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

No. 23-753

IN THE

Supreme Court of the United States

_____________

CITY AND COUNTY OF SAN FRANCISCO,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

_____________

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

_____________

BRIEF OF AMICI CURIAE PUBLIC

WASTEWATER AND STORMWATER

AGENCIES AND MUNICIPALITIES

SUPPORTING PETITIONER

_____________

DAVID Y. CHUNG

Counsel of Record

ELIZABETH B. DAWSON

HENRY W. LEUNG

CROWELL & MORING LLP

1001 Pennsylvania Ave., N.W.

Washington, DC 20004

(202) 624-2500

dchung@crowell.com

[Additional Counsel Listed on Signature Page]

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..................................... iii

INTERESTS OF AMICI CURIAE ............................. 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ...................................................... 4

ARGUMENT ............................................................ 10

I.

THE CWA DOES NOT AUTHORIZE

GENERIC WATER QUALITY

PROHIBITIONS IN DISCHARGE

PERMITS. ........................................................ 10

A. Generic water quality prohibitions are

inconsistent with the CWA’s plain

text. ........................................................... 10

B. The CWA’s purpose and history

confirm that the statute does not

authorize generic water quality

prohibitions in discharge permits. ........... 13

C. Longstanding EPA interpretations

correctly recognized the need for

discharge-specific limitations. .................. 16

II.

THE NINTH CIRCUIT’S DECISION

UNDERMINES CONGRESS’S INTENT

TO PROVIDE FINALITY AND

REGULATORY CERTAINTY. ........................ 20

A. Regulatory Certainty is a Cornerstone

of the CWA. ............................................... 20

B. Generic water quality prohibitions

undermine the regulatory certainty

ii

that the Act’s permit shield and repose

provisions were designed to provide......... 24

III. THE NINTH CIRCUIT’S DECISION

CREATES SIGNIFICANT

UNCERTAINTY FOR COMMUNITIES

NATIONWIDE. ............................................... 27

CONCLUSION ......................................................... 32

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Am. Paper Inst., Inc. v. EPA,

996 F.2d 346 (D.C. Cir. 1993) ........................... 13

Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) ....................................... 3, 30

Bethlehem Steel Corp. v. EPA,

538 F.2d 513 (2d Cir. 1976) ..................... 5, 12-14

Commonwealth of Puerto Rico v. Franklin

Cal. Tax Free Tr.,

579 U.S. 115 (2016) ........................................... 10

Conservation Law Found., Inc. v. Mass.

Water Res. Auth.,

Civ. A. No. 22-10626, 2023 WL 2072429

(D. Mass. Feb. 17, 2023) ................................... 31

Davis v. Mich. Dep’t of Treasury,

489 U.S. 803 (1989) ........................................... 21

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

430 U.S. 112 (1977) ................................ 21, 25-27

EPA v. Cal. ex rel. State Water Res. Control

Bd.,

426 U.S. 200 (1976) .................................... 4-6, 14

iv

TABLE OF AUTHORITIES

(continued)

Page(s)

Esquivel-Quintana v. Sessions,

581 U.S. 385 (2017) ........................................... 10

Friends of the Earth, Inc. v. Laidlaw Env’t.

Servs. (TOC), Inc.,

528 U.S. 167 (2000) ........................................... 31

Gen. Elec. Co. v. EPA,

53 F.3d 1324 (D.C. Cir. 1995) ........................... 25

Int’l Paper Co. v. Ouellette,

479 U.S. 481 (1987) ........................................... 16

In re: Ketchikan Pulp Company,

7 E.A.D. 605, 1998 WL 284964 (U.S.

EPA Environmental Appeals Board,

1998) .................................................................. 26

Nat. Res. Def. Council, Inc. v. Costle,

568 F.2d 1369 (D.C. Cir. 1977) ......................... 17

Nat. Res. Def. Council, Inc. v. EPA,

16 F.3d 1395 (4th Cir. 1993)............................. 13

Nat. Res. Def. Council v. EPA,

808 F.3d 556 (2d Cir. 2015) .............................. 19

Sackett v. EPA,

598 U.S. 651 (2023) ....................................... 2, 30

Trs. for Alaska v. EPA,

749 F.2d 549 (9th Cir. 1984)............................. 13

v

TABLE OF AUTHORITIES

(continued)

Page(s)

Va. Elec. & Power Co. v. Costle,

566 F.2d 446 (4th Cir. 1977)............................. 13

Statutes

33 U.S.C. § 407 ......................................................... 5

33 U.S.C. § 1251 et seq. ............................................ 4

33 U.S.C. § 1311(a)................................................. 30

33 U.S.C. § 1311(b)(1) ................................... 6, 10-11

33 U.S.C. § 1311(b)(1)(C) ....................................... 11

33 U.S.C. § 1313(c)(2)(A) .......................................... 6

33 U.S.C. § 1313(d)(1)(C) ....................................... 26

33 U.S.C. § 1319 ................................................. 3, 21

33 U.S.C. § 1319(c)-(d) ........................................... 30

33 U.S.C. § 1342 ................................................. 2, 30

33 U.S.C. § 1342(a)................................................. 22

33 U.S.C. § 1342(b)(1)(B) ....................................... 25

33 U.S.C. § 1342(b)(3) ............................................ 22

33 U.S.C. § 1342(j).................................................. 22

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

.................................................. 3, 7, 17, 20-21, 27

vi

TABLE OF AUTHORITIES

(continued)

Page(s)

33 U.S.C. § 1342(p)(3) (B)(iii) ................................ 12

33 U.S.C. § 1362(11) ................................ 6, 11-12, 15

33 U.S.C. § 1362(16) ............................................... 12

33 U.S.C. § 1365 ............................................... 21, 23

33 U.S.C. § 1369(b)........................................... 20, 22

33 U.S.C. § 1369(b)(1)(F) ................................... 7, 26

33 U.S.C. § 1369(b)(2) ........................................ 8, 23

Pub. L. No. 80-845, 62 Stat. 1155 (1948) ................ 4

Pub. L. No. 89-234, 79 Stat. 903 (1965) .................. 4

Pub. L. No. 92-500, 86 Stat. 816 (1972) .................. 4

Regulations

40 C.F.R. § 19.4 ...................................................... 30

40 C.F.R. § 122.44(d)(1)(i) .................................. 6, 17

40 C.F.R. § 122.44(d)(1)(ii) ..................................... 19

40 C.F.R. § 122.44(d)(1)(vii)(A) ..................... 7, 18-19

40 C.F.R. § 122.46 .................................................. 25

40 C.F.R. §§ 122.62–122.63 ................................... 25

40 C.F.R. § 123.44 .................................................. 26

vii

TABLE OF AUTHORITIES

(continued)

Page(s)

Other Authorities

117 Cong. Rec. 38,722 (1971) ................................. 15

118 Cong. Rec. 33,692 (1972) ................................. 23

45 Fed. Reg. 33,290 (May 19, 1980) ................. 21-22

49 Fed. Reg. 37,998, 38,045 (Sept. 26, 1984) ........ 25

54 Fed. Reg. 23,868, 23,872 (June 2, 1989) ...... 18-19

EPA, 2022 Clean Watersheds Needs Survey

Report to Congress (Apr. 2024) ......................... 28

Harold J. Krent & Ethan G. Shenkman, Of

Citizen Suits and Citizen Sunstein, 91

Mich. L. Rev. 1793 (1993) ................................. 31

Rachel Layne, Water costs are rising across

the U.S. - here's why, CBS News (Aug.

27, 2019) ............................................................ 28

S. Rep. No. 92-414 (1971)

............................................. 5, 9, 14-16, 20, 23-24

INTERESTS OF AMICI CURIAE

Amici curiae are municipalities and public clean

water utilities from across the country that provide

flood and stormwater management, wastewater

treatment, water supply, and water conservation services to their communities.1 They are AlexRenew (Virginia), Boston Water and Sewer Commission, Buffalo

Sewer Authority, Citizens Energy Group (Indianapolis), City of Mountain View (California), City of New

York, City of Sunnyvale (California), City of Tacoma,

Clean Water Services (Washington County, Oregon),

District of Columbia Water and Sewer Authority,

Greater Peoria Sanitary District (Illinois), Green Bay

Metropolitan Sewerage District, Louisville/Jefferson

County Metropolitan Sewer District, Massachusetts

Water Resources Authority, Metro Water Recovery

(Denver), Narragansett Bay Commission (Rhode Island), Northeast Ohio Regional Sewer District, Passaic Valley Sewerage Commission (New Jersey), and

Springfield Sewer and Water Commission (Massachusetts).

These municipalities and utilities are joined by

several national and state associations, whose members likewise play a critical role in protecting the nation’s waters and public health: the National Association of Clean Water Agencies, Association of Missouri

Cleanwater Agencies, California Association of Sanitation Agencies, Illinois Association of Wastewater

Agencies, North Carolina Water Quality Association,

1 No counsel for any party authored this brief in whole or in part,

and no person or entity has made any monetary contribution to

the preparation or submission of the brief other than amici curiae, their members, or their counsel.

2

Oregon Association of Clean Water Agencies, South

Carolina Water Quality Association, West Virginia

Municipal Water Quality Association, and Wet

Weather Partnership. These associations’ members

include hundreds of municipal clean water agencies

that own, operate, and manage publicly-owned treatment works, wastewater and stormwater sewer systems, water reclamation districts, and infrastructure

relating to all aspects of wastewater collection, treatment, and disposal. Collectively, they provide

wastewater and stormwater services to the majority

of the nation’s sewered population.

Amici or their members have for decades operated under Clean Water Act (“CWA” or “Act”) National Pollutant Discharge Elimination System

(“NPDES”) permits as they provide stormwater and

sanitation services to communities throughout the

country. See 33 U.S.C. § 1342. They play a unique role

in NPDES implementation, as, in addition to being

subject to their own discharge requirements, many of

them are also charged with running NPDES pretreatment programs and illicit discharge and detection

programs designed to keep harmful pollutants from

entering public sewer and stormwater systems. Like

the Petitioner, amici or their members depend on

their NPDES permits to provide clear notice of the full

extent of their CWA compliance obligations. This notice is necessary not only because utilities must rely

on their permits as the basis for planning and undertaking major infrastructure investments that directly

impact the public’s daily lives and pocketbooks, but

also because “[t]he CWA is a potent weapon.” Sackett

v. EPA, 598 U.S. 651, 660 (2023). Indeed, amici or

their members could be subject to “crushing” civil and

criminal penalties and injunctive action “even for

3

inadvertent violations” of their permits. Army Corps

of Eng’rs v. Hawkes Co., 578 U.S. 590, 602 (2016)

(Kennedy, J., concurring); 33 U.S.C. § 1319.

This case concerns the legality of generic permit

terms that vaguely prohibit actions like “polluting,” or

“causing or contributing to the violation of water quality standards.” Such generic prohibitions leave permittees guessing about whether compliance with all

other permit terms—which include numerous detailed obligations that are often the product of a

multi-year permitting proceeding—is somehow not

enough to constitute compliance with the CWA. Congress expressly sought to avoid this uncertainty when

it included a statutory safe harbor found at 33 U.S.C.

Section 1342(k), often referred to as the “permit

shield,” which specifies that “compliance with a[n

NPDES] permit” amounts to full compliance with the

CWA.

The Ninth Circuit’s decision affirming the inclusion of generic water quality prohibitions in permits

undermines the certainty provided by the permit

shield that is foundational to the NPDES program

and leaves amici, their members, and other dischargers whose permits include such generic prohibitions exposed to inconsistent, arbitrary, and unpredictable enforcement actions. The resulting uncertainty significantly hampers the ability of communities to efficiently plan, operate, maintain, and invest

billions of dollars in essential clean water infrastructure. This in turn threatens local residents—including those in disadvantaged communities—who will be

left footing the bill for any unplanned compliance expenditures through increased rates.

4

INTRODUCTION AND

SUMMARY OF ARGUMENT

In 1972, Congress enacted the CWA to address

significant deficiencies in prior water pollution control statutes. See Federal Water Pollution Control Act

Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816

(1972); 33 U.S.C. § 1251 et seq. At the heart of the Act

is the clear distinction Congress drew between the

broadly applicable—but not self-enforcing—water

quality goals that states must establish for water bodies, referred to as water quality standards, and the

enforceable limits (i.e., effluent limitations) for specific discharges into those water bodies that a permit

writer determines are necessary to help achieve those

goals. The Ninth Circuit’s decision erases Congress’s

careful and intentional distinction between water

quality standards and effluent limitations from the

statutory text to the detriment of public clean water

agencies and countless other regulated entities.

Under the pre-1972 federal water quality regime,2 the primary enforcement mechanisms for pollution control were water quality standards that described acceptable levels of pollution in waters that

received discharges. That approach to pollution control “proved ineffective” for several reasons: standards “focused on the tolerable effects rather than the

preventable causes of water pollution,” federal and

state governments “awkwardly shared” responsibility

for establishing standards, and enforcement was

cumbersome. EPA v. Cal. ex rel. State Water Res. Control Bd., 426 U.S. 200, 202 (1976). Collectively, these

2 See Water Quality Act of 1965, Pub. L. No. 89-234, 79 Stat. 903

(1965); Federal Water Pollution Control Act of 1948, Pub. L. No.

80-845, 62 Stat. 1155 (1948).

5

problems made “it very difficult to develop and enforce standards to govern the conduct of individual

polluters.” Id. at 202-03 (emphasis added).

Although some states developed discharge permit

programs to enforce water quality standards by deriving requirements specific to individual dischargers,

not all states did so. See id. at 203. This prompted the

federal government to revive the permitting program

under the Refuse Act of 1899. Id.; see 33 U.S.C. § 407.

That effort fell short because discharge permits were

scarce, and those that existed were deficient because,

among other things, “[t]he goal of the discharge permit conditions was to achieve water quality standards

rather than to require individual polluters to minimize effluent discharge[.]” EPA, 426 U.S. at 203. Such

vague permit conditions proved unworkable in the absence of precise compliance requirements for individual dischargers because regulators could only determine a discharger’s compliance with water quality

standards retroactively.

Congress sought to address these inadequacies in

the CWA, which created a “major change in the enforcement mechanism of the Federal water pollution

control program from water quality standards to effluent limits.” S. Rep. No. 92-414, at 7 (1971); see also

Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 515 (2d

Cir. 1976) (“[A]lthough water quality standards and

effluent limitations are related, . . . the two are entirely different concepts and the difference is at the

heart of the 1972 Amendments.”). Congress expressed

this major change in the plainest of language by distinguishing between discharge-specific “effluent limitations” and the generally applicable “water quality

standards” that such effluent limitations must be

6

“necessary to meet” or “required to implement[.]” 33

U.S.C. § 1311(b)(1). Emphasizing the need for specificity in regulating the conduct of individual dischargers, Congress defined “effluent limitation” to

mean “any restriction . . . on quantities, rates, and

concentrations of chemical, physical, biological, and

other constituents which are discharged from point

sources into navigable waters[.]” Id. § 1362(11).

Water quality standards under the CWA, which

“consist of the designated uses of the navigable waters

involved and the water quality criteria for such waters based upon such uses,” are not self-enforcing. 33

U.S.C. § 1313(c)(2)(A). Because these standards

broadly apply to water bodies, not individual dischargers, they must be translated into requirements

for potential dischargers. EPA, 426 U.S. at 205. To

that end, Congress established the NPDES program

in 1972. NPDES permits are the mechanism for

transforming “generally applicable” requirements

such as water quality standards “into the obligations

(including a timetable for compliance) of the individual discharger.” Id.

NPDES permits are issued only after an exhaustive permitting process. Among other steps, a permit

writer must determine whether specific limits are

needed to meet or implement water quality standards

by conducting a detailed analysis of whether the proposed discharges “will cause, have the reasonable potential to cause, or contribute to an excursion above

any State water quality standard,” considering existing permit limits and other sources of pollution. Id.

§ 122.44(d)(1)(i). If the permit writer finds such a reasonable potential, the next step is to develop one or

more specific effluent limitations for the pollutant(s)

7

at issue in the proposed discharge, which must be set

at a level that is “derived from, and complies with all

applicable

water

quality

standards.”

Id. § 122.44(d)(1) (vii)(A).

The permitting process culminates in the issuance of a permit that describes precisely what the discharger must do to ensure compliance with the CWA.

The permit constitutes a final and binding determination by the issuing agency that authorized discharges

compliant with the permit’s terms will not cause or

contribute to an exceedance of applicable water quality standards.

Congress intended NPDES permits to provide

both permittees and agencies implementing the CWA

finality and certainty. First, Congress specified that

“compliance with a[n NPDES] permit” amounts to full

compliance with the CWA. 33 U.S.C. § 1342(k). In order for this statutory “permit shield” to mean anything, the effluent limitations in permits must be sufficiently specific so that permittees have fair notice of

how to ensure that their discharges comply. Generic

permit terms such as “do not cause pollution” are subjective and expose permittees to after-the-fact enforcement actions that directly undermine Congress’s

decision to provide a safe harbor from CWA liability

for dischargers acting in good faith and in accordance

with their known obligations. Second, Congress mandated that all challenges to the issuance or denial of

an NPDES permit “shall be made within 120 days

from the date of such . . . issuance[.]” 33 U.S.C.

§ 1369(b)(1)(F). To guard against later collateral attacks on a permit—including by any party arguing

that the specific limitations in a permit are insufficient to ensure compliance with water quality

8

standards—Congress made it clear that an “[a]ction

. . . with respect to which review could have been obtained under [§ 1369(b)(1)] shall not be subject to judicial review in any civil or criminal proceeding for

enforcement.” Id. § 1369(b)(2).

The Ninth Circuit’s decision upholding generic

water quality prohibitions runs contrary to the CWA’s

text, purpose, and history, undermines Congress’s

goal of promoting finality, and turns CWA compliance

into a moving target. In overhauling the inadequate

pre-1972 water pollution control regime, Congress intended for NPDES permit writers to use water quality

standards as a basis upon which to determine

whether effluent limits are necessary, and, if so, to derive discharge-specific, enforceable effluent limitations. Contrary to this scheme, the Ninth Circuit’s decision allows permit writers to treat the water quality

standards themselves as independently enforceable

“limitations” without clarifying what is expected of an

individual discharger to comply. By analogy, while

the CWA calls for regulators to set a safe speed limit

for a road, the Ninth Circuit’s decision would allow

them to instead simply instruct drivers to “avoid unsafe speeds,” thereby leaving drivers to guess which

speeds, exactly, the police—or other drivers—might

consider unsafe. In doing so, the Ninth Circuit’s decision ignores the statutory distinction between effluent limitations and water quality standards, as well

as the CWA’s overall design and history, and even the

U.S. Environmental Protection Agency’s (“EPA”) own

longstanding interpretations of the NPDES permitting process.

Crucially, for amici, generic water quality prohibitions undermine the finality and certainty that

9

Congress intended to provide through the permit

shield provision and the provision mandating that

challenges to NPDES permits be brought within 120

days of permit issuance. Under the Ninth Circuit’s decision, permittees remain vulnerable throughout the

life of their NPDES permits to enforcement actions by

regulators and citizen plaintiffs alleging “violations”

of unspecified, unknown, and unknowable requirements. Such actions ignore Congress’s intent to preclude “‘common law’ or court-developed definition[s]

of water quality” and the “reanalysis of . . . matters

[that] have been settled in the administrative procedure,” such as the determination of whether and what

specific effluent limitations are necessary to avoid

causing or contributing to a water quality standards

violation. See S. Rep. No. 92-414, at 79 (emphasis

added). These concerns become more acute every day

given the increasingly litigious regulatory environment permittees face.

The permit terms at issue here are no outliers. Generic prohibitions against “causing or contributing to

the violation of water quality standards” are frequently included in NPDES permits. At particular

risk are amici and other public utilities charged with

running large-scale critical infrastructure systems

that provide vital environmental and human health

services to communities nationwide with limited public dollars. Public utilities invest millions, if not billions, of public dollars to maintain and improve their

stormwater and wastewater systems to ensure compliance with the CWA. When meeting compliance obligations may entail tearing up city streets or investing the hard-earned money of disadvantaged ratepayers, it is critical that those compliance obligations not

be a moving—and mutable—target. Simply stated,

10

when public investments are inefficient because regulatory requirements change midstream, rates

charged to the public increase. Generic prohibitions in

permits risk the imposition of ever-changing regulatory requirements on amici and are therefore fundamentally incompatible with sound infrastructure investment and the affordable provision of public clean

water services.

This Court should reverse the decision below and

clarify permit writers’ obligations under the CWA to

establish clear, discharge-specific effluent limitations

that fully apprise regulated entities of their compliance obligations.

ARGUMENT

I. THE CWA DOES NOT AUTHORIZE GENERIC WATER QUALITY PROHIBITIONS

IN DISCHARGE PERMITS.

A. Generic water quality prohibitions are inconsistent with the CWA’s plain text.

The statutory analysis “begin[s], as always, with

the text.” Esquivel-Quintana v. Sessions, 581 U.S.

385, 391 (2017). Because the statutory text here is

straightforward, that is “where the inquiry should

end.” Commonwealth of Puerto Rico v. Franklin Cal.

Tax Free Tr., 579 U.S. 115, 125 (2016) (citation omitted). CWA Section 301(b)(1) plainly illustrates the

distinction between the specific effluent limitations

that apply to a permittee’s discharges, and the water

quality standards that apply to the water bodies that

receive not only the permittee’s discharges, but also

pollutants from other sources. See 33 U.S.C.

§ 1311(b)(1). Under that provision, permit writers

11

must establish “effluent limitations” that are “necessary to meet water quality standards . . . established

pursuant to any State law or regulations . . . or any

other Federal law or regulation, or required to implement any applicable water quality standard[.]” Id.

(emphasis added). Congress further defined “effluent

limitation” to mean “any restriction . . . on quantities,

rates, and concentrations of chemical, physical, biological, and other constituents which are discharged

from point sources into navigable waters, . . ., including schedules of compliance.” Id. § 1362(11). Read together, these provisions require permit writers to

take the broad and ambitious goals articulated in water quality standards and translate them into tangible, concrete actions that entities seeking to discharge

into navigable waters must take to ensure they are

doing their part to attain those goals.

Generic water quality prohibitions that merely tell

permit holders to avoid causing or contributing to violations of water quality standards, or to avoid creating pollution, contamination, or nuisance, eliminate

the Act’s core distinction between effluent limitations

and water quality standards. Generic prohibitions do

not tell dischargers what is “necessary to meet” or

what is “required to implement” applicable water

quality standards, 33 U.S.C. § 1311(b)(1)(C), nor do

they specify any restrictions on “quantities, rates, and

concentrations” of pollutants. Id. § 1362(11). Rather

than translate water quality goals into concrete requirements necessary to meet or implement those

goals, generic prohibitions impermissibly merge two

distinct statutory concepts by effectively treating water quality standards as discharge-specific limitations

that a permittee must somehow meet. Generic prohibitions also eliminate the flexibility Congress

12

provided by explicitly including “schedules of compliance” in the definition of “effluent limitation.” See id.

§ 1362(11). By definition, such schedules allow permittees to take incremental steps “leading to compliance with an effluent limitation, other limitation, prohibition, or standard.” Id. § 1362(16). That flexibility

is impossible if a permittee must immediately and at

all times comply with a generic command to avoid violating water quality standards.3

This Court and many others have recognized the

importance of preserving the textual distinction between discharge-specific effluent limitations and a receiving water’s broadly applicable water quality

standards. See, e.g., EPA, 426 U.S. at 204–05 (the

CWA marked a shift away from water quality standards governing all dischargers to “restriction[s] . . . on

quantities, rates, and concentrations of chemical,

physical, biological, and other constituents which are

3 Generic prohibitions are also sometimes troublingly included

in NPDES permits for municipal separate storm sewer systems

(MS4s), which several amici operate. Because Congress recognized that such systems have little practical ability to control

what pollutants flow into stormwater drainage systems, it specified separate NPDES requirements for MS4s. Rather than require strict compliance with water quality standards, CWA Section 402 instead sets out a different standard for MS4s. MS4s

must only implement “controls to reduce the discharge of pollutants to the maximum extent practicable, including management

practices,

control

techniques

and

system,

design and engineering methods[.]” 33 U.S.C. § 1342(p)(3)

(B)(iii). Including generic water quality standards-based prohibitions in MS4 permits effectively writes the “maximum extent

practicable” requirement out of the CWA and leaves the door

open for the imposition of impracticable, if not impossible, requirements on these public systems, contrary to Congress’s intent.

13

discharged from point sources”) (citation omitted);

Am. Paper Inst., Inc. v. EPA, 996 F.2d 346, 350 (D.C.

Cir. 1993) (“[W]ater quality standards by themselves

have no effect on pollution; the rubber hits the road

when the state-created standards are used as the basis for specific effluent limitations in NPDES permits.”); Nat. Res. Def. Council, Inc. v. EPA, 16 F.3d

1395, 1399 (4th Cir. 1993) (“Water quality standards

are a critical component of the CWA regulatory

scheme because such standards serve as a guideline

for setting applicable limitations in individual discharge permits.”); Trs. for Alaska v. EPA, 749 F.2d

549, 557 (9th Cir. 1984) (“Effluent limitations are a

means of achieving water quality standards.”).

As the Second Circuit aptly summarized, “although water quality standards and effluent limitations are related, . . . the two are entirely different

concepts and the difference is at the heart of the 1972

Amendments.” Bethlehem Steel Corp., 538 F.2d at

515; accord Va. Elec. & Power Co. v. Costle, 566 F.2d

446, 451 n.17 (4th Cir. 1977) (acknowledging the “fundamental differences in the statutory scheme between effluent limitations and water quality standards”).

B. The CWA’s purpose and history confirm

that the statute does not authorize generic water quality prohibitions in discharge permits.

The CWA’s purpose and history reinforce the textual distinction between effluent limitations and water quality standards. Before the CWA’s enactment in

1972, federal water pollution control laws relied on

“ambient water quality standards specifying the

14

acceptable levels of pollution in a State’s interstate

navigable waters as the primary mechanism in its

program for the control of water pollution.” EPA, 426

U.S. at 202. That standards-based approach was deficient in large part because “[t]he goal of the discharge

permit conditions was to achieve water quality standards rather than to require individual polluters to

minimize effluent discharge[.]” Id. at 203 & n.6 (citing

S. Rep. No. 92-414, at 5).

Mindful of these failures, Congress enacted the

CWA to address its “dissatisfaction with water quality standards as a method of pollution control,” and it

replaced that ineffective scheme with a new permitting program that would impose discharge-specific effluent limitations. Bethlehem Steel Corp., 538 F.2d at

515; see also S. Rep. No. 92-414, at 7 (“[T]he Federal

water pollution control program . . . has been inadequate in every vital aspect[.]”). Congress concluded

that there was “[a] critical delay of enforcement” under the prior program in part because regulators

could only bring enforcement actions after water quality standards had already been violated. See S. Rep.

92-414, at 4 (enforcement actions could be brought

once “wastes discharged by polluters reduce water

quality below the standards”); see also EPA, 426 U.S.

at 204 (acknowledging that under the prior regulatory

scheme, regulators had to “work backward from an

overpolluted body of water to determine which point

sources . . . must be abated”). Without clear, discharge-specific limits, the prior ex post scheme

“ma[d]e it very difficult to develop and enforce standards to govern the conduct of individual polluters.”

EPA, 426 U.S. at 202–03.

15

The CWA “reflects a significant shift in focus from

controlling pollution indirectly, through water quality

standards, to an emphasis on direct control of effluents. Water quality standards will remain significant

in the new program as an index of our progress, but

they will serve less as an instrument of that progress.”

117 Cong. Rec. 38,722, 38,806 (1971) (Sen. Eagleton);

see also id. at 38,805 (Sen. Randolph) (The CWA “represent[ed] a major change in the basic philosophy governing our attempts to eliminate water pollution. In

altering our approach from standards of water quality

to controls based on effluent limitations, we are starting down a new road, one that will reach the same

goal but by a more direct and precise route.”).

Under the CWA, Congress expected that regulators would use the newly established NPDES permit

program to “apply specific effluent limitations for

each [] source[,]” S. Rep. No. 92-414, at 44 (emphasis

added), and water quality standards would serve only

as a “measure of program effectiveness and performance, not a means of elimination and enforcement.”

Id. at 8 (emphasis added). To ensure consistency with

Congress’s intent, effluent limitations must apply at

the point of discharge, rather than to the receiving

water itself.

Congress carefully defined “effluent limitation” to

refer to specific and actionable restrictions on individual discharges. See 33 U.S.C. § 1362(11). Through this

definition, Congress clarified that “control requirements are not met by narrative statements of obligation, but rather are specific requirements of specificity

as to the quantities, rates, and concentration of physical, chemical, biological and other constituents

16

discharged from point sources.” S. Rep. No. 92-414, at

77 (emphasis added).

As this Court has observed, “[t]he history of the

1972 amendments shows that Congress intended to

establish ‘clear and identifiable’ discharge standards.” Int’l Paper Co. v. Ouellette, 479 U.S. 481, 496

(1987) (quoting S. Rep. No. 92-414, at 81). Generic

prohibitions against causing or contributing to water

quality standard violations, however, make it “virtually impossible to predict the standard for a lawful

discharge,” and “[i]t is unlikely—to say the least—

that Congress intended to establish such a chaotic

regulatory structure.” Id. at 496-97 (internal quotation marks and citation omitted). The Ninth Circuit’s

decision upholding generic prohibitions conflicts with

Congress’s deliberate move away from permits that

vaguely instruct dischargers to achieve water quality

standards and towards permits that impose discharge-specific effluent limitations necessary to ensure receiving waters attain and maintain their applicable standards.

C. Longstanding EPA interpretations correctly recognized the need for dischargespecific limitations.

Historical EPA practice confirms what the text,

purpose, and history make clear: to avoid repeating

the failures of the pre-1972 federal water pollution

control laws and the ineffective discharge permits issued thereunder, Congress intended for permit writers to develop discharge-specific effluent limitations

that translate water quality standards into specific

restrictions. Those longstanding interpretations are

17

inconsistent with the interpretation that EPA espouses here and that the Ninth Circuit affirmed.

In the initial years of implementing the CWA,

EPA emphasized that “both the discharger and the

regulatory agency need to have an identifiable standard upon which to determine whether the facility is in

compliance. That was the principal [sic] of the passage of the 1972 Amendments.” Nat. Res. Def. Council, Inc. v. Costle, 568 F.2d 1369, 1378 (D.C. Cir. 1977)

(quoting EPA Memorandum on “Impossibility”). More

recently, EPA reiterated that “[w]ater quality standards are not directly enforceable, despite commonly

held beliefs” and thus, “when standards are not being

met, there is no legal requirement for specific

measures to be taken by any of the pollutant sources.”

See U.S. EPA, Watershed Academy Web: Introduction

to the Clean Water Act § 34, https://cfpub.epa.gov/watertrain/moduleFrame.cfm?parent_object_id=2673.

“NPDES permittees are required to meet their effluent limits,” including those developed during the permitting process to achieve applicable water quality

standards, and the failure to do so can trigger enforcement actions. Id. But if permittees are complying with

the effluent limitations in their permits, they need not

speculate on what other specific measures might be

required of them that the permit writer did not deem

necessary to include. See generally 33 U.S.C.

§ 1342(k).

EPA’s decades-old regulations and its related permitting guidance set forth detailed requirements for

determining whether a proposed discharge “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); see also U.S.

18

EPA, NPDES Permit Writers’ Manual, §§ 6.2 & 6.3

(2010), https://www.epa.gov/sites/default/files/201509/documents/pwm_2010.pdf. When a permit writer

determines that such “reasonable potential” exists,

EPA’s regulations and guidance prescribe how permit

writers must develop discharge-specific effluent limitations at levels that are “derived from, and compl[y]

with all applicable water quality standards.” See 40

C.F.R. § 122.44(d)(1)(vii)(A); see also NPDES Permit

Writers’ Manual, § 6.4. Permit writers must also catalog and disclose all “data and information used to determine the applicable water quality standards and

how that information . . . was used to derive” the specific effluent limitations to provide the “permit applicant and the public a transparent, reproducible, and

defensible description of how the permit writer” derived those limitations. NPDES Permit Writers’ Manual, § 6.4.1.5.

When EPA promulgated these regulatory requirements, it underscored the highly technical and discretionary nature of determining whether a proposed

discharge has a reasonable potential to cause or contribute to a water quality standard violation. See 54

Fed. Reg. 23,868, 23,872 (June 2, 1989). Permit writers must “use reliable and consistent procedures” and

consider the “dilution of the effluent in the receiving

water . . ., contributions of the pollutant from upstream point and nonpoint sources, the variability of

the pollutant in the effluent, and, when evaluating

whole effluent toxicity, the sensitivity of the test species in a toxicity test.” Id. Judgment calls related to

whether a discharge causes or contributes to a water

quality standard violation are best left to permit writers with the requisite expertise and experience,

19

rather than the courts, as Congress intended. See infra Section II.A.

EPA has also stressed that “[b]efore requiring a

water quality-based effluent limit, the permitting authority must have a basis for finding that discharges

have the reasonable potential to cause excursions

above water quality criteria.” 54 Fed. Reg. at 23,873.

EPA assured stakeholders that its NPDES regulations “will not result in any unnecessary effluent limits in NPDES permits because the permitting authority must satisfy the procedures in [40 C.F.R. §

122.44(d)(1)(ii)] before establishing [such] limits.” Id.

EPA correctly recognized that under the CWA, permit

writers must first determine the actual need for such

limitations to protect water quality before imposing

water quality-based limitations.

The Ninth Circuit’s holding renders these requirements superfluous by allowing permit writers to

“simply give up and refuse to issue more specific

guidelines” and instead force permittees to find their

own way to determine whether their conduct causes

or contributes to a violation of a water quality standard. Nat. Res. Def. Council v. EPA, 808 F.3d 556, 578

(2d Cir. 2015). Worse still, inclusion of generic water

quality prohibitions in permits allows regulators and

citizen plaintiffs alike to read requirements into a

permit that were not thoroughly vetted or contemplated during the permitting process. Generic prohibitions are not “derived from . . . applicable water

quality standards.” 40 C.F.R. § 122.44(d)(1)(vii)(A).

Rather than treat water quality standards as the

goals upon which regulators must base enforceable effluent limits in permits, the Ninth Circuit’s opinion

improperly conflates the goals themselves with the

20

means of achieving them. The decision does so in direct contravention of Congress’s intent that water

quality standards serve only as an endpoint to assess

the effectiveness of pollution controls, “not a means of

elimination and enforcement.” S. Rep. No. 92-414, at

8. Accordingly, the Ninth Circuit’s decision severely

undermines permitting certainty and unfairly burdens permittees including public clean water utilities.

II. THE NINTH CIRCUIT’S DECISION UNDERMINES CONGRESS’S INTENT TO PROVIDE

FINALITY AND REGULATORY CERTAINTY.

Recognizing the Act’s fundamental distinction between discharger-specific effluent limitations and

generally applicable water quality standards is not an

academic exercise. It is key to realizing Congress’s

goals of providing finality and regulatory certainty in

the NPDES program and ensuring that actions to enforce specific permit terms do not involve de novo determinations on what additional limitations a permittee must comply with beyond those that permit writers have deemed necessary in the exercise of their

best professional judgment. By allowing the inclusion

of generic water quality prohibitions in NPDES permits, the Ninth Circuit’s decision severely undermines the CWA’s permit shield, 33 U.S.C. § 1342(k),

and invites enforcement actions that flout the Act’s

repose provision, 33 U.S.C. § 1369(b).

A. Regulatory Certainty is a Cornerstone of

the CWA.

Statutory provisions highlighting the CWA’s textual distinction between effluent limitations and water quality standards “cannot be construed in a

21

vacuum,” but instead “must be read in their context

and with a view to their place in the overall statutory

scheme.” Davis v. Mich. Dep’t of Treasury, 489 U.S.

803, 809 (1989). The Ninth Circuit’s holding not only

disregards the plain language of the CWA, it also frustrates Congress’s goal of ensuring finality and certainty, which is reflected throughout the Act.

Section 402(k)’s “permit shield” clearly conveys

Congress’s goal. That section assures permit holders

that “[c]ompliance with a permit . . . shall be deemed

compliance, for purposes of sections 1319 and 1365 of

this title, with sections 1311, 1312, 1316, 1317, and

1343 of this title[.]” 33 U.S.C. § 1342(k). Section

402(k) thus creates a safe harbor from enforcement

under CWA sections 1319 and 1365, which authorize

civil and criminal actions by the government (Section

1319) as well as citizen suits (Section 1365). As this

Court explained, the permit shield “serves the purpose of giving permits finality” by “insulat[ing] permit

holders from changes in various regulations during

the period of a permit” and “reliev[ing] them of having

to litigate in an enforcement action the question

whether their permits are sufficiently strict.” E. I. du

Pont de Nemours & Co. v. Train, 430 U.S. 112, 138

n.28 (1977).

EPA itself has explained that a primary purpose

for issuing a permit “is to prescribe with specificity

the requirements that a [permit holder] will have to

meet . . . so that the facility can plan and operate with

knowledge of what rules apply. . ..” EPA Consolidated

Permit Regulations, 45 Fed. Reg. 33,290, 33,312 (May

19, 1980). The permit shield “places the burden on

permit writers rather than permittees to search

through the applicable regulations and correctly

22

apply them to the permittee through its permit.” Id.

If a permit applicant provides all the necessary information to a permit writer, it is the permit writer’s responsibility to develop and incorporate into the permit all limits necessary to comply with the CWA. Id.

The permittee is entitled to rely on the resulting permit “to know the extent of its enforceable duties.” Id.

Thus, “if the permit writer makes a mistake and does

not include a requirement of the appropriate Act in

the permit document, the permittee will [not] be enforced against[.]” Id.

Section 1369(b) reflects a similar emphasis on finality and certainty. Under that provision, judicial review of the issuance or denial of NPDES permits is

available only “within 120 days from the date of such

. . . issuance or denial,” and issues that could have

been raised during that 120-day window “shall not be

subject to judicial review in any civil or criminal proceeding for enforcement.” 33 U.S.C. § 1369(b). This

fixed repose period encourages full and frank participation by all interested parties, including third parties, at the same time to ensure effluent limitations

protective of water quality are established before permit issuance.4 The 120-day window and the preclusion of subsequent collateral attacks on permitting

decisions assures both permittees and permit writers

that any concerns over a permit’s terms—including,

but not limited to, determinations that the authorized

discharges do not have the reasonable potential to

4 The CWA provides that there be an “opportunity for public

hearing” before the issuance of any NPDES permit issues, see 33

U.S.C. §§ 1342(a), 1342(b)(3), and that a “copy of each permit

application and each permit . . . shall be available to the public.” Id. § 1342(j).

23

cause or contribute to an excursion of water quality

standards—will be conclusively resolved by a certain

date and will not be relitigated, or raised for the first

time, in any enforcement proceeding, including citizen suits under 33 U.S.C. § 1365. See 33 U.S.C. §

1369(b)(2).

The legislative history reinforces the textual emphasis on finality and regulatory certainty. According

to the CWA’s chief congressional proponent, Senator

Muskie, the “three essential elements” of the 1972

CWA are “uniformity, finality, and enforceability.”

118 Cong. Rec. 33,692, 33,693 (1972) (emphasis

added). As he noted, “[w]ithout these elements a new

law would not constitute any improvement on the

old.” Id. Elsewhere, a committee report explains that

“[e]nforcement of violations of requirements under

this Act should be based on relatively narrow fact situations requiring a minimum of discretionary decision making or delay.” S. Rep. No. 92-414, at 64. And

when Congress enacted the CWA’s citizen suit provision, it pointedly denounced “‘common law’ or courtdeveloped definition[s] of water quality” and made

clear that citizen suit enforcement “would not require

reanalysis of . . . matters [that] have been settled in

the administrative procedure leading to the establishment of such effluent” limitations. Id. at 79 (emphasis

added).

This history illustrates that Congress expected

permit writers to determine what specific limits are

needed to ensure discharges will not run afoul of water quality standards, and that subsequent actions to

enforce those limits would be judged based on the “objective evidentiary standard” articulated by those

24

limits rather than a retrial of what those limits should

have included. Id.

B. Generic water quality prohibitions undermine the regulatory certainty that the

Act’s permit shield and repose provisions

were designed to provide.

Generic water quality prohibitions gut the CWA’s

permit shield and repose provisions of their finalityconferring force. The statutory safe harbor premised

on compliance with an NPDES permit means nothing

if that permit sets undefined and unknowable touchstones of compliance. Congress’s directive to bring all

permit-related challenges within 120 days, and the

preclusion of such challenges in the context of enforcement proceedings, likewise accomplishes nothing if

agencies or citizen plaintiffs can perpetually sue permittees alleging that the permittee must do more to

avoid causing or contributing to a violation of a water

quality standard. Yet that is precisely what the Ninth

Circuit’s decision allows. Contrary to Congress’s intent, enforcement actions will become protracted undertakings involving “court-developed definition[s] of

water quality,” rather than more limited proceedings

requiring “a minimum of discretionary decision making or delay.” See S. Rep. No. 92-414, at 64 & 79. Under the Ninth Circuit’s logic, citizen plaintiffs are not

only authorized to challenge permitting decisions and

subsequently enforce a permit’s terms, they can also

rewrite those permit terms at any time throughout

the life of the permit.

EPA’s justification for opening permit holders up

to this kind of post hoc enforcement—which the Ninth

Circuit accepted—is that permit writers must be able

25

to include generic prohibitions as a “backstop” to ensure that discharges comply with the CWA. This logic

is unpersuasive. App. 36.

Regulators already have longstanding “backstop”

authority under EPA’s regulations to modify, revoke,

or reissue NPDES permits. Where necessary to incorporate any subsequently promulgated limits on toxic

pollutants, address material changes in a permit

holder’s discharges, or correct technical errors, among

other reasons, permitting authorities may modify a

permit’s terms. See 40 C.F.R. §§ 122.62–122.63. Such

modifications take place outside of the enforcement

context; they are undertaken by permit writers, not

outside litigants, and they provide permittees fair notice and due process.

Importantly for amici, however, EPA’s regulations allow for permit modifications to occur in a way

which ensures that, consistent with this Court’s findings in E. I. du Pont, 430 U.S. at 138 n.28, “[i]n general, permits are not modified to incorporate changes

made in regulations during the term of the permit.”5

49 Fed. Reg. 37,998, 38,045 (Sept. 26, 1984). The regulations “provide some measure of certainty to both

the permittees and the [EPA] during the term of the

permits.” Id.;6 see Gen. Elec. Co. v. EPA, 53 F.3d 1324,

5 As noted above, changes necessary to incorporate limits on toxic

pollutants are a critical exception to this general rule, and they

provide EPA with “backstop” authority that would not be impacted if this Court reverses the Ninth Circuit’s decision.

NPDES permits are limited to five-year terms. 33 U.S.C. §

1342(b)(1)(B); 40 C.F.R. § 122.46. This also helps to ensure that

permits are appropriately updated to reflect new regulations in

a timely manner without undercutting the finality permits are

meant to provide to regulated entities.

6

26

1328–29, 1333–34 (D.C. Cir. 1995) (permit writers

must give permittees fair notice of their compliance

obligations such that permittees are “able to identify,

with ‘ascertainable certainty,’ the standards with

which the agency expects parties to conform[.]”); In re:

Ketchikan Pulp Company, 7 E.A.D. 605, 1998 WL

284964, at *8 (U.S. EPA Environmental Appeals

Board, 1998) (quoting E.I. du Pont, 430 U.S. at 138

n.28 regarding purpose of permit shield).

The Ninth Circuit’s holding that generic water

quality prohibitions are acceptable “backstop” provisions likewise ignores the multiple layers of review

the CWA provides for ensuring NPDES permits contain all necessary requirements before they are issued. EPA and the public have multiple opportunities

during the permitting process to review proposed permits, and EPA can ultimately deny the issuance of

any permit that does not comply with the CWA. See

40 C.F.R. § 123.44.7 Citizen groups may also challenge

an issued permit within 120 days if they do not believe

it includes effluent limitations necessary to ensure

that the discharge does not cause or contribute to a

water quality standard violation. See 33 U.S.C. §

1369(b)(1)(F). The numerous opportunities to reject,

7 Where water quality standards are not being attained, Con-

gress established a detailed process for regulators to designate

waters as “impaired” and set a total maximum daily load on pollutant(s) “at a level necessary to implement the applicable water

quality standards.” 33 U.S.C. § 1313(d)(1)(C). That process addresses all sources of pollution and further confirms that Congress placed the burden on regulators to determine what is

needed to improve water quality. Congress did not intend for individual dischargers to shoulder the burden of ensuring water

quality standards are met.

27

revise, or later update a permit belie the need for any

“backstop” authority.

Under the decision below, permittees lack the finality and certainty that Congress intended to provide through the CWA’s permit shield and the restrictions on judicial review of permits. Instead, generic prohibitions place permit holders in a perpetual

state of having to litigate the question of whether the

requirements in their permit are sufficiently strict—

the exact position this Court determined Congress

sought to avoid with the adoption of 33 U.S.C. §

1342(k). See E. I. du Pont, 430 U.S. at 138 n.28.

III. THE NINTH CIRCUIT’S DECISION CREATES SIGNIFICANT UNCERTAINTY FOR

COMMUNITIES NATIONWIDE.

This Court should reverse the Ninth Circuit because its misreading of the CWA will have significant

consequences for public clean water utilities and the

communities they serve nationwide. These utilities

need predictability and certainty to plan and pay for

the substantial water infrastructure investments necessary to meet the CWA’s stringent requirements and

improve the quality of our nation’s waters. Utilities

already face challenges related to replacing aging

sewer and stormwater infrastructure, increasing system resiliency in the face of climate change, addressing emerging contaminants, and fending off cybersecurity threats. Generic water quality prohibitions

compound these challenges by leaving open the possibility that utilities already complying with the many

effluent limitations in their NPDES permits may

nonetheless be found by a court to be violating the

CWA.

28

As stewards of public funds, municipal clean water agencies should not be put in the position of planning, financing, and implementing major infrastructure upgrades only to be told months or years later

that the goalposts have unexpectedly moved. In its

most recent assessment on national wastewater and

stormwater capital investment needs, EPA estimated

that clean water utilities will require over $630 billion

(in 2022 dollars) in capital investments to meet the

water quality objectives of the CWA between 2022

and 2041. EPA, 2022 Clean Watersheds Needs Survey

Report

to

Congress,

at

7

(Apr.

2024),

https://www.epa.gov/system/files/documents/202405/2022-cwns-report-to-congress.pdf.

Ultimately,

ratepayers must bear these enormous costs. See Rachel Layne, Water costs are rising across the U.S. –

here’s why, CBS News (Aug. 27, 2019),

https://www.cbsnews.com/news/water-bills-risingcost-of-water-creating-big-utility-bills-for-americans/. Distorting the NPDES program to allow the imposition of unanticipated additional costs through

open-ended permitting requirements would cause

these already significant expenses to rise further.

Take the following example from this Court’s own

backyard. In 2019, amicus DC Water began design

work for the Potomac River Tunnel and in 2024 began

mobilization at West Potomac Park. When completed

in 2030, the tunnel will improve water quality and

aesthetics of the Potomac River for the benefit of all.

See DC Water’s Potomac River Tunnel Project, available at https://www.dcwater.com/projects/potomacriver-tunnel-project. This $819 million project, paid

for by DC Water ratepayers, involves the construction

of a 5.5-mile-long tunnel that is 18 feet in finished diameter and buried approximately 100 feet deep, along

29

with related facilities, designed to: (i) reduce the number of combined sewer overflows from 74 events during an average year of rainfall to only four; and (ii)

achieve a 93% reduction of the approximately 1.063

billion gallons of sewer overflows in an average year

of rainfall. Id. Of course, a project of this scale, which

is just part of DC Water’s $2.99 billion Clean Rivers

Project, requires numerous road and sidewalk closures, in this case near the scenic and heavily trafficked tidal basin. See id.

Given the significant public resources needed to

plan and pay for this type of project, as well as the

impacts its implementation will have on local residents—a six-year road closure “near a key commuter

route,” in the case of the D.C. project8—it is paramount that regulators provide a clear understanding

of the goals a utility must achieve so it can make informed decisions and appropriately balance competing resource demands. Generic water quality prohibitions preclude such certainty. Indeed, a municipality

could invest upwards of a billion dollars on new infrastructure to comply with all the specific effluent limits

in its NPDES permit, only to be told in an enforcement action years later that a new regulator or citizen

plaintiff’s group has determined that a larger diameter tunnel is actually what water quality standards

demand. This not only upends Congress’s carefully

8 Jack Moore, This stretch of road near the Lincoln Memorial will

close for 6 years as part of project to keep sewer overflow out of

Potomac

River,

WTOP

News,

June

13,

2024,

https://wtop.com/dc/2024/06/part-of-ohio-drive-near-the-lincolnmemorial-set-to-close-for-the-next-6-years-as-part-of-massivesewer-tunnel-project/.

(continued...)

30

crafted permitting program and threatens the affordable provision of fundamental human health and environmental services, but also subjects public utilities

to disparate, after-the-fact enforcement under the

CWA’s strict liability scheme, 33 U.S.C. §§ 1311(a) &

1342, which is backed by criminal penalties9 and severe civil fines. See id. § 1319(c)-(d); see also 40 C.F.R.

§ 19.4 (EPA may assess civil penalties of up to $66,712

per day for each CWA violation); Hawkes Co., 578 U.S.

at 602 (noting that “consequences to landowners even

for inadvertent [CWA] violations can be crushing”)

(Kennedy, J., concurring).

In effect, any citizen or zealous enforcer can usurp

the role of permit writer at any time during the life of

a permit to the extent they can persuade a court that

some new limitation or action is necessary to achieve

compliance with water quality standards. This is especially troubling in the context of permits issued to

public clean water agencies and municipalities.

Giving citizens the ability to interpret and enforce

generic prohibitions undermines the expertise of permit writers, scientists, and other subject matter experts within EPA and state environmental agencies.

Unlike regulators, “citizen groups largely lack the engineering and systems expertise that needs [to] be

brought to bear in insuring that a remedial action is

appropriate to the nature of the violation and that any

9 The imposition of criminal penalties for violations of generic

prohibitions “gives rise to serious vagueness concerns.” Sackett,

598 U.S. at 680; see also id. (“Due process requires Congress to

define penal statutes with sufficient definiteness that ordinary

people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.”) (internal quotation marks and citations omitted).

31

cost imposed will not outweigh the benefit achieved.”

See Conservation Law Found., Inc. v. Mass. Water

Res. Auth., Civ. A. No. 22-10626, 2023 WL 2072429,

at *4 (D. Mass. Feb. 17, 2023).

That expertise is paramount in the context of municipal permittees, who are both environmental stewards and stewards of public funds, responsible for

providing affordable essential services to communities. Thus, any enforcement action involving municipalities and clean water agencies must consider the

complexity of wastewater and stormwater systems,

the affordability of rates, and the limits of existing

technologies. Third-party groups are ill-suited to assess these issues. They also “lack the information and

ability to foster optimal compliance with a regulatory

scheme as complex and far reaching as the [NPDES

program]. . . . In fact, the NPDES regulatory scheme

encourages citizens to bring inefficient suits.” Harold

J. Krent & Ethan G. Shenkman, Of Citizen Suits and

Citizen Sunstein, 91 Mich. L. Rev. 1793, 1812–13

(1993).

Citizen groups also lack accountability that would

require them to consider and balance the interests of

numerous affected stakeholders, including impacted

communities and individual ratepayers. “A [CWA]

plaintiff pursuing civil penalties acts as a self-appointed mini-EPA[,]” and “once the target is chosen,

the suit goes forward without meaningful public control.” Friends of the Earth, Inc. v. Laidlaw Env’t.

Servs. (TOC), Inc., 528 U.S. 167, 209 (2000) (Scalia,

J., dissenting). In contrast to the EPA Administrator

and state agency heads—who are political officials answerable to the President (or Governors), legislatures,

and the public—citizen groups serve more targeted

32

interests, and those interests may frequently be at

odds with other public concerns. To be sure, citizens

have an important right to enforce water pollution

control requirements, but not to singlehandedly rewrite them as the Ninth Circuit’s decision upholding

such open-ended permitting requirements would allow.

Public clean water utilities provide vital human

health and environmental services to communities

nationwide 24 hours a day, 365 days a year. Amici and

other public utilities throughout the country work diligently to fulfill their regulatory obligations, including those imposed under the CWA. That they be given

clear advance notice of those obligations is not only a

fair expectation, but a requirement the text and history of the CWA show Congress demanded. Amici ask

this Court to reverse the decision below and restore

the critical certainty undermined by it.

CONCLUSION

For the foregoing reasons, this Court should reverse the Ninth Circuit’s decision.

Respectfully submitted,

AMANDA E. ASPATORE

National Association of

Clean Water Agencies

1130 Connecticut Ave.,

NW

Suite 1050

Washington, DC 20036

(202) 833-2672

DAVID Y. CHUNG

Counsel of Record

ELIZABETH B. DAWSON

HENRY W. LEUNG

Crowell & Moring LLP

1001 Pennsylvania Ave.,

NW

Washington, DC 20004

(202) 624-2500

33

dchung@crowell.com

Counsel for Amici Curiae

F. PAUL CALAMITA III

AquaLaw PLC

6 South 5th Street

Richmond, VA 23219

(804) 716-9021

paul@aqualaw.com

HILARY MELTZER

Assistant Corporation

Counsel of the City of New

York

100 Church Street

New York, NY 10007

(212) 356-2070

hmeltzer@law.nyc.gov

Counsel for Association of

Missouri Cleanwater

Agencies, North Carolina

Counsel for City of New

Water Quality Association, York

South Carolina Water

Quality Association, West

Virginia Municipal Water

Quality Association, and

Wet Weather Partnership

MELISSA A. THORME

Downey Brand LLP

621 Capitol Mall, 18th

Floor

Sacramento, CA 95814

(916) 444-1000

mthorme@downeybrand.

com

JAMES J. STEINKRAUSS

Rath, Young and Pignatelli,

PC

One Capital Plaza

Concord, NH 03302

(603) 410-4314

jjs@rathlaw.com

Counsel for City of

Sunnyvale and City of

Mountain View

Counsel for Boston Water

and Sewer Commission

July 26, 2024