(1)............................................... 14

40 C.F.R. § 124.19(a) ................................................. 17

40 C.F.R. § 131.11(b) ................................................. 12

Legislative Materials

H. Rep. No. 92-911 (Mar. 3, 1972) ............................ 39

S. Comm. on Public Works,

93d Cong., 1 Legislative History of the

Water Pollution Control Act Amendments

of 1972 (1 Legis. History), Serial No. 93-1

(1973) ...................................................................... 38

S. Rep. No. 92-414 (Oct. 28, 1971) ............................ 39

Federal Register Notices

45 Fed. Reg. 33,290 (May 19, 1980) .................... 46, 47

xii

54 Fed. Reg. 23,868 (June 2, 1989) ............... 10, 42, 43

A Proclamation on the 50th Anniversary of

the Clean Water Act,

87 Fed. Reg. 63,661 (Oct. 17, 2022) .........................2

EPA,

Combined Sewer Overflow Control Policy,

59 Fed. Reg. 18,688 (Apr. 19, 1994) ....................... 14

Court Documents

Br. for EPA,

City & Cnty. of San Francisco v. EPA,

No. 21-70282 (9th Cir. Nov. 24, 2021)

(ECF No.33-1)................................................... 14, 23

Complaint in Intervention,

United States v. City & Cnty. of San

Francisco, No. 3:24-cv-02594

(N.D. Cal. May 31, 2024) (ECF No. 18-2) .............. 51

Complaint,

United States v. City & Cnty. of San

Francisco, No. 3:24-cv-02594 (N.D. Cal.

May 1, 2024) ............................................... 13, 50, 51

Other Authorities

EPA,

Basic Information about Nonpoint Source

(NPS) Pollution (Dec. 4, 2023), https://

perma.cc/YP8J-8PQ4 ............................................. 16

EPA,

Decisions of the Administrator & Decisions

of the General Counsel – National Pollutant

Discharge Elimination System Adjudicatory

Hearing Proceedings Vol. 1

(Sep. 1974 – Dec. 1975) .................................... 29, 42

xiii

EPA,

Decisions of the Administrator & Decisions

of the General Counsel – National Pollutant

Discharge Elimination System Adjudicatory

Hearing Proceedings Vol. 2

(Jan. 1976 – Dec. 1976) .......................................... 26

EPA,

EPA National Enforcement Initiative:

Keeping Raw Sewage and Contaminated

Stormwater Out of Our Nation’s Waters –

Status of Civil Judicial Consent Decrees

Addressing Combined Sewer Systems

(May 1, 2017), https://perma.cc/U7JU-477C ......... 46

EPA,

NPDES Permit Limits-TBELs and

WQBELs (Oct. 5, 2023), https://perma.cc/

A5X7-WJMX ........................................................... 10

EPA,

NPDES Permit Writers’ Manual

(Sep. 2010) .................................................. 30, 40, 44

EPA,

Technical Support Document for Water

Quality-Based Toxics Control

(Mar. 1991) ............................................................. 44

EPA,

The National Water Permit Program

(June 1, 1973) ............................................. 26, 31, 42

EPA,

Water Quality Standards Handbook

Ch. 3 (Dec. 2023) .................................................... 12

xiv

Gov’t Accountability Office,

Nonpoint Source Pollution (May 2012),

https://perma.cc/MQ6G-GLZB ............................... 47

Jeffrey M. Gaba,

Generally Illegal: NPDES General Permits

Under the Clean Water Act,

31 HARV. ENVTL. L. REV. 409 (2007) ................ 28, 48

Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal

Texts (2012) ...........................................................30

The Random House Dictionary of the English

Language (1968)......................................... 29, 32, 33

Webster’s Ninth New Collegiate Dictionary

(1986) ......................................................................29

Webster’s Seventh New Collegiate Dictionary

(1971) ...................................................................... 32

Webster’s Third New International

Dictionary(1961)............................................... 29, 33

OPINIONS BELOW

The Ninth Circuit’s July 31, 2023, opinion is reported

at 75 F.4th 1074 and is reproduced in the Petition

Appendix starting at Pet. App. 1. The Environmental

Appeals Board’s December 1, 2020, opinion denying

review of the Environmental Protection Agency’s

permitting decision is reported at 18 E.A.D. 322 and

is reproduced starting at Pet. App. 402.

JURISDICTION

The Ninth Circuit issued its decision on July 31,

2023, and entered an order denying a timely petition

for rehearing en banc on October 10, 2023, Pet. App. 487.

The City timely filed a petition for a writ of certiorari

on January 8, 2024, which the Court granted on May

28, 2024. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

STATUTES AND REGULATIONS INVOLVED

Relevant statutory and regulatory provisions are

included in the Appendix.

INTRODUCTION

Congress’ passage of the Clean Water Act in 1972

was a landmark achievement, and “[f]ive decades later,

our Nation’s waters are dramatically cleaner.” A

Proclamation on the 50th Anniversary of the Clean

Water Act, 87 Fed. Reg. 63,661 (Oct. 17, 2022). The Act’s

success stems in no small part from its structure: the

statute draws a clear distinction between water quality

standards, which set goals for the condition of navigable

waters, and effluent limitations, which restrict discharges from point sources into those waters. EPA v.

California ex rel. State Water Resources Control Bd.

(California), 426 U.S. 200, 203–04 (1976).

Prior to the CWA, federal law used water quality

standards to regulate individual dischargers. Id. at

202. Rather than restrict specific pollutant levels that

any person could discharge, that law simply imposed

liability on anyone whose discharge was “causing or

contributing” to the “reduct[ion of] the quality of such

waters below the water quality standards.” 33 U.S.C.

§ 1160(c)(5) (1970). The pre-CWA scheme “proved ineffective.” California, 426 U.S. at 202. The law’s focus

on the overall quality of receiving waters made “it very

difficult to develop and enforce standards to govern the

conduct of individual polluters.” Id. at 202–03. Such

an approach provided no clear standards to guide

conduct ex ante, allowing for enforcement only after a

waterbody became “overpolluted.” See id. at 203–04.

When Congress passed the CWA in 1972, it did so

precisely “because it recognized this national effort to

abate and control water pollution ha[d] been inadequate

in every vital aspect.” Weinberger v. Romero-Barcelo,

456 U.S. 305, 319 (1982) (cleaned up).

Just as a chef will be more successful preparing a

soup recipe that specifies the qualities and quantities

of ingredients that go into the pot rather than by

telling the line cooks collectively to avoid making the

soup “too salty,” 1 the CWA restricts the pollutants

individual dischargers may add to navigable waters

instead of making them responsible for the overall

quality of those waters. The Act implements this

approach by requiring dischargers to obtain National

Pollutant Discharge Elimination System (NPDES)

permits that set “effluent limitations” established

under section 301 of the Act, 33 U.S.C. § 1311. Effluent

limitations impose “direct restrictions on discharges”

by specifying limits to which a permitholder’s discharges must conform. California, 426 U.S. at 204.

To return to the analogy, effluent limitations

restrict the specific ingredients each line cook may

add to the soup, not the quality of the soup itself.

But as the City and County of San Francisco (San

Francisco or the City) can attest, the Environmental

Protection Agency (EPA) has gone off-recipe, telling

dischargers that they are once again responsible for

the quality of the soup, rather than their individual

additions to it. When EPA most recently renewed the

NPDES permit authorizing San Francisco’s wastewater

treatment system to discharge treated effluent into

the Pacific Ocean (the Oceanside Permit), EPA

imposed conditions that require the City to avoid any

discharge that causes or contributes to a violation of

1 For the sake of simplicity, the City adopts this Court’s “apt”

analogy of receiving water additions under the CWA to additions

to a pot of soup. See S. Fla. Water Mgmt. Dist. v. Miccosukee

Tribe of Indians, 541 U.S. 95, 110 (2004) (“[I]f one takes a ladle

of soup from a pot, lifts it above the pot, and pours it back into

the pot, one has not ‘added’ soup or anything else to the pot.”);

Los Angeles Cnty. Flood Control Dist. v. Nat. Res. Def. Council,

Inc., 568 U.S. 78, 83 (2013) (same).

water quality standards. These conditions effectively

resurrect the ineffective statutory scheme Congress

supplanted with the CWA. Indeed, one of the prohibitions in the City’s Oceanside Permit mirrors that

rejected statutory approach nearly word for word.

Compare 33 U.S.C. § 1160(c)(5) (1970) (prohibiting

discharges “causing or contributing” to “reduct[ion of]

the quality of such waters below the water quality

standards”), with Pet. App. 97 (San Francisco’s discharges may “not cause or contribute to a violation of

any applicable water quality standard”).

San Francisco petitioned the Ninth Circuit for review

of this and a similar permit condition (together, the

Generic Prohibitions), objecting that these Generic

Prohibitions impermissibly measure the City’s compliance based on whether the receiving waters meet

water quality standards, instead of whether the City’s

discharges meet effluent limitations. The Generic

Prohibitions make compliance with the CWA elusive,

because a waterbody’s ability to meet water quality

standards at any time depends on pollutants that all

sources—not just San Francisco—contribute. The City

consequently lacks advanced notice of how much it

must control its discharges to comply with the Generic

Prohibitions.

Below, a split Ninth Circuit panel erroneously upheld

the Generic Prohibitions, largely by misconstruing the

City’s petition as an objection to narrative limitations.

See Pet. App. 30–36. San Francisco has no objection

to narrative effluent limitations, descriptive requirements that function to restrict a permitholder’s discharges. Instead, the City contests only the lawfulness

of limitations that make permitholders responsible for

the overall quality of receiving waters. The panel majority glossed over the text, structure, and context of

the Act to hold that EPA may impose prohibitions

based on receiving water quality—notwithstanding

that doing so is contrary to the CWA’s text, revives the

regulatory scheme Congress abandoned, and hinders

permitholders’ ability to assess what they must do to

comply with their permits. Pet. App. 32–33.

In dissent, Judge Collins found the Generic Prohibitions “inconsistent with the text of the CWA” by

“making the ultimate, overall ‘water quality standards’ themselves the applicable ‘limitation’ for an individual discharger.” Pet. App. 62–63 (Collins, J., dissenting). The Act requires EPA “to translate the overall water quality standards” into effluent limitations

that notify permitholders how much they need to control their discharges, he argued, and “the agency’s

erasure of this crucial distinction is fundamentally inconsistent with the CWA’s regulatory approach.” Id.

at 53, 63 (emphasis in original). As Judge Collins recognized, the Act clearly instructs EPA to impose requirements that restrict permitholders’ discharges at

their point sources—the very definition of an “effluent

limitation.” See 33 U.S.C. § 1362(11).

The Ninth Circuit further erred by blessing the Generic Prohibitions as a “backstop” to a permit’s effluent limitations. Pet. App. 36. Experience shows these

provisions are wielded by EPA (and many private

plaintiffs) as a sword rather than a shield. While this

case has been pending, EPA filed a lawsuit alleging

violations of a provision in another of the City’s

NPDES permits that—like the Generic Prohibitions—

prohibits San Francisco from causing violations of water quality standards in its receiving waters. EPA alleges that the City’s discharges have caused violations

of receiving water conditions since 2013, but nowhere

specifies how, if at all, the nature or contents of the

City’s discharges did so. Based on threadbare allegations, EPA seeks hundreds of millions of dollars in

civil penalties and even more in injunctive relief, all

without affording San Francisco notice of precisely

how the City could have reasonably avoided the alleged

violations, let alone correct them now.

The approach EPA has taken in permits like San

Francisco’s is unfair, unworkable, and, as Congress

recognized, not an effective way to protect the waters

of the United States. It also directly conflicts with the

text, structure, and historical context of the CWA.

The Ninth Circuit’s decision should be reversed, and

EPA should be required to protect water quality in the

manner Congress directed.

STATEMENT OF THE CASE

I. The Clean Water Act

A. Congress passed the CWA because the

Nation needed an effective approach to

controlling water pollution.

Congress enacted the Clean Water Act, Pub. L. 92500, 86 Stat. 816, 33 U.S.C. § 1251 et seq., in 1972 to

accomplish a “total restructuring” and “complete

rewriting” of the federal laws regulating water pollution.

City of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981).

Before 1972, federal law “employed ambient water

quality standards specifying the acceptable levels of

pollution in a State’s interstate navigable waters as

the primary mechanism in its program for the control

of water pollution.” California, 426 U.S. at 202. That

law authorized enforcement against anyone whose

“discharge of matter into interstate waters” was

“causing or contributing” to the “reduc[tion of] the

quality of such waters below the water quality

standards.” 33 U.S.C. § 1160(c)(5) (1970).

This regulatory approach, in which “water quality

standards . . . serve[d] both to guide performance by

polluters and to trigger legal action to abate pollution,

proved ineffective.” California, 426 U.S. at 202. The

water quality standards were difficult to enforce

against individual dischargers for the same reason a

chef cannot easily identify which particular line cook

made the soup too salty. Because federal law focused

on navigable waters’ aggregate levels of pollution,

rather than on the “preventable causes of water pollution” discharged into them, ascertaining if dischargers

were out of compliance required “work[ing] backward

from an overpolluted body of water to determine

which point sources [we]re responsible.” Id. at 202,

204. This retrospective approach made “it very difficult

to develop and enforce standards to govern the

conduct of individual polluters.” Id. at 202–03. Worst,

it also failed to protect water quality because dischargers

lacked clear standards to guide their conduct ex ante;

they only learned of their failure to control their discharges adequately after water quality standards were

exceeded. See id. at 203.

B. The CWA established NPDES permits,

which set effluent limitations to regulate

permitholders’ discharges.

Faced with this failure, Congress enacted the CWA

to reboot water quality regulation. It “introduced two

major changes in the methods” used to control water

pollution: (1) the NPDES permit system, which establishes an individual discharger’s compliance obligations;

and (2) effluent limitations, the specific restrictions

that permits impose on the nature and contents of a

permitholder’s discharges. California, 426 U.S. at 204–

05.

1. NPDES Permits

Section 402 of the Act, 33 U.S.C. § 1342, establishes the NPDES permitting scheme. 2 Congress

established the NPDES program to regulate

dischargers individually, by making it “unlawful for

any person to discharge a pollutant without obtaining

2 The Act imposes a variety of other mandates on regulators,

including a requirement for states to issue certifications for

federally permitted activities “which may result in any discharge

into the navigable waters.” 33 U.S.C. § 1341(a)(1). That certification

scheme is not at issue in this case.

a permit and complying with its terms.” California,

426 U.S. at 205; see 33 U.S.C. § 1311(a). 3

Each NPDES permit “defines, and facilitates

compliance with, and enforcement of, a preponderance of a discharger’s obligations” under the CWA.

California, 426 U.S. at 205. The specific requirements

contained in an NPDES permit are subject to “direct

administrative and judicial enforcement.” Id. With

a handful of exceptions, an NPDES permitholder who

complies with the conditions of their permit is

“deemed to be in compliance” with the CWA’s antipollution mandate and not subject to enforcement.

Id.; see also 33 U.S.C. § 1342(k) (known as the “permit

shield”). This is true even where discharges that

comply with an NPDES permit “reach waters already

in violation of existing water quality standards.”

Arkansas v. Oklahoma, 503 U.S. 91, 107 (1992).

2. Effluent Limitations

The Act’s second major innovation was its establishment of effluent limitations: “direct restrictions on

discharges [that] facilitate enforcement by making it

unnecessary to work backward from an overpolluted

body of water to determine which point sources are

responsible.” California, 426 U.S. at 204. Section 301

of the Act, 33 U.S.C. § 1311 (“Effluent limitations”),

sets forth the Act’s requirements for setting effluent

3 The Act’s requirement to obtain an NPDES permit applies

only to “point sources”—“discernible, confined and discrete

conveyance[s] . . . from which pollutants are or may be

discharged.” 33 U.S.C. § 1362(14). Nonpoint source pollution,

which “arises from many dispersed activities over large areas,

and is not traceable to any single discrete source,” does not

require a permit. League of Wilderness Defs. v. Forsgren, 309

F.3d 1181, 1183–84 (9th Cir. 2002).

limitations—restrictions “on quantities, rates, and

concentrations of . . . constituents . . . discharged from

point sources.” 33 U.S.C. § 1362(11) (definition of

“effluent limitation”).

Section 301(b)(1) of the Act instructs EPA to establish “effluent limitations for point sources,” including

“publicly owned treatment works.” 33 U.S.C.

§ 1311(b)(1)(A)-(B). In the first instance, EPA sets

effluent limitations based on the application of

specified control technologies. See id. EPA calls these

“technology-based effluent limitations.” See EPA,

NPDES Permit Limits-TBELs and WQBELs (Oct. 5,

2023), https://perma.cc/A5X7-WJMX.

In many instances, technology-based effluent

limitations provide sufficient control of point sources’

discharges such that navigable waters will meet

applicable water quality standards. See id. However,

conditions in some waterbodies are such that

“implementing

technology-based

controls

inadequate to achieve water quality standards.” Id.

In these circumstances, section 301(b)(1)(C) requires

that EPA impose “any more stringent limitation,

including those necessary to meet water quality

standards . . . or required to implement any applicable

water quality standard.” 33 U.S.C. § 1311(b)(1)(C).

EPA has long understood section 301(b)(1)(C) to

mandate that the agency set “effluent limitations

necessary to meet all applicable water quality standards,” and has crafted a set of regulations for setting

these discharge restrictions. 54 Fed. Reg. 23,868,

23,875 (June 2, 1989) (emphasis added); Arkansas,

503 U.S. at 96 (“EPA’s Chief Judicial Officer . . . ruled

that § 301(b)(1)(C) . . . ‘requires an NPDES permit to

impose any effluent limitations necessary to comply

with applicable state water quality standards.’”

(emphasis added) (citation omitted)). The regulations

prescribe a methodology for identifying the need for

“water quality-based effluent limits” based on an

assessment of whether specific “pollutants or pollutant

parameters” in a point source’s discharge have a

“reasonable potential” to cause a waterbody to violate

water quality standards. 40 C.F.R. § 122.44(d)(1)(i),

(vii).

If EPA concludes that any pollutant in a discharge

has such a reasonable potential, EPA must impose

“effluent limit[ation]s for that pollutant.” 40 C.F.R.

§ 122.44(d)(1)(iii); Arkansas, 503 U.S. at 105

(affirming EPA’s obligation to set appropriate effluent

limitations under § 122.44(d)(1) to “ensure compliance

with the applicable water quality requirements”).

These effluent limitations may be stated numerically

(e.g., a restriction on a particular concentration of a

chemical in discharged effluent), or narratively (e.g., a

requirement to minimize solid or floatable matter

discharged from a point source).

The water quality standards that are the basis for

these effluent limitations are set under section 303 of

the Act, 33 U.S.C. § 1313, which requires States to

develop water quality standards that describe a

waterbody’s “desired condition,” subject to EPA’s review

and approval. Arkansas, 503 U.S. at 101; see 33 U.S.C.

§ 1313(c)(2)(A). These state-developed standards consist

of two primary components: (1) a water’s designated

use, such as “recreation[ ]” or “water suppl[y]”; and

(2) water quality criteria, appropriate benchmarks to

protect each designated use. 33 U.S.C. § 1313(c)(2)(A). 4

4 In California, a designated use is called a “beneficial use,”

and water quality criteria are referred to as “water quality

objectives.” See JA.32.

A State may express water quality criteria numerically (e.g., a maximum concentration of a chemical in

the receiving water) or narratively (e.g., narrative

criteria that set out broad goals for a water body). 5

See 40 C.F.R. § 131.11(b); EPA, Water Quality

Standards Handbook Ch. 3 at 6 (Dec. 2023).

Thus, while the Act retained water quality standards,

it does not replicate its predecessor’s mistake of

requiring dischargers to avoid “causing or contributing”

to conditions that fail to meet water quality standards.

33 U.S.C. § 1160(c)(5) (1970). Instead, the CWA recasts

water quality standards in a new role: serving as the

“basis for effluent limitations.” California, 426 U.S.

at 205 n.12. Under the Act, it is not the permitholder

that must comply with water quality standards, but

EPA, which has the duty to set effluent limitations for

permitholders that will ensure that water quality

standards are met.

II. San Francisco’s Combined Sewage

Stormwater Treatment Facilities

and

Despite that carefully designed regulatory scheme,

San Francisco now finds itself subject to the very obligation the CWA was designed to eliminate: a requirement not “to cause or contribute” to violations of water

quality standards. Like most cities in the United

States, see Pet. App. 7, San Francisco owns and operates facilities that collect, convey, and treat combined

sewage and stormwater. This case concerns the City’s

Oceanside Facilities, which provide combined sewage

and stormwater treatment for more than 250,000

5 For instance, California’s water quality criteria require

that “[m]arine communities . . . not be degraded,” and prohibit

“objectionable aquatic growths” or chemical conditions that

“degrade indigenous biota.” JA.38-39.

people living in the western portion of San Francisco

and include: (a) the Oceanside Water Pollution Control

Plant; and (b) over 250 miles of combined sewers. Pet.

App. 252–57. The City also operates a second combined sewer and wastewater treatment system, called

the Bayside Facilities, which serve the eastern portion

of San Francisco. The Bayside Facilities operate under

a separate NPDES permit, which is the subject of

EPA’s recently-filed enforcement action. 6

As an operator of a combined sewer system, San

Francisco is one of hundreds of older cities that experience combined sewer overflows (CSOs)—discharges

from the combined sewer before reaching the treatment

plant that occur when large storms cause flows to

exceed the sewer’s capacity. Id. at 258. The City has

made major investments in upgrading the Oceanside

Facilities to minimize CSOs and their impacts on

water

quality.

Among

other

infrastructure

improvements, the Oceanside Facilities include three

enormous transport and storage structures that can

store approximately 71 million gallons of combined

wastewater and stormwater. Pet. App. 254. These and

other improvements—part of a multibillion-dollar

citywide investment in CSO controls—reduced the

average

annual

frequency

CSOs

from

6 EPA sued San Francisco for allegedly violating a provision

of its Bayside permit that is substantively identical to the

Generic Prohibitions challenged in this case. See Complaint

¶ 100, United States v. City & Cnty. of San Francisco, No. 3:24cv-02594 (N.D. Cal. May 1, 2024) (ECF No. 1) (EPA Complaint)

(citing S.F. Bay Reg’l Water Quality Control Bd., Waste

Discharge Requirements for the Southeast Water Pollution Control

Plant et al., Order No. R2-2013-0029, NPDES No. CA0037664,

at § V.C (Aug. 19, 2013)), available at https://perma.cc/HT8MSS35.

approximately 114 per year to fewer than eight. See

JA.6; 9th Cir. ER 964; 9th Cir. Supp. ER 914.

III.

Case History

A. EPA’s Issuance of the Oceanside Facilities’

2019 NPDES Permit

EPA and the State of California, through the San

Francisco Bay Regional Water Quality Control Board

(Regional Board), jointly developed and issued the

Oceanside Facilities’ latest NPDES permit (the

Oceanside Permit) in 2019. 7 Pet. App. 80. The CWA

charges EPA with issuing permits in the first

instance, but most States—including California—are

authorized to issue permits for discharges into waters

within their jurisdiction. See 33 U.S.C. § 1342(b); 40

C.F.R. § 123.1(d)(1). 8 Only EPA, however, may issue

permits for ocean discharges occurring more than

three miles from shore. Pac. Legal Found. v. Costle,

586 F.2d 650, 655 (9th Cir. 1978), rev’d on other

grounds, Costle v. Pac. Legal Found., 445 U.S. 198

(1980). Because the Oceanside Facilities discharge both

7 The CWA classifies NPDES permits for combined sewer

systems in phases. Permitholders that have yet to develop a longterm plan to control their CSOs and select control projects are in

“Phase I,” and those that have completed their plans and selected

control projects fall into “Phase II.” See EPA, Combined Sewer

Overflow Control Policy, 59 Fed. Reg. 18,688, 18,696 (Apr. 19,

1994). Because San Francisco has already selected (and completed

building) its CSO control projects, EPA has placed San Francisco’s

permit in Phase II. See Br. for EPA 18, 23, 29, City & Cnty. of

San Francisco v. EPA, No. 21-70282 (9th Cir. Nov. 24, 2021) (ECF

No. 33-1).

8 For the reader’s convenience, this brief throughout refers

only to EPA, but this Court’s interpretation of the Act will govern

NPDES permits that may be issued under the Act by either EPA

or an authorized State. See 33 U.S.C. § 1342(a), (b).

close to and more than three miles from the shore, San

Francisco must obtain an NPDES permit from both

EPA and the Regional Board. 9

The Oceanside Permit comprises over 100 pages of

detailed requirements for San Francisco’s discharges

and includes both technology- and water quality-based

effluent limitations. The latter include two distinct sets

of water quality-based effluent limitations: (1) a numeric

effluent limitation that applies during dry weather;

and (2) narrative limitations that set comprehensive

management requirements for the operation of the

Oceanside Facilities during wet weather. Pet. App. 95–

97, 128–31.

Despite the wide-ranging scope of those effluent

limitations, EPA also included the two challenged

Generic Prohibitions in the final Oceanside Permit

over San Francisco’s objections. 9th Cir. ER 921–29.

Resurrecting the regulatory scheme that Congress

expressly abandoned in 1972, EPA inserted into Section

V—entitled “Receiving Water Limitations”—a condition

that a discharge may “not cause or contribute to a

violation of any applicable water quality standard.”

Pet. App. 97. EPA included a similar condition in

Attachment G, § I.I.1 that no “discharge of pollutants

shall create pollution, contamination, or nuisance

as defined by California Water Code section 13050.” Id.

at 339. California defines “pollution” by reference

to whether a surface water meets the beneficial use

9 Because the Regional Board’s approval of the Permit is a

distinct agency action, San Francisco separately challenged the

Regional Board’s decision in a state court proceeding. City &

Cnty. of San Francisco v. San Francisco Bay Reg’l Water Quality

Control Bd., No. RG19042575 (Alameda Cnty. Super. Ct.). This

state court litigation is stayed pending resolution of proceedings

in this Court.

component of the state’s water quality standards. See

Cal. Water Code § 13050(l)(1)(A) (defining “pollution”

to include “alteration of the quality of the waters of

the state . . . which unreasonably affects . . . [t]he waters

for beneficial uses”).

Thus, both Section V and Attachment G, § I.I.1—

the Generic Prohibitions—condition San Francisco’s

compliance on the overall quality of receiving waters.

Because water quality varies over time in response to

additional sources of pollutants and other factors, San

Francisco’s compliance with those permit conditions

will not be knowable at the time of discharge. 10

Instead, it often can only be determined by “work[ing]

backward” when the Pacific Ocean fails to meet water

quality standards, California, 426 U.S. at 204, to

determine if San Francisco’s discharges “create[d],”

“contribute[d] to” or “cause[d]” that deficiency. Pet.

App. 97, 339. In other words, San Francisco is subject

to the exact regulatory approach that the CWA was

supposed to supplant.

10 Nor can San Francisco control all nonpoint sources of

pollution into the Pacific Ocean, even though “nonpoint source

pollution is the leading remaining cause of water quality

problems.” EPA, Basic Information about Nonpoint Source (NPS)

Pollution (Dec. 4, 2023), https://perma.cc/YP8J-8PQ4.

B. Administrative and Judicial Review of

EPA’s Permitting Decision

San Francisco petitioned for review with EPA’s

Environmental Appeals Board (EAB) to challenge the

Generic Prohibitions and two other provisions. See 40

C.F.R. § 124.19(a). As relevant here, the City objected

that neither section 301(b)(1)(C) nor any other

provision of the Act authorized the agency to impose

the Generic Prohibitions. The EAB issued an order on

December 1, 2020, denying San Francisco’s petition

and concluding, among other things, that section

301(b)(1)(C) empowered the agency to impose the

Generic Prohibitions. See Pet. App. 433. EPA issued

its Notice of Final Permit Decision—marking final

agency action—on December 22, 2022. Pet. App. 77–79.

The City then timely petitioned for review in the

Ninth Circuit to challenge both the Generic Prohibitions and another provision of the Oceanside Permit.

See 33 U.S.C. § 1369(b)(1)(F). A divided Ninth Circuit

panel denied San Francisco’s petition and concluded,

as relevant here, that the Generic Prohibitions are

“consistent with the CWA and its implementing regulations.” Pet. App. 34. The panel majority held that

section 301(b)(1)(C) of the Act allows EPA to condition

compliance on the overall quality of receiving waters,

rather than on the nature or contents of the permitholder’s discharges, whenever EPA determines doing

so is “necessary.” 11 Pet. App. 32–33.

Judge Collins dissented, finding the Generic

Prohibitions “invalid” because they are “inconsistent

11 The panel majority also pointed to similar language in 40

C.F.R. § 122.44(d) as a basis for EPA’s authority to impose

generic prohibitions against violating water quality standards.

Pet. App. 32–33.

with the text of the CWA.” Pet. App. 50, 62. Analyzing

section 301(b)(1)(C), Judge Collins concluded that the

CWA “draws an explicit distinction between the ‘limitations’ that the agency must . . . impose on a particular

permittee[ ] and the overall ‘water quality standards’”

applicable to the relevant receiving water. Pet. App.

at 62. He wrote that the Generic Prohibitions “ignore

this critical distinction by making the ultimate, overall

‘water quality standards’ themselves the applicable

limitation for” San Francisco. Id. at 63. By conditioning

San Francisco’s ability to comply with its permit on

receiving water quality, Judge Collins concluded, EPA

“ha[d] fundamentally abdicated the regulatory task

assigned to it under the CWA”: prescribing effluent

limitations that restrict the pollutants in the City’s

discharges at a level that would meet or implement

water quality standards. Id. at 64.

SUMMARY OF THE ARGUMENT

The text, structure, and pre- and post-enactment

context of the CWA all make clear the Act does not

authorize EPA to impose NPDES permit requirements that condition permitholders’ compliance on

whether receiving waters meet applicable water

quality standards. EPA has argued, and the Ninth

Circuit

erroneously

concluded,

that

section

301(b)(1)(C) of the Act empowers the agency to impose

prohibitions of this kind. That section gives EPA no

such authority. Accordingly, EPA’s imposition of the

Generic Prohibitions is “not in accordance with law.”

5 U.S.C. § 706(2)(A).

I. The Act’s text and structure do not authorize

EPA to condition a permitholder’s compliance on the

quality of receiving waters. Section 301(b)(1)(C) commands EPA to use a specific regulatory tool to protect

water quality: effluent limitations, which Congress

defined to be restrictions on the nature or contents of

a permitholder’s discharges from their point sources.

A.1. Section 301(b)(1)(C) grants EPA the authority

to use only one mechanism to control permitholders’

discharges: effluent limitations. The sequencing of

terms both in subsection (b)(1) and throughout section

301 makes clear that subsection (b)(1)(C) is a narrow

directive to set more stringent “effluent limitations”—

not a grant of unfettered authority to impose the

Generic Prohibitions. Reading section 301(b)(1)(C) to

empower EPA to impose such prohibitions would render

the provision illogical and short-circuit its requirement

that “limitations” set under this provision be more

stringent than other effluent limitations set pursuant

to section 301(b)(1).

2. Congress’ instruction to EPA to set effluent

limitations precludes the agency from imposing permit

requirements that condition compliance on receiving

water quality. The Act’s definition of the term makes

clear that effluent limitations must restrict a permitholder’s discharges at the point source, prior to their

addition to navigable waters.

B. The Act’s structure confirms EPA may not

make permitholders responsible for exceedances of

water quality standards. Numerous provisions identify

which of the CWA’s requirements bind individual

permitholders, and none contemplates that a permitholder is directly liable for violations of section 303,

the Act’s water quality standards provision. It flies in

the face of logic—and Congress’ carefully drafted

regulatory regime—to interpret section 301(b)(1)(C)

to enable EPA to do what Congress declined to do

throughout the CWA. This Court should resist EPA’s

invitation to insert a requirement Congress expressly

declined to add. See Whitfield v. United States, 543

U.S. 209, 216–17 (2005).

II. The CWA’s pre-enactment context and early

post-enactment agency interpretations confirm what

the Act’s text makes clear: EPA may not impose permit

terms such as the Generic Prohibitions that condition

a permitholder’s compliance on receiving water

conditions.

A. The City’s interpretation ensures EPA cannot

revive aspects of the ineffective pollution control

system the CWA replaced, which regulated

dischargers based on whether they were causing or

contributing to exceedances of water quality standards. Congress designed section 301(b)(1)(C) to depart

from this failed approach by requiring EPA to impose

effluent limitations that make permitholders respon-

sible for what they can and must control—the nature

and content of their own discharges.

B. EPA’s longstanding agency interpretations of

section 301(b)(1)(C) confirm that this provision is not

a license to condition permitholders’ compliance on

receiving water quality. Based on its understanding

that section 301(b)(1)(C) requires it to set effluent

limitations, EPA has developed an entire regulatory

regime that demonstrates the agency possesses the tools

necessary to protect water quality without resorting

to unlawful permit terms like the Generic Prohibitions.

III. The Act’s permit shield and enforcement

provisions confirm the soundness of the City’s

interpretation of section 301(b)(1)(C) and the Act.

A. The City’s interpretation ensures permitholders

face the “crushing consequences” of the CWA’s enforcement machinery only when they violate pollution control

obligations clearly defined in their permits. Sackett v.

EPA, 598 U.S. 651, 660 (2023) (cleaned up). EPA’s

interpretation, by contrast, unsettles Congress’ careful

pairing of potentially severe enforcement penalties

with the Act’s guarantee of finality codified in the

statute’s permit shield, which deems conformity to a

permit’s specific requirements to be compliance with

the Act. See 33 U.S.C. § 1342(k).

B. Recent litigation, including a lawsuit brought

by EPA against San Francisco, shows how requirements

like the Generic Prohibitions harm permitholders. In

lawsuits seeking to enforce such conditions, courts

must decide after the fact how much permitholders

should have controlled their discharges, making permit

obligations “hopelessly indeterminate” and impeding

permitholders’ ability to assess their compliance ex ante.

Sackett, 598 U.S. at 681 (cleaned up). San Francisco

now faces such a lawsuit, brought by EPA, that seeks

to enforce a condition in the City’s Bayside permit

that—like the Generic Prohibitions—defines compliance

by reference to receiving water quality. Even after

being sued, San Francisco still does not know what

EPA contends San Francisco has done to violate that

permit condition, nor what, if anything, the City can

do to avoid future enforcement actions, short of

stopping wastewater treatment operations altogether.

Interpreting section 301(b)(1)(C) consistent with its

text, structure, and context ensures no permitholder

will face such a predicament.

ARGUMENT

The CWA does not allow EPA (or an authorized

State) 12 to impose permit conditions that—like the

Generic Prohibitions—condition a permitholder’s compliance on the quality of receiving waters. EPA has

argued, and the Ninth Circuit incorrectly held, that

section 301(b)(1)(C) of the Act, 33 U.S.C. § 1311(b)(1)(C),

authorizes the imposition of any receiving water

prohibition that EPA deems “necessary to meet water

quality standards.” See Pet. App. 32–33; Br. in Opp.

to Pet. for Writ of Cert. 2 (EPA BIO); see also Br. for

EPA, supra note 7, at 52. Section 301(b)(1)(C),

however, gives EPA no such discretion.

The Act’s text and structure instead establish one

mechanism for ensuring water quality standards are

met by permitholders: effluent limitations, which

regulate the nature and contents of a permitholder’s

discharges at the point source. Nothing in the Act’s

text or structure authorizes EPA to condition a permitholder’s compliance on the quality of receiving waters.

That understanding of the Act comports with this

Court’s longstanding expectation that EPA will

“translate[] Congress’ broad goal of eliminating the

discharge of pollutants into the navigable waters into

specific requirements that must be met by individual

point sources.” EPA v. Nat’l Crushed Stone Ass’n, 449

U.S. 64, 69 (1980) (cleaned up). That reading also

ensures the Act’s onerous enforcement consequences

only befall those permitholders who violate clear, ex

ante requirements in their permits.

12 As noted above, both EPA and authorized States may

issue NPDES permits, see supra at 14–15 & note 8, but for the

reader’s convenience, this brief throughout refers only to EPA.

The Generic Prohibitions thus exceed EPA’s

authority under section 301(b)(1)(C) because they do

not restrict the City’s discharges at its point sources.

Because the Generic Prohibitions are not effluent

limitations that section 301(b)(1)(C) authorizes the

agency to impose, they should be set aside as “not in

accordance with law,” 5 U.S.C. § 706(2)(A), and the

Court should reverse the Ninth Circuit’s contrary

holding.

I. The CWA does not authorize EPA to impose

permit conditions that hold permitholders

directly liable for the quality of receiving

waters.

Section 301(b)(1)(C)’s text and the Act’s structure

make clear EPA must use effluent limitations in

NPDES permits to ensure discharges are sufficiently

regulated to meet water quality standards. The

statutory definition of effluent limitations does not

allow EPA to condition a permitholder’s compliance

on receiving water quality. Moreover, reading section

301(b)(1)(C) as authorizing EPA to do so would flout

the text of other parts of section 301(b) and do violence

to related provisions of the Act.

A. EPA may only set effluent limitations that

restrict the nature or contents of

discharges from permitholders’ point

sources.

1. The CWA requires EPA to use

effluent limitations—not any other

type of permit condition—to meet

water quality standards.

Section 301(b)(1)(C) does not give the agency broad

discretion to impose permit conditions that simply

direct permitholders to avoid violating water quality

standards. Rather, Congress directed EPA to use

effluent limitations—the specific regulatory tool that

Congress determined would effectively control pollution

by establishing “direct restrictions on discharges.”

California, 426 U.S. at 204.

“[S]tatutory interpretation must begin with, and

ultimately heed, what a statute actually says.” Groff

v. DeJoy, 600 U.S. 447, 469 (2023) (cleaned up). Here,

section 301(b) provides in relevant part:

In order to carry out the objective of

this chapter there shall be achieved –

(A) . . . effluent limitations for point

sources, . . . which shall require the

application of the best practicable control

technology currently available as defined

by the Administrator pursuant to section

1314(b) of this title . . . ;

(B) for publicly owned treatment

works . . . , effluent limitations based upon

secondary treatment as defined by the

Administrator pursuant

to section

1314(d) . . . ; or,

including those necessary to meet water

quality standards, treatment standards,

or schedules of compliance, established

pursuant to any State law or regulations

. . . or any other Federal law or regulation,

or required to implement any applicable

water quality standard established pursuant to this chapter.

33 U.S.C. § 1311(b)(1) (emphases added).

Although section 301(b)(1)(C) uses only the word

“limitation,” its use within the broader context of

section 301 makes clear that Congress deployed it as

a shorthand for the defined term “effluent limitation.”

See United States v. Taylor, 596 U.S. 845, 856 (2022)

(“a law’s terms are best understood by the company

[they] kee[p]” (cleaned up)). To begin, the two (and

only) uses of “limitations” preceding (C) both require

the achievement of “effluent limitations” based on

specified technologies, 33 U.S.C. § 1311(b)(1)(A), (B).

Cf. New Prime Inc. v. Oliveira, 586 U.S. 105, 110, 111

(2019) (“statute’s terms and sequencing” show “antecedent statutory provisions limit the scope of” the

provision in question)); Harrington v. Purdue Pharma

L. P., 144 S. Ct. 2071, 2084 (2024) (“When resolving a

dispute about a statute’s meaning, we sometimes look

for guidance not just in its immediate terms but in

related provisions as well.”)

EPA itself has long recognized—since shortly after

Congress passed the Act—that “the position of

§ 301(b)(1)(C) following two other subparagraphs

which clearly establish effluent limitations favors a

construction of subparagraph (C) by which it also

This

‘establishes’

effluent

limitations.” 13

interpretation, coming shortly after the passage of the

Act, is especially telling. See Loper Bright Enters. v.

13 EPA, Decisions of the Administrator & Decisions of the

General Counsel – National Pollutant Discharge Elimination

System Adjudicatory Hearing Proceedings Vol. 2 at 116 (Jan.

1976 – Dec. 1976) (Jan. 22, 1976 decision of EPA’s General

Counsel) (emphasis added); see also EPA, The National Water

Permit Program 12 (June 1, 1973) (“more stringent effluent

limitations are to be imposed” when technology-based controls

are insufficient to attain water quality standards (emphasis

added)).

Raimondo, 144 S. Ct. 2244, 2258 (2024) (“[An] Executive

Branch interpretation [that] was issued roughly

contemporaneously with enactment of the statute . . .

can inform [a court’s] determination of what the law

is.” (cleaned up)).

That interpretation also ensures that “limitation”

has a consistent meaning—as a shorthand for

“effluent limitation”—throughout section 301. See

Powerex Corp. v. Reliant Energy Servs., Inc., 551 U.S.

224, 232 (2007) (invoking the consistent-usage canon

to find a term used in related provisions enacted at

the same time had the same meaning). For instance,

section 301(i)(1) refers to “limitations under subsection (b)(1)(B),” 33 U.S.C. § 1311(i)(1), a subsection

that addresses only “effluent limitations.” Id.

§ 1311(b)(1)(B). Other provisions of section 301 also

describe “effluent limitations” before referring to them

again simply as “limitations.” See id. § 1311(b)(2)(C)–

(D), (F), (3)(A)–(B), (m)(1)–(2), (n)(7). Indeed, Congress

removed any doubt that section 301(b)(1)(C)’s

“limitation” should have the same meaning as it does

elsewhere by providing section 301 an unambiguous

title: “Effluent limitations,” 86 Stat. 844, Pub. L. No.

92-500, § 301. See INS v. Nat’l Ctr. for Immigrants’

Rts., Inc., 502 U.S. 183, 189 (1991) (“the title of a

statute or section can aid in resolving an ambiguity in

the legislation’s text”).

Two additional aspects of section 301(b)(1)(C)

confirm that this provision authorizes EPA to impose

only effluent limitations. First, section 301(b)(1)(C)’s

use of a comparative adjective—“more stringent”—

requires a comparison to some other limitation preceding it. The only “limitations” preceding subsection

(b)(1)(C) are the “effluent limitations” in subsections

(b)(1)(A) & (B). Thus, the comparison of stringency that

the statute requires is only possible if the “limitation”

required by section 301(b)(1)(C) is the same kind as

those in the preceding subsections (A) and (B):

“effluent limitations.” Id. § 1311(b)(1)(A) –(B).

The converse interpretation hinders the comparison the text demands. A “limitation” that conditions

compliance on receiving water quality will necessarily

vary in its stringency depending on circumstances in

the receiving water that can include “other sources of

pollutants into the applicable waters,” Pet. App. 64

(Collins, J., dissenting) (emphasis in original), as well

as variations in flow or other conditions. 14 The

relative stringency of a permit condition like the

Generic Prohibitions will thus vary from season to

season, and day to day. When a receiving water’s

conditions are comparatively pristine, for example,

such a prohibition would allow a permitholder to

discharge in greater amounts than permitted by their

technology-based effluent limitations set under

subsections (b)(1)(A) – (B). In those circumstances,

the permit’s receiving water prohibition would be invalid

under section 301(b)(1)(C) because it would be less

stringent than the permit’s technology-based effluent

limitations.

Second, reading section 301(b)(1)(C) to require

EPA to set only effluent limitations ensures the

remainder of the provision functions coherently. See

Food & Drug Admin. v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 133 (2000) (“[a] court must . . .

interpret the statute as a symmetrical and coherent

regulatory scheme . . . . and fit, if possible, all parts into

14 See Jeffrey M. Gaba, Generally Illegal: NPDES General

Permits Under the Clean Water Act, 31 Harv. Envtl. L. Rev. 409,

441 (2007).

a harmonious whole” (cleaned up)). Section 301(b)(1)(C)

requires that the more stringent limitations will “meet

water quality standards” or “implement any applicable

water quality standard.” 33 U.S.C. § 1311(b)(1)(C)

(emphasis added). Both terms resist an interpretation

that would allow EPA to impose a “limitation” that

demands a permitholder avoid receiving water

conditions inconsistent with water quality standards.

“To meet” generally means “to conform” or “to

satisfy,”15 particularly with “exactitude and precision.” 16

Similarly, “to implement” means “to give practical

effect to and ensure of actual fulfillment by concrete

measures”17—an interpretation the EPA Administrator

long ago adopted with respect to this provision. 18

These verbs connote the need for a “limitation” to

impose precise, concrete restrictions on a permitholder’s

discharges.

“Meet,” The Random House Dictionary of the English

Language 831 (1968).

16 “Meet,” Webster’s Ninth New Collegiate Dictionary 738

(1986).

17 “Implement,” Webster’s Third New Int’l Dictionary 1134

(1961); “Implement,” The Random House Dictionary of the

English Language 667 (1968) (“to put into effect according to or

by means of a definite plan or procedure”).

18 “The word ‘implement,’ as used in the statute, is a

transitive verb which I interpret as meaning to carry something

into effect over a period of time, as opposed to the actual

realization or fulfilment of an objective.” EPA, Decisions of the

EPA Administrator & Decisions of the General Counsel –

National Pollutant Discharge Elimination System Adjudicatory

Hearing Proceedings Vol. 1 at 121 (Sep. 1974 – Dec. 1975)

(Decision of the Administrator, Oct. 10, 1975) (emphasis added)

(hereinafter Decisions of the EPA Administrator & Decisions of

the General Counsel Vol. 1).

An effluent limitation provides the precision and

specificity demanded by Congress’ choice of verbs.

The Act requires an effluent limitation to restrict

“quantities, rates, and concentrations of” pollutants in

a permitholder’s discharge. 33 U.S.C. § 1362(11). For

this reason, EPA’s guidance devotes a whole chapter

to explaining how permit writers should develop

specific effluent limitations that will meet and implement water quality standards. See EPA, NPDES

Permit Writers’ Manual (NPDES Manual) p. 6-32

(Sep. 2010) (instructing permit writer to “translate [a

receiving water’s loading capacity] into effluent limitations” because “[t]he requirements of a [receiving

water’s loading capacity] generally must be interpreted

in some way to be expressed as an effluent limitation”).

By contrast, permit terms like the Generic Prohibitions—which simply tell a permitholder not to “create

pollution,” Pet. App. 339, or not to “cause or contribute

to a violation of any applicable water quality standard,”

id. at 97—lack concrete or specific restrictions. In

effect, reading section 301(b)(1)(C) to allow EPA to

impose the Generic Prohibitions would enable the

agency simply to impose water quality standards “to

meet water quality standards” or “implement any

applicable water quality standard.” Such an interpretation is illogical and, worse yet, effectively reads

out of the statute Congress’ directive that EPA set

“limitations” that are distinct from—but that meet

and implement—water quality standards. 19 The Court

19 See Pet. App. 67 (Collins, J., dissenting) (Interpreting the

Act to allow EPA to impose the Generic Prohibitions enables “the

agency’s wholesale erasure of the distinction between the

‘limitations’ to be crafted by the agency and the ultimate water

should not countenance a reading of EPA’s authority

that would nullify these critical terms in section

301(b)(1)(C). See Corley v. United States, 556 U.S. 303,

314 (2009) (It is “one of the most basic interpretive

canons, that [a] statute should be construed so that

effect is given to all its provisions, so that no part will

be inoperative or superfluous, void or insignificant.”)

(cleaned up)); Duncan v. Walker, 533 U.S. 167, 174

(2001) (The Court is “especially unwilling to [adopt an

interpretation that nullifies a word in a statute] when

the term occupies so pivotal a place in the statutory

scheme.”).

2. EPA must set effluent limitations that

restrict permitholders’ discharges at

their point sources.

By requiring EPA to impose effluent limitations

under section 301(b)(1)(C), Congress directed EPA to

impose permit conditions that restrict the nature of

permitholders’ discharges at their point sources. The

Act defines an “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,” 33 U.S.C. § 1362(11) (emphasis

added). Six months after the Act’s passage, EPA had

already begun interpreting this definition to demand

that the agency restrict the contents of a discharge at

the point source, rather than restrict the receiving

water conditions these discharges can cause. See EPA,

The National Water Permit Program, supra note 12,

at 7 (explaining how effluent limitations regulate “the

amount of pollutants in discharged wastewater or on

quality standards those limitations are supposed to help to

achieve.” ).

the volume of wastewater discharged”) (emphasis

added); see also infra at 41–42.

EPA’s “contemporaneous[]” and “consistent” interpretation is “especially useful in determining the

statute’s meaning,” Loper Bright, 144 S. Ct. at 2262,

and is confirmed by two components of the definition

of “effluent limitation.” First, the Act specifies that an

effluent limitation must restrict pollutants “which are

discharged,” indicating that the restriction must

restrain the release or emission of discharges prior to

leaving the point source and before their addition to a

navigable water. Although the Act does not define the

verb “discharge,” the term ordinarily refers to a fluid

being “emit[ted]. 20 The CWA itself also defines a

“discharge of pollutant”—which an effluent limitation

regulates—as an “addition of any pollutant to navigable

waters.” 33 U.S.C. § 1362(12)(A) (emphasis added);

see also Cnty. of Maui v. Hawaii Wildlife Fund, 590

U.S. 165, 189 (2020) (Thomas, J., dissenting) (word

“addition” in statutory definition of “discharge”

“denote[s] an augmentation or increase” such that the

meaning of “discharge” is “the augmentation of navigable waters”). Congress’ word choice thus directs

EPA to restrict the discharge of pollutants, rather

than prohibit the effects those (and other) pollutants

collectively can have once they have already entered

navigable waters.

Second, Congress’ instruction that EPA restrict

discharges “from point sources” reinforces that effluent

limitations must condition compliance at the

discharge’s point of origin, rather than in the receiving

20 “Discharge,” Webster’s Seventh New Collegiate Dictionary

237 (1971); “Discharge,” The Random House Dictionary of the

English Language 377 (1968).

water. As used in the definition, “from” functions to

“indicate a starting point” or the location “where an

actual physical movement . . . has its beginning.” 21

Moreover, the Act’s coupling of this preposition with

a source—a “point source”—“connote[s] an origin.”

Cnty. of Maui, 590 U.S. at 179. The definition thus

directs EPA to set restrictions that apply at their

origin—the point source—rather than in the receiving

water. 22

This reading also comports with how the statute

elsewhere characterizes effluent limitations as

restrictions on discharges rather than restrictions on

receiving water effects. In Section 304(b) of the Act,

Congress required EPA to establish “guidelines” for

“adopting or revising effluent limitations” and specified

that these guidelines “identify, in terms of amounts of

constituents and chemical, physical, and biological

characteristics of pollutants, the degree of effluent

reduction attainable” by point sources. 33 U.S.C.

§ 1314(b)(1)(A), (2)(A), (4)(A) (emphasis added). This

instruction confirms that effluent limitations should

restrict the contents of a permitholder’s discharge, not

21 “From,” Webster’s Third New Int’l Dictionary 913; “From,”

The Random House Dictionary of the English Language 570

(1968) (“used to specify a starting point”).

22 EPA is of course free to impose narrative (i.e., nonnumeric) effluent limitations so long as they restrict the nature

of a point source’s discharges. See Citizens Coal Council v. EPA,

447 F.3d 879, 865 (6th Cir. 2006) (EPA may impose narrative

requirements because “effluent limitations are not limited to

numeric discharge[ ] restrictions”); Waterkeeper All., Inc. v. EPA,

399 F.3d 486, 502 (2d Cir. 2005) (numeric effluent limitations in

the form of required management practices meet the CWA’s

definition of “effluent limitations”). Narrative requirements that

restrict the nature of a point source’s discharges—rather than

receiving water quality conditions—satisfy the Act’s definition.

its effect (in combination with other sources of

pollution) once in the receiving water.

B. The CWA’s structure reinforces that EPA

may not impose permit terms that measure

compliance based on exceedances of water

quality standards.

Numerous critical provisions in the Act reinforce

that section 301(b)(1)(C) cannot authorize EPA to

impose receiving-water-based restrictions like the

Generic Prohibitions. “It is a fundamental canon of

statutory construction that the words of a statute

must be read in their context and with a view to their

place in the overall statutory scheme.” West Virginia

v. EPA, 597 U.S. 697, 721 (2022) (cleaned up). Reading

section 301(b)(1)(C) to require EPA to restrict the

contents of permitholders’ discharges—as opposed to

the receiving water conditions caused by them—

honors Congress’ choice not to measure permitholders’

compliance based on whether waterbodies meet

applicable standards.

Four sets of provisions identify which of the Act’s

requirements bind individual permitholders, and

none contemplates that a permitholder’s compliance

can be conditioned on the quality of the receiving

waters. First, section 301(a) makes it unlawful for any

person to discharge a pollutant without complying

with effluent limitations set under section 301 and six

other sections of the Act, but Congress chose not to

condition compliance on section 303, 33 U.S.C. § 1313,

the Act’s water quality standards provision. 23 Second,

23 See 33 U.S.C. § 1311(a) (“Except as in compliance with

this section and sections 1312, 1316, 1317, 1328, 1342, and 1344

of this title, the discharge of any pollutant by any person shall be

unlawful.”).

section 402(a)(1) of the Act requires permitted discharges to meet the requirements of six other sections of

the Act, including section 301, but section 303 is notably

not among them. 24 Third, section 309, the Act’s

enforcement provision, identifies several different

ways permitholders may be held liable for violations

of particular sections of the CWA, but section 303 is

not included as a basis for liability in those lists. 25

Last, the Act’s citizen suit provision—section 505—

identifies sections of the CWA that impose requirements that can form the basis for a private enforcement (citizen suit) action, and Congress again omitted

section 303. 26 Congress’ omission of section 303 from

24 See id. § 1342(a)(1) (A discharge may only be permitted

“upon condition that such discharge will meet . . . all applicable

requirements under sections 1311, 1312, 1316, 1317, 1318, and

1343.”).

25 See, e.g., id. § 1319(c)(2)(A) (holding criminally liable any

person who “knowingly violates section 1311, 1312, 1316, 1317,

1318, 1321(b)(3), 1322(p), 1328, or 1345 of this title, or any

permit condition or limitation implementing any of such sections

in a[n NPDES] permit”); id. § 1319(d) (imposing civil penalties

on anyone “who violates section 1311, 1312, 1316, 1317, 1318,

1322(p), 1328, or 1345 of this title, or any permit condition or

limitation implementing any of such sections in [an NPDES]

permit”).

26 See id. § 1365(f) (identifying “(1) . . . an unlawful act under

subsection (a) of section 1311 of this title; (2) an effluent

limitation or other limitation under section 1311 or 1312 of this

title; (3) standard of performance under section 1316 of this title;

(4) prohibition, effluent standard or pretreatment standards

under section 1317 of this title; (5) a standard of performance or

requirement under section 1322(p) of this title; (6) a certification

under section 1341 of this title; (7) a permit or condition of a

permit issued under section 1342 of this title . . . ; or (8) a

regulation under section 1345(d) of this title”).

these provisions was no mistake. 27 Moreover, section

402 elsewhere references section 303, but does so in a

manner that instructs the agency on how to set

effluent limitations, rather than to make water

quality standards themselves enforceable against

dischargers. 28

Construing the Act to allow EPA to impose permit

terms that condition compliance on the quality of

receiving waters effectively rewrites sections 301(a),

402(a)(1), 309, and 505 to insert compliance

obligations under section 303 where Congress

expressly omitted them. By making permitholders

directly responsible for meeting water quality

standards—as opposed to effluent limitations—those

prohibitions would add section 303 to the list of

sections that the Act demands “compliance with” in

order to discharge lawfully. 33 U.S.C. § 1311(a). And

it would likewise function to add section 303 to Section

402(a)(1)’s list of sections “that [a] discharge will

meet,” despite Congress’ express declination to impose

any such requirement. Id. § 1342(a)(1). Further,

dischargers would be subject to civil liability (in an

action brought by EPA or a private citizen) as well as

A single subsection of 309 contemplates knowing

endangerment liability stemming from section 303’s requirements,

see 33 U.S.C. § 1319(c)(3)(A), which “clearly demonstrate[s] that

[Congress] knows how to impose such a requirement when it

wishes to do so.” Whitfield, 543 U.S. at 216.

28 See 33 U.S.C. § 1342(o)(1) (instructing EPA not to issue a

permit with “effluent limitations which are less stringent than

the comparable effluent limitations in the previous permit

[when] in compliance with section 1313(d)(4)”); id. §1342(o)(3)

(same, as to a permit with “a less stringent effluent limitation if

the implementation of such limitation would result in a violation

of a water quality standard under section 1313”).

criminal liability for violating Section 303 or permit

terms implementing that section, even though the

statute’s text provides otherwise.

See, e.g., id.

§ 1319(c)(2)(A), (d); id. § 1365(a)(1)(A), (f). In effect,

EPA asks this Court to insert a requirement Congress

expressly declined to add. See Whitfield, 543 U.S. at

217 (where Congress has demonstrated it knows how

to impose a requirement but “has chosen not to do so”

in a statute, “we will not override that choice”

(emphasis in original)); see also Antonin Scalia &

Bryan A. Garner, Reading Law: The Interpretation of

Legal Texts 94 (2012) (an “absent provision cannot be

supplied by the courts”).

The City’s reading of section 301(b)(1)(C) does no

such violence to the statute. Under the City’s interpretation, permitholders simply must comply with the

effluent limitations EPA is to impose to meet or

implement the water quality standards. Such a

requirement is consistent with how the Act expects

permitholders to comply with applicable provisions of

section 301. See 33 U.S.C. §§ 1311(a), 1342(a)(1),

1319, 1365(f); cf. United States v. Atl. Rsch. Corp., 551

U.S. 128, 136 (2007) (rejecting interpretation that

would “destroy the symmetry” and “render [the

statute] internally confusing”).

II. Pre- and post-enactment context confirms

that NPDES permits cannot condition

compliance on receiving water quality.

The CWA’s pre- and post-enactment context

confirms what the Act’s text makes clear: EPA may not

impose permit terms such as the Generic Prohibitions

that condition a permitholder’s compliance on receiving

water conditions. EPA seeks to revive—nearly word

for word—the prior regulatory scheme Congress

expressly chose to abandon when enacting the CWA.

And as EPA itself has recognized in its regulations,

section 301(b)(1)(C) allows the agency to impose only

effluent limitations, not restrictions based on the

quality of receiving waters.

A. Receiving water prohibitions resuscitate

the ineffective approach to environmental

protection Congress rejected in passing

the CWA.

Interpreting section 301(b)(1)(C) as allowing EPA

to impose only effluent limitations—not receiving

water prohibitions—ensures that the agency cannot

revive the regulatory approach that Congress discarded

in 1972 precisely because it “proved ineffective.”

California, 426 U.S. at 202. Were its text and structure

not already conclusive, the Act’s legislative history

removes any doubt that Congress never expected

NPDES permits to measure permitholders’ compliance

based on the overall quality of receiving waters. Instead,

members of Congress drafted section 301(b)(1)(C)

specifically so “that each point source shall be required

to meet effluent limitations.” 29

Congress understood that the effluent limitations

required by section 301(b)(1)(C) would require EPA to

restrict the content of permitholders’ discharges, not

make permitholders directly responsible for receiving

29 S. Comm. on Public Works, 93d Cong., 1 Legislative

History of the Water Pollution Control Act Amendments of 1972

(1 Legis. History), Serial No. 93-1, at 246 (1973) (statement of

floor manager Rep. Harsha concerning section 301(b)(1)(C)

during House consideration of the Conference Report) (emphasis

added); see also id. at 209 (CWA would require permitholders to

meet “effluent limitations sufficiently stringent” to meet water

quality standards (statement of Sen. Tunney during consideration

of the Conference Report) (emphasis added)).

water quality. The House Committee on Public Works

explained section 301(b)(1)(C) as follows in its Report:

[A]ll point sources could be required to

meet a more stringent effluent limitation

consistent with water quality standards of

the receiving waters if the effluent limitations set pursuant to subsection (b)(1)(A)

and subsection (b)(1)(B) of section 301 are

inadequate to meet those water quality

standards. In this case a more stringent

effluent limitation will be imposed.

H. Rep. No. 92-911 (Mar. 3, 1972), at 105 (emphases

added). Such an effluent limitation, the Report

continued, “will be set on the basis of that reduction

in the quantity and quality of the discharge of

pollutants” that is necessary to meet water quality

standards. Id. at 105–06 (emphasis added). 30 The

provision’s drafters understood section 301(b)(1)(C)

precisely as an ordinary reader of English does: to

require EPA to set restrictions on the content of point

sources’ discharges rather than the condition of the

receiving waters.

Congress imposed such a duty on EPA to restrict

pollutants at the point source to “prevent water quality

from falling below acceptable levels.” California, 426

U.S. at 205 n. 12 (emphasis added); see also Nat. Res.

Def. Council v. EPA, 808 F.3d 556, 579 (2d Cir. 2015)

(“The point of a permit is to prevent discharges that

30 The Committee’s Senate counterparts similarly understood

that effluent limitations would set “specific requirements . . . as

to the quantities, rates, and concentration of . . . constituents

discharged from point sources”—without reference to the receiving

water conditions. S. Rep. No. 92-414 (Oct. 28, 1971), at 77

(emphasis added).

violate

water

quality

standards before they

happen.” (emphasis in original)). When it properly

implements the Act, EPA need not wait for water

quality to be harmed—as under the CWA’s predecessor—before it can bring an enforcement action

against a discharger. See NPDES Manual at p. 6-11

(effluent limitations “allow[] for controlling individual

parameters [in a permitholder’s discharge] . . . before

a water quality impact has occurred” (emphasis

added)).

By contrast, reading the Act to authorize EPA to

impose the Generic Prohibitions would give the

agency license to recreate almost word-for-word the

“causing or contributing” regime that Congress

discarded in 1972. 33 U.S.C. § 1160(c)(5) (1970). By

allowing enforcement only after adverse effects occur,

receiving water prohibitions like the Generic Prohibitions inherently fail to keep pollution out of navigable

waters by again requiring regulators to “work backward” from an already-impaired waterbody to bring

enforcement actions. California, 426 U.S. at 204.

Section 301(b)(1)(C) cannot be interpreted to resuscitate this ineffective method of regulation that

Congress cast off. See Stone v. INS, 514 U.S. 386, 397

(1995) (“When Congress acts to amend a statute, we

presume it intends its amendment to have real and

substantial effect.”).

B. EPA developed a regulatory regime

premised on an interpretation of section

301(b)(1)(C)

that

aligns

with

San

Francisco’s.

EPA’s own regulations and guidance provide further

confirmation that section 301(b)(1)(C) allows EPA to

impose only effluent limitations, not restrictions that

condition permitholders’ compliance on the quality of

receiving waters. See Loper Bright, 144 S. Ct. at 2257–

58 (“due respect” for agency interpretations is “especially

warranted when an Executive Branch interpretation

was issued roughly contemporaneously with enactment

of the statute and remained consistent over time”).

Although EPA permit writers have imposed the Generic

Prohibitions and other receiving water prohibitions in

specific NPDES permits, the agency’s formal policies

memorialized in guidance and rulemakings have long

interpreted section 301(b)(1)(C) in the same way the

City does: to require EPA to set effluent limitations

restricting the content of permitholders’ discharges.

Moreover, EPA’s development of rules implementing

section 301(b)(1)(C) illustrate that the agency has all

the necessary regulatory tools at its disposal to protect

water quality and need not resort to the Generic

Prohibitions or similar provisions that impose liability

for causing or contributing to adverse receiving water

conditions. 31

Outside of this litigation, 32 EPA has long read

section 301(b)(1)(C) to require the agency to ensure

water quality standards are met by imposing “effluent

31 Indeed, in the City’s Oceanside Permit, EPA also imposed

a variety of specific narrative and numeric effluent limitations.

See supra at 15.

limitations” on discharges from point sources. In

1973, EPA issued a guide on the NPDES program

explaining how, in circumstances where technologybased controls are insufficient to protect water quality,

“more stringent effluent limitations are to be

imposed.” EPA, The National Water Permit Program

at 12 (emphasis added). 33 Such effluent limitations,

EPA explained, “are placed on the amount of

pollutants in discharged wastewater or on the volume

of wastewater discharged.” Id. at 7 (emphasis added).

EPA thus understood within months of the Act’s

passage that section 301(b)(1)(C) required the agency

to restrict the content of discharges at the point source.

This interpretation, “issued contemporaneously with

the statute at issue,” is “especially useful in

determining” the limits of EPA’s authority. Loper

Bright, 144 S. Ct. at 2262.

EPA developed a comprehensive regulatory regime

designed to execute on this long-held understanding

that “Section 301(b)(1)(C) . . . requires that water

quality standards be achieved through effluent

limitations.” 54 Fed. Reg. at 23,872 (emphasis added);

id. at 23,875 (“section 301(b)(1)(C) requires NPDES

In opposing certiorari, EPA argued that the term

“limitation” in section 301(b)(1)(C) referred to something other

than an effluent limitation. See EPA BIO 12.

33 This document is representative of multiple instances in

which EPA, shortly after the Act was passed, interpreted section

301(b)(1)(C) to require the agency to set effluent limitations. See

also supra note 13 and accompanying text; Decisions of the EPA

Administrator & Decisions of the General Counsel Vol. 1 at 373–

74 (concluding that section 301(b)(1)(C) required EPA “to establish effluent limitations to meet the more stringent state water

quality standards” (Oct. 14, 1975 decision of EPA’s General

Counsel)).

permits to contain any effluent limitations necessary

to meet all applicable water quality standards”

(emphasis added)). The relevant regulation, codified

at 40 C.F.R. § 122.44(d)(1), prescribes “procedures

for . . . identify[ing] those permits that must have

water quality-based effluent limits, and describe[s]

several principles for developing [them].” 54 Fed. Reg.

at 23,872. That regulation mandates the imposition

of effluent limitations to “control all pollutants or

pollutant parameters” that “are or may be discharged

at a level which will cause, have the reasonable

potential to cause, or contribute to an excursion above

any State water quality standard.” 40 C.F.R. § 122.44

(d)(1)(i).

EPA’s regulation does not allow permit writers

simply to require that permitholders not “cause or

contribute” to water pollution. The rule instead requires

permit writers to set effluent limitations “on point

sources” that must be “derived from” the relevant

water

quality

standards.

C.F.R.

§ 122.44(d)(1)(vii)(A) (emphasis added). Even by its

own rule, EPA must translate the relevant water

quality standard into a restriction on the contents of

a permitholder’s discharges that applies at the point

source.

EPA’s guidance likewise anticipates that an NPDES

permit restricts, at the point source, a permitholder’s

discharges to protect water quality. In the agency’s

34 Although these effluent limitations restrict discharges at

the point source, EPA’s regulations appropriately do not require

that they must always set numeric restrictions on pollutant

levels discharged. Permits may require best management practices

when “[n]umeric effluent limitations are infeasible.” 40 C.F.R.

§ 122.44(k)(3).

manual for drafting NPDES permits, EPA notes that

“CWA section 301(b)(1)(C) requires that permits include

any effluent limitations necessary to meet water

quality standards.”

NPDES Manual at p. 6-1

(emphasis added). That manual instructs permit

writers how to “model effluent and receiving water

interactions,” id. at p. 6-16, “determine[ ] whether

WQBELs [water quality-based effluent limitations]

are needed,” id. at p. 6-22, and “develop WQBELs for

[relevant] pollutant parameter[s],” id. at p. 6-31. The

effluent limitations that the manual instructs EPA to

impose must specify a particular “concentration of the

pollutant [at issue] in the effluent” that a permitholder

must achieve. Id. at p. 6-32; see also EPA, Technical

Support Document for Water Quality-Based Toxics

Control 95 (Mar. 1991) (effluent limitations must

prescribe a specific level of “acceptable effluent quality”).

The agency’s regulations and guidance at no point

suggest that NPDES permits can or should include

prohibitions that condition a permitholder’s compliance

on the quality of receiving waters. Instead, the

imposition of receiving water prohibitions like the

Generic Prohibitions has been an off-menu practice

that conflicts with EPA’s proper interpretations of the

statute. Reversing the Ninth Circuit’s decision will do

nothing more than require EPA to use the specific

tools that it has already developed—and the CWA

requires—to ensure navigable waters meet water

quality standards.

III. The City’s straightforward interpretation

of the CWA allows the Act’s enforcement

scheme to function fairly and as designed.

Reading section 301(b)(1)(C) consistent with EPA’s

longstanding interpretations and regulations ensures

that permitholders face the Act’s onerous enforcement

machinery only when their discharges exceed

benchmarks defined in their permits. The Act’s “permit

shield” and enforcement provisions work as Congress

intended only when the pollutant control requirements that permitholders must meet are defined ex

ante through effluent limitations at their point sources.

By contrast, permit conditions that tie permitholders’

obligations to the receiving water conditions they

must avoid inherently deprive them of advance notice

of their obligations, as evidenced by a lawsuit EPA

recently brought against the City.

A. Receiving water prohibitions undermine

the CWA’s permit shield by depriving

permitholders of regulatory certainty.

Reading section 301(b)(1)(C) to require that EPA

restrict the content of permitholders’ discharges at the

point source ensures that the CWA’s “permit shield,”

33 U.S.C. 1342(k), “serves the purpose of giving permits

finality.” E.I. du Pont de Nemours & Co. v. Train, 430

U.S. 112, 138 n.28 (1977). Under the permit shield,

“[c]ompliance with [an NPDES permit] shall be deemed

compliance, for purposes of sections 1319 and 1365 of

this title,” with various substantive provisions of the

Act. 33 U.S.C. § 1342(k). An NPDES permit “shield[s]

its holder from CWA liability” so long as the

permitholder complies with the permit’s terms. Piney

Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., 268

F.3d 255, 266 (4th Cir. 2001); see also Nat. Res. Def.

Council, Inc. v. Cnty. of Los Angeles, 725 F.3d 1194,

1204 (9th Cir. 2013) (“Where a permittee discharges

pollutants in compliance with the terms of its NPDES

permit, the permit acts to ‘shield’ the permittee from

liability under the CWA.” (citation omitted)).

The permit shield thus assures permitholders that

they will not face the Act’s “crushing consequences”

unless they violate the requirements found within the

four corners of their permits. Sackett, 598 U.S. at 660

(cleaned up). Even unintentional violations of the Act

can lead to criminal punishments. See 33 U.S.C.

§ 1319(c)(1)(A). In civil enforcement actions, EPA can

bring lawsuits seeking civil penalties of over $66,000

per day for each permit violation, as well as injunctive

relief. Id. § 1319(b), (d); 40 C.F.R. § 19.4. For

municipalities like San Francisco, the cost of

injunctive relief in CWA enforcement cases can often

run into the hundreds of millions or even billions of

dollars. 35 Private plaintiffs may also bring lawsuits

seeking the same civil penalties and injunctive relief.

See 33 U.S.C. § 1365(a).

The Act’s severe penalties are warranted only

alongside “some measure of predictability,” 36 which is

why “Congress intended to establish clear and identifiable discharge standards” in permits that “provide

manageable

and

precise

benchmarks

for

performance.” Int’l Paper Co. v. Ouellette, 479 U.S.

481, 496 n.16 (1987) (cleaned up). Indeed, as EPA has

acknowledged, the permit shield, when properly

applied, allows a “facility [to] plan and operate with

knowledge of what rules apply.” 45 Fed. Reg. 33,290,

33,312 (May 19, 1980). Only when the Act’s enforcement provisions are balanced alongside the Act’s

permit shield can San Francisco and other

35 See EPA, EPA National Enforcement Initiative: Keeping

Raw Sewage and Contaminated Stormwater Out of Our Nation’s

Waters – Status of Civil Judicial Consent Decrees Addressing

Combined Sewer Systems (May 1, 2017), https://perma.cc/U7JU477C (estimating municipalities’ combined sewer compliance

costs under CWA consent decrees).

36 U.S. Army Corps of Eng’rs v. Hawkes, 578 U.S. 590, 602

(2016) (Kennedy, J., concurring).

permitholders “know what is required of them so they

may act accordingly,” as is consistent with basic

notions of due process. FCC v. Fox Television Stations,

Inc., 567 U.S. 239, 253 (2012).

When EPA complies with its statutory obligation

under section 301(b)(1)(C) to set effluent limitations

that restrict the quantities, rates, and concentrations

of discharges at the point source, permitholders can

know from the face of their permits what they must

do to comply. Permitholders need only look at the terms

of their permits, their activities, and effluent quality

to know whether they comply with their permits.

By contrast, when EPA conditions a permitholder’s

compliance on the quality of receiving waters, it is

impossible to know precisely “what rules apply.” 45

Fed. Reg. at 33,312. Contributions to a receiving

water from multiple sources prevent an individual

permitholder from knowing ex ante how much they

need to control their discharges to prevent a violation.

Such sources can include nonpoint source pollution

like runoff “not traceable to any single discrete

source.” League of Wilderness Defs., 309 F.3d at 1184.

Tens of thousands of “water bodies nationwide are

impaired [i.e., do not meet water quality standards]

primarily by such pollution,” Gov’t Accountability

Office, Nonpoint Source Pollution 1 (May 2012),

https://perma.cc/MQ6G-GLZB, and “[n]onpoint source

pollution of this kind is the largest source of water

pollution in the United States.” League of Wilderness

Defs., 309 F.3d at 1184 (citing EPA guidance). Other

factors, like seasonal variation in stream conditions,

can also affect whether a waterbody meets water

quality standards. 37

When restrictions on the quality of receiving

waters are included in a permit, a permitholder will

know only retrospectively whether their discharge—

in combination with those variables—resulted in

conditions that violate a water quality standard.

Under such permit terms, permitholders can no

longer ascertain from their permits how they must

control their discharges to avoid facing the risk of

enforcement actions. Permitholders can only be

certain they are not violating their permits by ceasing

to discharge altogether. See Pet. App. 65–66 (Collins,

J., dissenting) (“[I]n the event of excessive pollution

from another source, the immediate cessation of discharges involving the same pollutant from all other

sources [would be required], without regard to the

importance of those sources’ operations.” (emphasis in

original)); see also Arkansas, 503 U.S. at 108 (CWA

has never been construed to “mandate[ ] a complete

ban on discharges into a waterway that is [already] in

violation of [water quality] standards.”). Of course,

ceasing operations altogether is not an option for San

Francisco and permitholders around the Nation who

provide vital sanitary services, further illustrating the

untenable nature of EPA’s interpretation of the Act.

B. Enforcement actions demonstrate the

unfairness of prohibiting permitholders

from violating water quality standards.

Recent litigation confirms how permit terms like

the Generic Prohibitions make the Act’s enforcement

provisions and permit shield malfunction, illustrating

37 Gaba, supra note 14, at 441.

why Congress directed EPA specifically to set effluent

limitations. When NPDES permits include terms that

condition compliance on the quality of receiving waters

rather than permitholders’ discharges, permits lack

the finality the permit shield is supposed to provide,

and permitholders effectively risk liability for

discharging in excess of benchmarks not found in

their permits.

Defendants alleged to have violated receiving

water prohibitions like the Generic Prohibitions have

found themselves unable to assert permit shield

defenses based on their compliance with the specific

terms in their permits. 38 Instead, defendants have

had to proceed through judicial fact finding to

determine after the fact whether—and to what

extent—they should have further controlled their discharges to comply.

For example, in MWRD, the district court ruled

that it would need to hold a trial to determine “how

much phosphorus”—considering other sources’

38 See Ohio Valley Env’t Coal. v. Fola Coal Co. (Fola), 845

F.3d 133, 142–43 (4th Cir. 2017); Nat. Res. Def. Council v. Metro.

Water Reclamation Dist. of Greater Chicago (MWRD), 175 F.

Supp. 3d 1041, 1049–54 (N.D. Ill. 2016); Cnty. of Los Angeles,

725 F.3d at 1204–06 (defendants lacked a Permit Shield defense

based on alleged violations of a prohibition against

“discharges . . . that cause or contribute to a violation of water

quality standards”); Nw. Env’t Advocs. v. City of Medford, No.

1:18-cv-00856-CL, 2021 WL 2673126, at *5 (D. Or. June 9, 2021)

(allegation of violating a receiving water quality prohibition

negated ability to rely on Oregon regulation substantially

codifying the permit shield); see also Swartz v. Beach, 229 F.

Supp. 2d 1239, 1271 (D. Wyo. 2002) (permitholders are not

shielded from allegations of noncompliance with water quality

standards “when [such] standards are incorporated into a[n]

NPDES permit” by a receiving water prohibition).

contributions—the

permitholder

could

have

discharged without contributing to a violation of a

water quality standard. 175 F. Supp. 3d at 1062.

Similarly, the permitholder sued in Fola learned that

the level of ions in its discharges was “materially

contributing” to stream characteristics that violated

water quality standards only after a bench trial that

required “mountains of expert testimony, reports, and

charts.” 845 F.3d at 137–38; see also Petition for Writ

of Certiorari 31 n.17 (collecting similar cases). In

these cases, permitholders found that they could not

look to their permits to know in advance whether they

were discharging “too much” to comply. This critical

issue was instead adjudicated ex post, confirming that

conditioning permitholders’ compliance on whether

receiving waters meet water quality standards

nullifies the permit shield.

San Francisco itself now faces an enforcement

action that demonstrates how permit conditions like

the Generic Prohibitions require ex post adjudication

of permitholders’ discharge control obligations and

undermine the permit shield. On May 1, 2024, EPA

filed a lawsuit alleging that combined sewer overflows

from the City’s Bayside Facilities violate a provision

in those facilities’ NPDES permit that—like the

Generic Prohibitions—prohibits the City from

“causing a violation of any applicable water quality

standard for receiving waters.” EPA Complaint ¶ 100.

EPA’s complaint alleges that San Francisco has been

violating its permit since 2013 by causing receiving

waters to exceed applicable water quality standards.

Even after being sued, however, San Francisco does

not know the quantities, rates, and concentrations of

pollutants that are excessive in EPA’s view, or what

management practices EPA believes San Francisco

should have implemented to control its discharges and

avert a lawsuit. See id. ¶¶ 110–13. The agency seeks

daily civil penalties over the period of more than a

decade, as well as injunctive relief, while leaving San

Francisco in the dark about what it allegedly did

wrong. Id. ¶¶ 119–20, Prayer for Relief ¶¶ a–c.

And it is not just EPA that has sought to enforce

this receiving water quality prohibition in the Bayside

Facilities’ permit. Shortly after EPA filed suit, San

Francisco Baykeeper intervened, alleging that the

Bayside Facilities violate this same permit provision

by discharging unspecified but “elevated levels of

bacteria and other pollutants [that] adversely affect

the beneficial uses” of San Francisco Bay. 39 Baykeeper

claims that these violations occur “each time” San

Francisco experiences a rain event severe enough to

cause combined sewer overflows. Baykeeper Complaint

¶ 142. As with EPA’s complaint, San Francisco remains

unaware of the quantities, rates, and concentrations

of pollutants that Baykeeper deems excessive.

Like the permit terms they seek to enforce, Baykeeper and EPA’s allegations provide the City no

guidance on what—short of shutting down a sewer

system serving a major American city—it must do to

avoid the risk of liability. Consequently, the City

could spend billions more than it has already invested

in its combined sewer and stormwater system and still

not know whether it will face enforcement actions for

allegedly “violating” unspecified, unknown, and unknowable “requirements” based on receiving water

39 Complaint in Intervention ¶ 140, United States v. City &

Cnty. of San Francisco, No. 3:24-cv-02594 (N.D. Cal. May 31,

2024) (ECF No. 24) (Baykeeper Complaint), available at

https://perma.cc/L9LC-EM2S.

conditions that San Francisco cannot solely control.

See supra at 13–14.

Particularly for municipalities that build large

infrastructure projects like the Oceanside Facilities, it

is critical that they have clear notice of what their

permits require to ensure public expenditures are

appropriately invested. The permit shield is designed

to ensure that permitholders can look within the four

corners of their permits to ascertain the pollution

control benchmarks they must meet, so that they can

design and build infrastructure projects with

confidence that these capital investments will result

in compliance. By imposing the Generic Prohibitions,

EPA has left San Francisco in an impossible situation

—the City has invested billions in capital

improvements without knowing whether those

improvements will satisfy EPA, given the agency

seeks to impose obligations that depend on everchanging conditions in the receiving water.

Neither San Francisco nor any other permitholders

would face such a predicament if EPA obeyed section

301(b)(1)(C)’s command to set effluent limitations

instead of imposing prohibitions on causing or

contributing to undesirable receiving water quality.

Only that interpretation effectuates the permit shield’s

guarantee that an NPDES permit provides the final

word on a permitholder’s compliance obligations.

Effluent limitations define permitholders’ duties at

the point of discharge and clearly specify what

permitholders must do ex ante to control their

discharges.

Setting effluent limitations—rather

than receiving water prohibitions—also best protects

the environment by ensuring that EPA need not wait

until a waterbody has become “overpolluted” to bring

an enforcement action. California, 426 U.S. at 204.

CONCLUSION

The Court should reverse the judgment of the court

of appeals.

Respectfully submitted.

CITY AND COUNTY OF

SAN FRANCISCO

DAVID CHIU

San Francisco City Attorney

YVONNE R. MERÉ

Chief Deputy City Attorney

TARA M. STEELEY

Chief of Appellate Litigation

Counsel of Record

DAVID S. LOUK

JOHN S. RODDY

ESTIE M. KUS

Deputy City Attorneys

1 Dr. Carlton B. Goodlett Pl.

San Francisco, CA 94102

(415) 554-4655

tara.steeley@sfcityatty.org

July 19, 2024

BEVERIDGE & DIAMOND, P.C.

ANDREW C. SILTON

JOHN C. CRUDEN

RICHARD S. DAVIS

1900 N Street N.W., Suite100

Washington, DC 20036

(202) 789-6000

asilton@bdlaw.com

MACKENZIE S. SCHOONMAKER

825 3rd Avenue, 16th Floor

New York, NY 10022

Counsel for Petitioner

City and County of

San Francisco

Statutory and Regulatory Appendix

TABLE OF CONTENTS

33 U.S.C. § 1311 ........................................................ 1a

33 U.S.C. § 1319 ...................................................... 30a

33 U.S.C. § 1342(a), (k), (o) ..................................... 50a

33 U.S.C. § 1362(11), (12), (16) ............................... 56a

33 U.S.C. § 1365(a)(1), (f) ....................................... 57a

40 C.F.R. § 122.44(d)(1) .......................................... 59a

33 U.S.C. § 1311

§ 1311. Effluent limitations

(a) Illegality of pollutant discharges except in

compliance with law

Except as in compliance with this section and

sections 1312, 1316, 1317, 1328, 1342, and 1344 of this

title, the discharge of any pollutant by any person

shall be unlawful.

(b) Timetable for achievement of objectives

In order to carry out the objective of this chapter

there shall be achieved—

(1)(A) not later than July 1, 1977, effluent limitations for point sources, other than publicly owned

treatment works, (i) which shall require the application of the best practicable control technology

currently available as defined by the Administrator

pursuant to section 1314(b) of this title, or (ii) in

the case of a discharge into a publicly owned

treatment works which meets the requirements

of subparagraph (B) of this paragraph, which

shall require compliance with any applicable

pretreatment requirements and any requirements

under section 1317 of this title; and

(B) for publicly owned treatment works in existence on July 1, 1977, or approved pursuant to

section 1283 of this title prior to June 30, 1974

(for which construction must be completed within

four years of approval), effluent limitations based

upon secondary treatment as defined by the

Administrator pursuant to section 1314(d)(1) of

this title; or,

stringent limitation, including those necessary to

meet water quality standards, treatment standards, or schedules of compliance, established

pursuant to any State law or regulations (under

authority preserved by section 1370 of this title)

or any other Federal law or regulation, or required

to implement any applicable water quality standard established pursuant to this chapter.

(2)(A) for pollutants identified in subparagraphs (C), (D), and (F) of this paragraph, effluent limitations for categories and classes of point

sources, other than publicly owned treatment

works, which (i) shall require application of the

best available technology economically achievable

for such category or class, which will result in reasonable further progress toward the national goal

of eliminating the discharge of all pollutants, as

determined in accordance with regulations issued

by the Administrator pursuant to section 1314(b)

(2) of this title, which such effluent limitations

shall require the elimination of discharges of all

pollutants if the Administrator finds, on the basis

of information available to him (including information developed pursuant to section 1325 of this

title), that such elimination is technologically and

economically achievable for a category or class of

point sources as determined in accordance with

regulations issued by the Administrator pursuant to section 1314(b)(2) of this title, or (ii) in the

case of the introduction of a pollutant into a

publicly owned treatment works which meets the

requirements of subparagraph (B) of this paragraph, shall require compliance with any applicable

pretreatment requirements and any other requirement under section 1317 of this title;

(B) Repealed. Pub. L. 97–117, §21(b), Dec. 29,

1981, 95 Stat. 1632.

to in table 1 of Committee Print Numbered 95–30

of the Committee on Public Works and Transportation of the House of Representatives compliance

with effluent limitations in accordance with subparagraph (A) of this paragraph as expeditiously as

practicable but in no case later than three years

after the date such limitations are promulgated

under section 1314(b) of this title, and in no case

later than March 31, 1989;

(D) for all toxic pollutants listed under paragraph (1) of subsection (a) of section 1317 of this

title which are not referred to in subparagraph

limitations in accordance with subparagraph (A)

of this paragraph as expeditiously as practicable,

but in no case later than three years after the

date such limitations are promulgated under

section 1314(b) of this title, and in no case later

than March 31, 1989;

(E) as expeditiously as practicable but in no

case later than three years after the date such

limitations are promulgated under section 1314

(b) of this title, and in no case later than March

31, 1989, compliance with effluent limitations for

categories and classes of point sources, other than

publicly owned treatment works, which in the

case of pollutants identified pursuant to section

1314(a)(4) of this title shall require application of

the best conventional pollutant control technology

as determined in accordance with regulations

issued by the Administrator pursuant to section

1314(b)(4) of this title; and

(F) for all pollutants (other than those subject

to subparagraphs (C), (D), or (E) of this paragraph)

compliance with effluent limitations in accordance

with subparagraph (A) of this paragraph as

expeditiously as practicable but in no case later

than 3 years after the date such limitations are

established, and in no case later than March 31,

1989.

(3)(A) for effluent limitations under paragraph

(1)(A)(i) of this subsection promulgated after January 1, 1982, and requiring a level of control substantially greater or based on fundamentally

different control technology than under permits

for an industrial category issued before such date,

compliance as expeditiously as practicable but in

no case later than three years after the date such

limitations are promulgated under section 1314

(b) of this title, and in no case later than March

31, 1989; and

(B) for any effluent limitation in accordance

with paragraph (1)(A)(i), (2)(A)(i), or (2)(E) of this

subsection established only on the basis of section

1342(a)(1) of this title in a permit issued after

February 4, 1987, compliance as expeditiously as

practicable but in no case later than three years

after the date such limitations are established,

and in no case later than March 31, 1989.

The Administrator may modify the requirements of

subsection (b)(2)(A) of this section with respect to any

point source for which a permit application is filed

after July 1, 1977, upon a showing by the owner or

operator of such point source satisfactory to the

Administrator that such modified requirements (1)

will represent the maximum use of technology within

the economic capability of the owner or operator; and

(2) will result in reasonable further progress toward

the elimination of the discharge of pollutants.

(d) Review and revision of effluent limitations

Any effluent limitation required by paragraph (2)

of subsection (b) of this section shall be reviewed at

least every five years and, if appropriate, revised pursuant to the procedure established under such paragraph.

(e) All point discharge source application of

effluent limitations

Effluent limitations established pursuant to this

section or section 1312 of this title shall be applied to

all point sources of discharge of pollutants in accordance

with the provisions of this chapter.

(f) Illegality of discharge of radiological,

chemical, or biological warfare agents, highlevel radioactive waste, or medical waste

Notwithstanding any other provisions of this

chapter it shall be unlawful to discharge any radiological, chemical, or biological warfare agent, any

high-level radioactive waste, or any medical waste,

into the navigable waters.

(g) Modifications for certain nonconventional pollutants

(1) General authority

The Administrator, with the concurrence of the

State, may modify the requirements of subsection (b)

(2)(A) of this section with respect to the discharge

from any point source of ammonia, chlorine, color,

iron, and total phenols (4AAP) (when determined by

the Administrator to be a pollutant covered by subsection (b)(2)(F)) and any other pollutant which the

Administrator lists under paragraph (4) of this subsection.

(2) Requirements for granting modifications

A modification under this subsection shall be

granted only upon a showing by the owner or operator

of a point source satisfactory to the Administrator

that—

(A) such modified requirements will result at a

minimum in compliance with the requirements of

subsection (b)(1)(A) or (C) of this section, whichever

is applicable;

(B) such modified requirements will not result

in any additional requirements on any other

point or nonpoint source; and

attainment or maintenance of that water quality

which shall assure protection of public water

supplies, and the protection and propagation of a

balanced population of shellfish, fish, and wildlife, and allow recreational activities, in and on

the water and such modification will not result in

the discharge of pollutants in quantities which

may reasonably be anticipated to pose an unacceptable risk to human health or the environment because of bioaccumulation, persistency in

the environment, acute toxicity, chronic toxicity

(including carcinogenicity, mutagenicity or teratogenicity), or synergistic propensities.

(3) Limitation on authority to apply for

subsection (c) modification

If an owner or operator of a point source applies

for a modification under this subsection with respect

to the discharge of any pollutant, such owner or operator

shall be eligible to apply for modification under subsection (c) of this section with respect to such pollutant

only during the same time period as he is eligible to

apply for a modification under this subsection.

(4) Procedures

pollutants

for

listing

additional

(A) General authority

Upon petition of any person, the Administrator may add any pollutant to the list of pollutants for which modification under this section

is authorized (except for pollutants identified

pursuant to section 1314(a)(4) of this title, toxic

pollutants subject to section 1317(a) of this

title, and the thermal component of discharges)

in accordance with the provisions of this paragraph.

(B) Requirements for listing

(i) Sufficient information

The person petitioning for listing of an

additional pollutant under this subsection

shall submit to the Administrator sufficient

information to make the determinations

required by this subparagraph.

(ii) Toxic criteria determination

The Administrator shall determine whether or not the pollutant meets the criteria

for listing as a toxic pollutant under section

1317(a) of this title.

(iii) Listing as toxic pollutant

If the Administrator determines that the

pollutant meets the criteria for listing as a

toxic pollutant under section 1317(a) of this

title, the Administrator shall list the pollutant

as a toxic pollutant under section 1317(a) of

this title.

(iv) Nonconventional criteria determination

If the Administrator determines that the

pollutant does not meet the criteria for listing

as a toxic pollutant under such section and

determines that adequate test methods and

sufficient data are available to make the determinations required by paragraph (2) of

this subsection with respect to the pollutant,

the Administrator shall add the pollutant to

the list of pollutants specified in paragraph

(1) of this subsection for which modifications

are authorized under this subsection.

A petition for listing of a pollutant under

this paragraph—

(i) must be filed not later than 270 days

after the date of promulgation of an applicable

effluent guideline under section 1314 of this

title;

(ii) may be filed before promulgation of

such guideline; and

(iii) may be filed with an application for a

modification under paragraph (1) with

respect to the discharge of such pollutant.

(D) Deadline for approval of petition

A decision to add a pollutant to the list of

pollutants for which modifications under this

subsection are authorized must be made within

270 days after the date of promulgation of an

applicable effluent guideline under section

1314 of this title.

(E) Burden of proof

The burden of proof for making the determinations under subparagraph (B) shall be on

the petitioner.

(5) Removal of pollutants

The Administrator may remove any pollutant

from the list of pollutants for which modifications are

authorized under this subsection if the Administrator

10a

determines that adequate test methods and sufficient

data are no longer available for determining whether

or not modifications may be granted with respect to

such pollutant under paragraph (2) of this subsection.

(h) Modification of

requirements

secondary

treatment

The Administrator, with the concurrence of the

State, may issue a permit under section 1342 of this

title which modifies the requirements of subsection (b)

(1)(B) of this section with respect to the discharge of

any pollutant from a publicly owned treatment works

into marine waters, if the applicant demonstrates to

the satisfaction of the Administrator that—

(1) there is an applicable water quality standard specific to the pollutant for which the modification is requested, which has been identified

under section 1314(a)(6) of this title;

(2) the discharge of pollutants in accordance

with such modified requirements will not interfere,

alone or in combination with pollutants from other

sources, with the attainment or maintenance of

that water quality which assures protection of

public water supplies and the protection and propagation of a balanced, indigenous population of

shellfish, fish, and wildlife, and allows recreational activities, in and on the water;

(3) the applicant has established a system for

monitoring the impact of such discharge on a

representative sample of aquatic biota, to the

extent practicable, and the scope of such monitoring

is limited to include only those scientific investi-

11a

gations which are necessary to study the effects

of the proposed discharge;

(4) such modified requirements will not result

in any additional requirements on any other

point or nonpoint source;

(5) all applicable pretreatment requirements

for sources introducing waste into such treatment

works will be enforced;

(6) in the case of any treatment works serving

a population of 50,000 or more, with respect to

any toxic pollutant introduced into such works by

an industrial discharger for which pollutant

there is no applicable pretreatment requirement

in effect, sources introducing waste into such works

are in compliance with all applicable pretreatment requirements, the applicant will enforce

such requirements, and the applicant has in

effect a pretreatment program which, in combination with the treatment of discharges from such

works, removes the same amount of such pollutant

as would be removed if such works were to apply

secondary treatment to discharges and if such

works had no pretreatment program with respect

to such pollutant;

(7) to the extent practicable, the applicant has

established a schedule of activities designed to

eliminate the entrance of toxic pollutants from

nonindustrial sources into such treatment works;

(8) there will be no new or substantially

increased discharges from the point source of the

pollutant to which the modification applies above

that volume of discharge specified in the permit;

12a

(9) the applicant at the time such modification

becomes effective will be discharging effluent

which has received at least primary or equivalent

treatment and which meets the criteria established under section 1314(a)(1) of this title after

initial mixing in the waters surrounding or

adjacent to the point at which such effluent is

discharged.

For the purposes of this subsection the phrase “the

discharge of any pollutant into marine waters” refers

to a discharge into deep waters of the territorial sea

or the waters of the contiguous zone, or into saline

estuarine waters where there is strong tidal movement and other hydrological and geological characteristics which the Administrator determines necessary to allow compliance with paragraph (2) of this

subsection, and section 1251(a)(2) of this title. For the

purposes of paragraph (9), “primary or equivalent

treatment” means treatment by screening, sedimentation, and skimming adequate to remove at least 30

percent of the biological oxygen demanding material

and of the suspended solids in the treatment works

influent, and disinfection, where appropriate. A municipality which applies secondary treatment shall be

eligible to receive a permit pursuant to this subsection

which modifies the requirements of subsection (b)(1)

(B) of this section with respect to the discharge of any

pollutant from any treatment works owned by such

municipality into marine waters. No permit issued

under this subsection shall authorize the discharge of

sewage sludge into marine waters. In order for a

permit to be issued under this subsection for the

discharge of a pollutant into marine waters, such marine

waters must exhibit characteristics assuring that

13a

water providing dilution does not contain significant

amounts of previously discharged effluent from such

treatment works. No permit issued under this subsection shall authorize the discharge of any pollutant

into saline estuarine waters which at the time of

application do not support a balanced indigenous population of shellfish, fish and wildlife, or allow recreation

in and on the waters or which exhibit ambient water

quality below applicable water quality standards

adopted for the protection of public water supplies,

shellfish, fish and wildlife or recreational activities or

such other standards necessary to assure support and

protection of such uses. The prohibition contained in

the preceding sentence shall apply without regard to

the presence or absence of a causal relationship

between such characteristics and the applicant’s current

or proposed discharge. Notwithstanding any other

provisions of this subsection, no permit may be issued

under this subsection for discharge of a pollutant into

the New York Bight Apex consisting of the ocean

waters of the Atlantic Ocean westward of 73 degrees

30 minutes west longitude and northward of 40

degrees 10 minutes north latitude.

(i) Municipal time extensions

(1) Where construction is required in order for a

planned or existing publicly owned treatment works

to achieve limitations under subsection (b)(1)(B) or (b)

(1)(C) of this section, but (A) construction cannot be

completed within the time required in such subsection,

or (B) the United States has failed to make financial

assistance under this chapter available in time to

achieve such limitations by the time specified in such

subsection, the owner or operator of such treatment

works may request the Administrator (or if appropri-

14a

ate the State) to issue a permit pursuant to section

1342 of this title or to modify a permit issued pursuant

to that section to extend such time for compliance.

Any such request shall be filed with the Administrator

(or if appropriate the State) within 180 days after February 4, 1987. The Administrator (or if appropriate

the State) may grant such request and issue or modify

such a permit, which shall contain a schedule of compliance for the publicly owned treatment works based

on the earliest date by which such financial assistance

will be available from the United States and construction can be completed, but in no event later than July

1, 1988, and shall contain such other terms and conditions, including those necessary to carry out subsections (b) through (g) of section 1281 of this title,

section 1317 of this title, and such interim effluent

limitations applicable to that treatment works as the

Administrator determines are necessary to carry out

the provisions of this chapter.

(2)(A) Where a point source (other than a publicly

owned treatment works) will not achieve the requirements of subsections (b)(1)(A) and (b)(1)(C) of this

section and—

(i) if a permit issued prior to July 1, 1977, to

such point source is based upon a discharge into

a publicly owned treatment works; or

(ii) if such point source (other than a publicly

owned treatment works) had before July 1, 1977,

a contract (enforceable against such point source)

to discharge into a publicly owned treatment

works; or

(iii) if either an application made before July 1,

1977, for a construction grant under this chapter

15a

for a publicly owned treatment works, or engineering or architectural plans or working drawings

made before July 1, 1977, for a publicly owned

treatment works, show that such point source

was to discharge into such publicly owned treatment works,

and such publicly owned treatment works is presently

unable to accept such discharge without construction,

and in the case of a discharge to an existing publicly

owned treatment works, such treatment works has an

extension pursuant to paragraph (1) of this subsection, the owner or operator of such point source

may request the Administrator (or if appropriate the

State) to issue or modify such a permit pursuant to

such section 1342 of this title to extend such time for

compliance. Any such request shall be filed with the

Administrator (or if appropriate the State) within 180

days after December 27, 1977, or the filing of a request

by the appropriate publicly owned treatment works

under paragraph (1) of this subsection, whichever is

later. If the Administrator (or if appropriate the State)

finds that the owner or operator of such point source

has acted in good faith, he may grant such request and

issue or modify such a permit, which shall contain a

schedule of compliance for the point source to achieve

the requirements of subsections (b)(1)(A) and (C) of

this section and shall contain such other terms and

conditions, including pretreatment and interim effluent limitations and water conservation requirements

applicable to that point source, as the Administrator

determines are necessary to carry out the provisions

of this chapter.

(B) No time modification granted by the Administrator (or if appropriate the State) pursuant to para-

16a

graph (2)(A) of this subsection shall extend beyond the

earliest date practicable for compliance or beyond the

date of any extension granted to the appropriate

publicly owned treatment works pursuant to paragraph (1) of this subsection, but in no event shall it

extend beyond July 1, 1988; and no such time modification shall be granted unless (i) the publicly owned

treatment works will be in operation and available to

the point source before July 1, 1988, and will meet the

requirements of subsections (b)(1)(B) and (C) of this

section after receiving the discharge from that point

source; and (ii) the point source and the publicly owned

treatment works have entered into an enforceable

contract requiring the point source to discharge into

the publicly owned treatment works, the owner or

operator of such point source to pay the costs required

under section 1284 of this title, and the publicly

owned treatment works to accept the discharge from

the point source; and (iii) the permit for such point

source requires that point source to meet all requirements under section 1317(a) and (b) of this title during

the period of such time modification.

(j) Modification procedures

(1) Any application filed under this section for a

modification of the provisions of—

(A) subsection (b)(1)(B) under subsection (h) of

this section shall be filed not later that1 the

365th day which begins after December 29, 1981,

except that a publicly owned treatment works

which prior to December 31, 1982, had a contractual

arrangement to use a portion of the capacity of an

1 So in original. Probably should be ‘‘than’’.

17a

ocean outfall operated by another publicly owned

treatment works which has applied for or received

modification under subsection (h), may apply for

a modification of subsection (h) in its own right

not later than 30 days after February 4, 1987, and

except as provided in paragraph (5);

(B) subsection (b)(2)(A) as it applies to pollutants identified in subsection (b)(2)(F) shall be filed

not later than 270 days after the date of promulgation of an applicable effluent guideline under

section 1314 of this title or not later than 270

days after December 27, 1977, whichever is later.

(2) Subject to paragraph (3) of this section, any

application for a modification filed under subsection

(g) of this section shall not operate to stay any requirement under this chapter, unless in the judgment of the

Administrator such a stay or the modification sought

will not result in the discharge of pollutants in

quantities which may reasonably be anticipated to

pose an unacceptable risk to human health or the

environment because of bioaccumulation, persistency in

the environment, acute toxicity, chronic toxicity (including carcinogenicity, mutagenicity, or teratogenicity),

or synergistic propensities, and that there is a substantial likelihood that the applicant will succeed on

the merits of such application. In the case of an application filed under subsection (g) of this section, the

Administrator may condition any stay granted under

this paragraph on requiring the filing of a bond or

other appropriate security to assure timely compliance with the requirements from which a modification

is sought.

(3) COMPLIANCE REQUIREMENTS UNDER

SUBSECTION (g).—

18a

(A) EFFECT OF FILING.—An application for

a modification under subsection (g) and a petition

for listing of a pollutant as a pollutant for which

modifications are authorized under such subsection

shall not stay the requirement that the person

seeking such modification or listing comply with

effluent limitations under this chapter for all

pollutants not the subject of such application or

petition.

(B) EFFECT OF DISAPPROVAL.—Disapproval of an application for a modification under subsection (g) shall not stay the requirement that the

person seeking such modification comply with all

applicable effluent limitations under this chapter.

(4) DEADLINE FOR SUBSECTION (g) DECISION.—An application for a modification with respect

to a pollutant filed under subsection (g) must be

approved or disapproved not later than 365 days after

the date of such filing; except that in any case in which

a petition for listing such pollutant as a pollutant for

which modifications are authorized under such subsection is approved, such application must be

approved or disapproved not later than 365 days after

the date of approval of such petition.

(5) EXTENSION OF APPLICATION DEADLINE.

(A) IN GENERAL.—In the 180-day period

beginning on October 31, 1994, the city of San

Diego, California, may apply for a modification

pursuant to subsection (h) of the requirements of

subsection (b)(1)(B) with respect to biological

oxygen demand and total suspended solids in the

effluent discharged into marine waters.

19a

(B) APPLICATION.—An application under

this paragraph shall include a commitment by

the applicant to implement a waste water reclamation program that, at a minimum, will¬

(i) achieve a system capacity of 45,000,000

gallons of reclaimed waste water per day by

January 1, 2010; and

(ii) result in a reduction in the quantity of

suspended solids discharged by the applicant

into the marine environment during the period of

the modification.

an application submitted under this paragraph

unless the Administrator determines that such

modification will result in removal of not less

than 58 percent of the biological oxygen demand

(on an annual average) and not less than 80

percent of total suspended solids (on a monthly

average) in the discharge to which the application

applies.

(D) PRELIMINARY DECISION DEADLINE.—

The Administrator shall announce a preliminary

decision on an application submitted under this

paragraph not later than 1 year after the date the

application is submitted.

(k) Innovative technology

In the case of any facility subject to a permit

under section 1342 of this title which proposes to

comply with the requirements of subsection (b)(2)(A)

or (b)(2)(E) of this section by replacing existing

production capacity with an innovative production

20a

process which will result in an effluent reduction significantly greater than that required by the limitation

otherwise applicable to such facility and moves

toward the national goal of eliminating the discharge

of all pollutants, or with the installation of an

innovative control technique that has a substantial

likelihood for enabling the facility to comply with the

applicable effluent limitation by achieving a significantly greater effluent reduction than that required

by the applicable effluent limitation and moves toward

the national goal of eliminating the discharge of all

pollutants, or by achieving the required reduction

with an innovative system that has the potential for

significantly lower costs than the systems which have

been determined by the Administrator to be economically achievable, the Administrator (or the State

with an approved program under section 1342 of this

title, in consultation with the Administrator) may

establish a date for compliance under subsection (b)

(2)(A) or (b)(2)(E) of this section no later than two

years after the date for compliance with such effluent

limitation which would otherwise be applicable under

such subsection, if it is also determined that such

innovative system has the potential for industrywide

application.

(l) Toxic pollutants

Other than as provided in subsection (n) of this

section, the Administrator may not modify any requirement of this section as it applies to any specific

pollutant which is on the toxic pollutant list under

section 1317(a)(1) of this title.

21a

(m) Modification

effluent

limitation

requirements for point sources

(1) The Administrator, with the concurrence of

the State, may issue a permit under section 1342 of

this title which modifies the requirements of subsections (b)(1)(A) and (b)(2)(E) of this section, and of

section 1343 of this title, with respect to effluent limitations to the extent such limitations relate to

biochemical oxygen demand and pH from discharges

by an industrial discharger in such State into deep

waters of the territorial seas, if the applicant demonstrates and the Administrator finds that—

(A) the facility for which modification is sought

is covered at the time of the enactment of this

subsection by National Pollutant Discharge

Elimination System permit number CA0005894

or CA0005282;

(B) the energy and environmental costs of

meeting such requirements of subsections (b)(1)

(A) and (b)(2)(E) and section 1343 of this title

exceed by an unreasonable amount the benefits

to be obtained, including the objectives of this

chapter;

monitoring the impact of such discharges on a

representative sample of aquatic biota;

(D) such modified requirements will not result

in any additional requirements on any other

point or nonpoint source;

(E) there will be no new or substantially

increased discharges from the point source of the

22a

pollutant to which the modification applies above

that volume of discharge specified in the permit;

(F) the discharge is into waters where there is

strong tidal movement and other hydrological

and geological characteristics which are necessary to allow compliance with this subsection and

section 1251(a)(2) of this title;

(G) the applicant accepts as a condition to the

permit a contractural2 obligation to use funds in

the amount required (but not less than $250,000

per year for ten years) for research and development of water pollution control technology, including but not limited to closed cycle technology;

(H) the facts and circumstances present a

unique situation which, if relief is granted, will

not establish a precedent or the relaxation of the

requirements of this chapter applicable to similarly

situated discharges; and

(I) no owner or operator of a facility comparable to that of the applicant situated in the

United States has demonstrated that it would be

put at a competitive disadvantage to the applicant (or the parent company or any subsidiary

thereof) as a result of the issuance of a permit

under this subsection.

(2) The effluent limitations established under a

permit issued under paragraph (1) shall be sufficient

to implement the applicable State water quality standards, to assure the protection of public water supplies

and protection and propagation of a balanced, indigenous

2 So in original. Probably should be ‘‘contractual’’.

23a

population of shellfish, fish, fauna, wildlife, and other

aquatic organisms, and to allow recreational activities

in and on the water. In setting such limitations, the

Administrator shall take into account any seasonal

variations and the need for an adequate margin of

safety, considering the lack of essential knowledge

concerning the relationship between effluent limitations and water quality and the lack of essential

knowledge of the effects of discharges on beneficial

uses of the receiving waters.

(3) A permit under this subsection may be issued

for a period not to exceed five years, and such a permit

may be renewed for one additional period not to

exceed five years upon a demonstration by the applicant and a finding by the Administrator at the time of

application for any such renewal that the provisions

of this subsection are met.

(4) The Administrator may terminate a permit

issued under this subsection if the Administrator

determines that there has been a decline in ambient

water quality of the receiving waters during the

period of the permit even if a direct cause and effect

relationship cannot be shown: Provided, That if the

effluent from a source with a permit issued under this

subsection is contributing to a decline in ambient water

quality of the receiving waters, the Administrator shall

terminate such permit.

(n) Fundamentally different factors

(1) General rule

The Administrator, with the concurrence of

the State, may establish an alternative requirement under subsection (b)(2) or section 1317(b) of

24a

this title for a facility that modifies the requirements of national effluent limitation guidelines

or categorical pretreatment standards that would

otherwise be applicable to such facility, if the

owner or operator of such facility demonstrates to

the satisfaction of the Administrator that

(A) the facility is fundamentally different with

respect to the factors (other than cost) specified

in section 1314(b) or 1314(g) of this title and

considered by the Administrator in establishing

such national effluent limitation guidelines or

categorical pretreatment standards;

(B) the application—

(i) is based solely on information and supporting data submitted to the Administrator

during the rulemaking for establishment of

the applicable national effluent limitation

guidelines or categorical pretreatment standard specifically raising the factors that are

fundamentally different for such facility; or

(ii) is based on information and supporting

data referred to in clause (i) and information

and supporting data the applicant did not have

a reasonable opportunity to submit during

such rulemaking;

stringent than justified by the fundamental difference; and

(D) the alternative requirement will not result

in a non-water quality environmental impact

which is markedly more adverse than the impact

considered by the Administrator in establishing

25a

such national effluent limitation guideline or

categorical pretreatment standard.

(2) Time limit for applications

An application for an alternative requirement

which modifies the requirements of an effluent

limitation or pretreatment standard under this

subsection must be submitted to the Administrator within 180 days after the date on which

such limitation or standard is established or

revised, as the case may be.

(3) Time limit for decision

The Administrator shall approve or deny by

final agency action an application submitted

under this subsection within 180 days after the

date such application is filed with the Administrator.

(4) Submission of information

The Administrator may allow an applicant

under this subsection to submit information and

supporting data until the earlier of the date the

application is approved or denied or the last day

that the Administrator has to approve or deny

such application.

(5) Treatment of pending applications

For the purposes of this subsection, an application for an alternative requirement based on

fundamentally different factors which is pending

on February 4, 1987, shall be treated as having

been submitted to the Administrator on the 180th

day following February 4, 1987. The applicant

26a

may amend the application to take into account the

provisions of this subsection.

(6) Effect of submission of application

An application for an alternative requirement

under this subsection shall not stay the applicant’s obligation to comply with the effluent limitation guideline or categorical pretreatment standard which is the subject of the application.

(7) Effect of denial

If an application for an alternative requirement which modifies the requirements of an

effluent limitation or pretreatment standard

under this subsection is denied by the Administrator, the applicant must comply with such limitation or standard as established or revised, as

the case may be.

(8) Reports

By January 1, 1997, and January 1 of every oddnumbered year thereafter, the Administrator

shall submit to the Committee on Environment

and Public Works of the Senate and the Committee on Transportation and Infrastructure of the

House of Representatives a report on the status

of applications for alternative requirements which

modify the requirements of effluent limitations

under section 1311 or 1314 of this title or any

national categorical pretreatment standard under

section 1317(b) of this title filed before, on, or

after February 4, 1987.

27a

(o) Application fees

The Administrator shall prescribe and collect

from each applicant fees reflecting the reasonable

administrative costs incurred in reviewing and processing applications for modifications submitted to

the Administrator pursuant to subsections (c), (g), (i),

(k), (m), and (n) of this section, section 1314(d)(4) of

this title, and section 1326(a) of this title. All amounts

collected by the Administrator under this subsection

shall be deposited into a special fund of the Treasury

entitled “Water Permits and Related Services” which

shall thereafter be available for appropriation to carry

out activities of the Environmental Protection Agency

for which such fees were collected.

(p) Modified permit for coal remining operations

(1) In general

Subject to paragraphs (2) through (4) of this

subsection, the Administrator, or the State in any

case which the State has an approved permit

program under section 1342(b) of this title, may

issue a permit under section 1342 of this title

which modifies the requirements of subsection (b)

(2)(A) of this section with respect to the pH level

of any pre-existing discharge, and with respect to

pre-existing discharges of iron and manganese

from the remined area of any coal remining operation or with respect to the pH level or level of

iron or manganese in any pre-existing discharge

affected by the remining operation. Such modified

requirements shall apply the best available technology economically achievable on a case-by-case

28a

basis, using best professional judgment, to set

specific numerical effluent limitations in each

permit.

(2) Limitations

The Administrator or the State may only issue

a permit pursuant to paragraph (1) if the applicant demonstrates to the satisfaction of the

Administrator or the State, as the case may be,

that the coal remining operation will result in the

potential for improved water quality from the

remining operation but in no event shall such a

permit allow the pH level of any discharge, and

in no event shall such a permit allow the discharges of iron and manganese, to exceed the levels

being discharged from the remined area before

the coal remining operation begins. No discharge

from, or affected by, the remining operation shall

exceed State water quality standards established

under section 1313 of this title.

(3) Definitions

For purposes of this subsection—

(A) Coal remining operation

The term “coal remining operation” means a

coal mining operation which begins after

February 4, 1987 at a site on which coal mining

was conducted before August 3, 1977.

(B) Remined area

The term “remined area” means only that

area of any coal remining operation on which

29a

coal mining was conducted before August 3,

1977.

The term “pre-existing discharge” means any

discharge at the time of permit application

under this subsection.

(4) Applicability of strip mining laws

Nothing in this subsection shall affect the

application of the Surface Mining Control and

Reclamation Act of 1977 [30 U.S.C. 1201 et seq.] to

any coal remining operation, including the application of such Act to suspended solids.

30a

33 U.S.C. § 1319

§ 1319. Enforcement

(a) State enforcement; compliance orders

(1) Whenever, on the basis of any information

available to him, the Administrator finds that any

person is in violation of any condition or limitation

which implements section 1311, 1312, 1316, 1317,

1318, 1328, or 1345 of this title in a permit issued by

a State under an approved permit program under

section 1342 or 1344 of this title he shall proceed

under his authority in paragraph (3) of this subsection

or he shall notify the person in alleged violation and

such State of such finding. If beyond the thirtieth day

after the Administrator’s notification the State has

not commenced appropriate enforcement action, the

Administrator shall issue an order requiring such

person to comply with such condition or limitation or

shall bring a civil action in accordance with subsection

(b) of this section.

(2) Whenever, on the basis of information available to him, the Administrator finds that violations of

permit conditions or limitations as set forth in paragraph (1) of this subsection are so widespread that

such violations appear to result from a failure of the

State to enforce such permit conditions or limitations

effectively, he shall so notify the State. If the Administrator finds such failure extends beyond the

thirtieth day after such notice, he shall give public

notice of such finding. During the period beginning

with such public notice and ending when such State

satisfies the Administrator that it will enforce such

conditions and limitations (hereafter referred to in

31a

this section as the period of “federally assumed

enforcement”), except where an extension has been

granted under paragraph (5)(B) of this subsection, the

Administrator shall enforce any permit condition or

limitation with respect to any person—

(A) by issuing an order to comply with such

condition or limitation, or

(B) by bringing a civil action under subsection

(b) of this section.

(3) Whenever on the basis of any information

available to him the Administrator finds that any

person is in violation of section 1311, 1312, 1316,

1317, 1318, 1322(p), 1328, or 1345 of this title, or is in

violation of any permit condition or limitation implementing any of such sections in a permit issued under

section 1342 of this title by him or by a State or in a

permit issued under section 1344 of this title by a

State, he shall issue an order requiring such person to

comply with such section or requirement, or he shall

bring a civil action in accordance with subsection (b)

of this section.

(4) A copy of any order issued under this subsection shall be sent immediately by the Administrator

to the State in which the violation occurs and other

affected States. In any case in which an order under

this subsection (or notice to a violator under paragraph (1) of this subsection) is issued to a corporation,

a copy of such order (or notice) shall be served on any

appropriate corporate officers. An order issued under

this subsection relating to a violation of section 1318

of this title shall not take effect until the person to

whom it is issued has had an opportunity to confer

32a

with the Administrator concerning the alleged violation.

(5)(A) Any order issued under this subsection

shall be by personal service, shall state with reasonable specificity the nature of the violation, and shall

specify a time for compliance not to exceed thirty days

in the case of a violation of an interim compliance

schedule or operation and maintenance requirement

and not to exceed a time the Administrator determines to be reasonable in the case of a violation of a

final deadline, taking into account the seriousness of

the violation and any good faith efforts to comply with

applicable requirements.

(B) The Administrator may, if he determines (i)

that any person who is a violator of, or any person who

is otherwise not in compliance with, the time requirements under this chapter or in any permit issued

under this chapter, has acted in good faith, and has

made a commitment (in the form of contracts or other

securities) of necessary resources to achieve compliance by the earliest possible date after July 1, 1977,

but not later than April 1, 1979; (ii) that any extension

under this provision will not result in the imposition

of any additional controls on any other point or

nonpoint source; (iii) that an application for a permit

under section 1342 of this title was filed for such

person prior to December 31, 1974; and (iv) that the

facilities necessary for compliance with such requirements are under construction, grant an extension of

the date referred to in section 1311(b)(1)(A) of this

title to a date which will achieve compliance at the

earliest time possible but not later than April 1, 1979.

(6) Whenever, on the basis of information available to him, the Administrator finds (A) that any person

33a

is in violation of section 1311(b)(1)(A) or (C) of this

title, (B) that such person cannot meet the requirements for a time extension under section 1311(i)(2) of

this title, and (C) that the most expeditious and appropriate means of compliance with this chapter by such

person is to discharge into a publicly owned treatment

works, then, upon request of such person, the Administrator may issue an order requiring such person to

comply with this chapter at the earliest date practicable,

but not later than July 1, 1983, by discharging into a

publicly owned treatment works if such works concur

with such order. Such order shall include a schedule

of compliance.

(b) Civil actions

The Administrator is authorized to commence a

civil action for appropriate relief, including a permanent

or temporary injunction, for any violation for which he

is authorized to issue a compliance order under subsection (a) of this section. Any action under this subsection may be brought in the district court of the

United States for the district in which the defendant

is located or resides or is doing business, and such

court shall have jurisdiction to restrain such violation

and to require compliance. Notice of the commencement of such action shall be given immediately

to the appropriate State.

(1) Negligent violations

Any person who—

(A) negligently violates section 1311, 1312, 1316,

1317, 1318, 1321(b)(3), 1322(p), 1328, or 1345 of

34a

this title, or any permit condition or limitation

implementing any of such sections in a permit

issued under section 1342 of this title by the

Administrator or by a State, or any requirement

imposed in a pretreatment program approved

under section 1342(a)(3) or 1342(b)(8) of this title

or in a permit issued under section 1344 of this

title by the Secretary of the Army or by a State;

(B) negligently introduces into a sewer system

or into a publicly owned treatment works any

pollutant or hazardous substance which such

person knew or reasonably should have known

could cause personal injury or property damage

or, other than in compliance with all applicable

Federal, State, or local requirements or permits,

which causes such treatment works to violate any

effluent limitation or condition in any permit

issued to the treatment works under section 1342

of this title by the Administrator or a State;

shall be punished by a fine of not less than $2,500 nor

more than $25,000 per day of violation, or by

imprisonment for not more than 1 year, or by both. If

a conviction of a person is for a violation committed

after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than

$50,000 per day of violation, or by imprisonment of not

more than 2 years, or by both.

(2) Knowing violations

Any person who—

(A) knowingly violates section 1311, 1312, 1316,

1317, 1318, 1321(b)(3), 1322(p), 1328, or 1345 of

35a

this title, or any permit condition or limitation

implementing any of such sections in a permit

issued under section 1342 of this title by the

Administrator or by a State, or any requirement

imposed in a pretreatment program approved

under section 1342(a)(3) or 1342(b)(8) of this title

or in a permit issued under section 1344 of this

title by the Secretary of the Army or by a State;

(B) knowingly introduces into a sewer system

or into a publicly owned treatment works any

pollutant or hazardous substance which such

person knew or reasonably should have known

could cause personal injury or property damage

or, other than in compliance with all applicable

Federal, State, or local requirements or permits,

which causes such treatment works to violate any

effluent limitation or condition in a permit issued

to the treatment works under section 1342 of this

title by the Administrator or a State;

shall be punished by a fine of not less than $5,000 nor

more than $50,000 per day of violation, or by

imprisonment for not more than 3 years, or by both. If

a conviction of a person is for a violation committed

after a first conviction of such person under this paragraph, punishment shall be by a fine of not more than

$100,000 per day of violation, or by imprisonment of

not more than 6 years, or by both.

(3) Knowing endangerment

(A) General rule

Any person who knowingly violates section

1311, 1312, 1313, 1316, 1317, 1318, 1321(b)(3),

36a

1322(p), 1328, or 1345 of this title, or any permit

condition or limitation implementing any of

such sections in a permit issued under section

1342 of this title by the Administrator or by a

State, or in a permit issued under section 1344

of this title by the Secretary of the Army or by

a State, and who knows at that time that he

thereby places another person in imminent

danger of death or serious bodily injury, shall,

upon conviction, be subject to a fine of not more

than $250,000 or imprisonment of not more

than 15 years, or both. A person which is an

organization shall, upon conviction of violating

this subparagraph, be subject to a fine of not

more than $1,000,000. If a conviction of a person

is for a violation committed after a first conviction of such person under this paragraph, the

maximum punishment shall be doubled with

respect to both fine and imprisonment.

(B) Additional provisions

For the purpose of subparagraph (A) of this

paragraph—

(i) in determining whether a defendant

who is an individual knew that his conduct

placed another person in imminent danger of

death or serious bodily injury—

(I) the person is responsible only for

actual awareness or actual belief that

he possessed; and

(II) knowledge possessed by a person

other than the defendant but not by the

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defendant himself may not be attributed to the defendant;

except that in proving the defendant’s possession of actual knowledge, circumstantial evidence may be used, including evidence that the

defendant took affirmative steps to shield

himself from relevant information;

(ii) it is an affirmative defense to prosecution that the conduct charged was consented

to by the person endangered and that the

danger and conduct charged were reasonably

foreseeable hazards of—

(I) an occupation, a business, or a

profession; or

(II) medical treatment or medical or

scientific experimentation conducted by

professionally approved methods and

such other person had been made

aware of the risks involved prior to

giving consent;

and such defense may be established under

this subparagraph by a preponderance of the

evidence;

(iii) the term “organization” means a legal

entity, other than a government, established

or organized for any purpose, and such term

includes a corporation, company, association,

firm, partnership, joint stock company, foundation, institution, trust, society, union, or

any other association of persons; and

(iv) the term “serious bodily injury” means

bodily injury which involves a substantial

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risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the

function of a bodily member, organ, or mental

faculty.

(4) False statements

Any person who knowingly makes any false

material statement, representation, or certification in

any application, record, report, plan, or other document filed or required to be maintained under this

chapter or who knowingly falsifies, tampers with, or

renders inaccurate any monitoring device or method

required to be maintained under this chapter, shall

upon conviction, be punished by a fine of not more

than $10,000, or by imprisonment for not more than 2

years, or by both. If a conviction of a person is for a

violation committed after a first conviction of such

person under this paragraph, punishment shall be by

a fine of not more than $20,000 per day of violation, or

by imprisonment of not more than 4 years, or by both.

(5) Treatment of single operational upset

For purposes of this subsection, a single operational upset which leads to simultaneous violations of

more than one pollutant parameter shall be treated as

a single violation.

(6) Responsible corporate officer as “person”

For the purpose of this subsection, the term “person” means, in addition to the definition contained in

section 1362(5) of this title, any responsible corporate

officer.

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(7) Hazardous substance defined

For the purpose of this subsection, the term “hazardous substance” means (A) any substance designated

pursuant to section 1321(b)(2)(A) of this title, (B) any

element, compound, mixture, solution, or substance

designated pursuant to section 9602 of title 42(C) any

hazardous waste having the characteristics identified

under or listed pursuant to section 3001 of the Solid

Waste Disposal Act [42 U.S.C. 6921] (but not including any waste the regulation of which under the Solid

Waste Disposal Act [42 U.S.C. 6901 et seq.] has been

suspended by Act of Congress), (D) any toxic pollutant

listed under section 1317(a) of this title, and (E) any

imminently hazardous chemical substance or mixture

with respect to which the Administrator has taken

action pursuant to section 2606 of title 15.

(d) Civil penalties; factors considered in

determining amount

Any person who violates section 1311, 1312, 1316,

1317, 1318, 1322(p), 13281, or 1345 of this title, or any

permit condition or limitation implementing any of

such sections in a permit issued under section 1342 of

this title by the Administrator, or by a State, or in a

permit issued under section 1344 of this title by a

State, or any requirement imposed in a pretreatment

program approved under section 1342(a)(3) or 1342(b)

(8) of this title, and any person who violates any order

issued by the Administrator under subsection (a) of

this section, shall be subject to a civil penalty not to

exceed $25,000 per day for each violation. In determining the amount of a civil penalty the court shall

1 So in original.

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consider the seriousness of the violation or violations,

the economic benefit (if any) resulting from the violation, any history of such violations, any good-faith

efforts to comply with the applicable requirements, the

economic impact of the

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