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, CALIFORNIA,

PETITIONER,

v.

ENVIRONMENTAL PROTECTION AGENCY.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF AMICI CURIAE NATIONAL

MINING ASSOCIATION, ET AL.,

SUPPORTING PETITIONER

TAWNY BRIDGEFORD

CAITLIN MCHALE

National Mining

Association

101 Constitution Avenue,

NW, Suite 500 East

Washington, DC 20001

Counsel for Amicus

Curiae National Mining

Association

MISHA TSEYTLIN

Counsel of Record

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amici Curiae

(Additional counsel listed on inside cover.)

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus

Curiae the Chamber of

Commerce of the United

States of America

MICHAEL C. FORMICA

NATIONAL PORK

PRODUCERS COUNCIL

122 C Street, NW

Suite 875

Washington, DC 20001

Counsel for Amicus

Curiae National Pork

Producers Council

MICHAEL A. TILGHMAN II

NAM LEGAL CENTER

733 Tenth Street, NW

Suite 700

Washington, DC 20001

Counsel for Amicus Curiae

National Association of

Manufacturers

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

Suite 1000W

600 Maryland Ave. SW

Washington, DC 20024

Counsel for Amicus Curiae

American Farm Bureau

Federation

ELIZABETH MILITO

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th Street, NW

Suite 1001

Washington, DC 20004

Counsel for Amicus Curiae

NFIB Small Business

Legal Center, Inc.

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.

ii

TABLE OF CONTENTS

Page

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

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT ...........................................................7

ARGUMENT .............................................................11

I.

NPDES Permit Conditions That Hold

Permittees Directly Liable For The Quality

Of Receiving Waters Have Devastating

Consequences

For

The

Business

Community And The Economy ......................11

II. Receiving

Water

Prohibitions

Are

Inconsistent With The CWA’s Text And

Design .............................................................22

CONCLUSION ..........................................................26

iii

TABLE OF AUTHORITIES

Cases

Borden Ranch P’ship v. U.S. Army Corps of

Eng’rs,

261 F.3d 810 (9th Cir. 2001)............................... 15

Cal. Sportfishing Prot. All. v. Chico Scrap Metal,

Inc.,

728 F.3d 868 (9th Cir. 2013)............................... 16

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

430 U.S. 112 (1977) ....................................... 14, 21

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

426 U.S. 200 (1976) ................................. 13, 25, 26

Friends of the Earth, Inc. v. Gaston Copper

Recycling Corp.,

629 F.3d 387 (4th Cir. 2011)............................... 16

La. Env’t Action Network v. City of Baton Rouge,

677 F.3d 737 (5th Cir. 2012)............................... 16

League of Wilderness Defs. v. Forsgren,

309 F.3d 1181 (9th Cir. 2002)............................. 20

Loper Bright Enters. v. Raimondo,

144 S. Ct. 2244 (2024) ......................................... 24

Nat. Res. Def. Council, Inc. v. County of Los

Angeles,

725 F.3d 1194 (9th Cir. 2013)............................. 14

iv

Naturaland Tr. v. Dakota Fin. LLC,

41 F.4th 342 (4th Cir. 2022) ............................... 16

Nw. Env’t Advocs. v. City of Portland,

56 F.3d 979 (9th Cir. 1995)................................. 16

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

845 F.3d 133 (4th Cir. 2017)............................... 18

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

Cnty., MD,

523 F.3d 453 (4th Cir. 2008)............................... 16

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

268 F.3d 255 (4th Cir. 2001)................... 11, 13, 18

Puerto Rico Aqueduct & Sewer Auth.,

4 F.4th 63 (1st Cir. 2021).................................... 16

S. River Watershed All., Inc. v. DeKalb County,

69 F.4th 809 (11th Cir. 2023) ............................. 16

Sackett v. EPA,

598 U.S. 651 (2023) ........................8, 15, 16, 19, 22

Sierra Club v. ICG Hazard, LLC,

781 F.3d 281 (6th Cir. 2015)............................... 14

Tex. Indep. Producers & Royalty Owners Ass’n v.

EPA,

435 F.3d 758 (7th Cir. 2006)............................... 13

Statutes And Rules

28 U.S.C. § 2462 ....................................................... 15

33 U.S.C. § 1311 ......................................10, 22, 23, 25

v

33 U.S.C. § 1342 ............................................. 8, 13, 25

33 U.S.C. § 1344 ......................................................... 7

33 U.S.C. § 1365 ....................................................... 16

86 Stat. 844, Pub. L. No. 92-500 .............................. 22

Regulations

40 C.F.R. § 19.4 ........................................................ 15

40 C.F.R. § 122.1 ...................................................... 25

40 C.F.R. § 122.44 ...................................................... 7

45 Fed. Reg. 33,290 (May 19, 1980) .................. 14, 21

Other Authorities

David E. Adelman & Jori Reilly-Diakun,

Environmental Citizen Suits and the

Inequities of Races to the Top, 92 U. Colo. L.

Rev. 377 (2021) ................................................... 20

EPA, Decisions of the Administrator & Decisions

of the General Counsel – National Pollutant

Discharge Elimination System Adjudicatory

Hearing Proceedings Vol. 2 (Jan. 1976 – Dec.

1976) .................................................................... 24

James T. Lang, Citizens’ Environmental

Lawsuits, 47 Tex. Env’t L.J. 17 (2017)......... 16, 19

Oxford English Dictionary Online (2024) ............... 23

vi

U.S. Gov’t Accountability Off., Clean Water Act:

EPA Needs to Better Assess and Disclose

Quality of Compliance and Enforcement Data

(July 2021) .......................................................... 12

W.M. Stewart, et al., The Contribution of

Commercial Fertilizer Nutrients to Food

Production, 97 Agronomy J. 1 (Jan. 2005) ........... 6

INTERESTS OF AMICI CURIAE1

Amici Curiae are leading national trade

associations whose members have long been impacted

by environmental laws and regulations on the

business community, including the mining, energy,

manufacturing, construction, chemical, farming, and

agricultural sectors. Amici have many members who

are subject to National Pollutant Discharge

Elimination System (“NPDES”) permits, many of

which include vague, generic conditions directing

permittees to avoid violating water quality standards,

like those at issue in this case. If EPA and States are

allowed to continue imposing such conditions, Amici’s

members will likely see drastically increased liability

and exposure for alleged permit violations, with little

or no practical way to ensure compliance.

The National Mining Association (“NMA”) is a

national trade association whose 250-plus members

include most of the producers of the Nation’s coal,

metals, agricultural, and industrial minerals; the

manufacturers of mining equipment; and other firms

serving the mining industry.

NMA’s members

produce a range of commodities, all of which are

essential to U.S. economic and national security,

1 Pursuant to this Court’s Rule 37.6, Amici state that no

counsel for any party authored this brief in whole or in part, and

that no entity or person, aside from Amici, their members, or

their counsel, made any monetary contribution intended to fund

the preparation or submission of this brief.

2

supply chain, and energy and infrastructure

priorities. The NMA is the only national trade

association that serves as the voice of the entire U.S.

mining industry and the thousands of American

workers it employs before Congress, the federal

agencies, and the judiciary.

The American Chemistry Council (“ACC”)

represents the leading companies engaged in the

business of chemistry, which is a $639 billion

enterprise and a key element of the Nation’s economy.

ACC participates on behalf of its members in

administrative proceedings and in litigation arising

from those proceedings.

The American Farm Bureau Federation (“AFBF”)

was formed in 1919 and is the largest nonprofit

general farm organization in the United States.

Representing about six million member families in all

50 States and Puerto Rico, AFBF’s members grow and

raise every type of agricultural crop and commodity

produced in the United States. AFBF’s mission is to

protect, promote, and represent the business,

economic, social, and educational interests of

American farmers and ranchers. To that end, AFBF

regularly participates in litigation, including as an

amicus in this and other courts.

The American Forest & Paper Association

(“AF&PA”) serves to advance U.S. paper and wood

products manufacturers through fact-based public

policy and marketplace advocacy. The forest products

3

industry is circular by nature. AF&PA member

companies make essential products from renewable

and recyclable resources, generate renewable

bioenergy, and are committed to continuous

improvement through the industry’s sustainability

initiative—Better Practices, Better Planet 2030:

Sustainable Products for a Sustainable Future. The

forest products industry accounts for approximately

five percent of the total U.S. manufacturing GDP,

manufactures about $350 billion in products

annually, and employs about 925,000 people. The

industry meets a payroll of about $65 billion annually

and is among the top 10 manufacturing sector

employers in 43 States.

The American Gas Association (“AGA”)

represents critical domestic infrastructure—namely,

local natural gas distribution companies that deliver

natural gas to homes and businesses. AGA, founded

in 1918, represents more than 200 local energy

companies that deliver clean natural gas throughout

the United States. There are more than 77 million

residential, commercial, and industrial natural gas

customers in the United States, of which 96 percent—

more than 74 million customers—receive their gas

from AGA members. AGA and its members advocate

for the safe, reliable, and environmentally responsible

delivery of natural gas across the country. Today,

natural gas meets nearly one-third of the United

States’ energy needs.

4

The American Petroleum Institute (“API”) is a

national trade association that represents all

segments of America’s natural gas and oil industry,

which supports nearly 11 million U.S. jobs and is

backed by a growing grassroots movement of millions

of Americans. API’s nearly 600 member companies

produce, process, and distribute the majority of the

Nation’s energy. API was formed in 1919 as a

standards-setting organization and has developed

more than 800 standards to enhance operational and

environmental safety, efficiency, and sustainability.

The Chamber of Commerce of the United States

of America (“Chamber”) is the world’s largest

business federation. It represents approximately

300,000 direct members and indirectly represents the

interests of more than 3 million companies and

professional organizations of every size, in every

industry sector, and from every region of the country.

An important function of the Chamber is to represent

the interests of its members in matters before

Congress, the Executive Branch, and the courts. To

that end, the Chamber regularly files amicus curiae

briefs in cases, like this one, that raise issues of

concern to the Nation’s business community.

The National Association of Manufacturers

(“NAM”) is the largest manufacturing association in

the United States, representing small and large

manufacturers in all 50 States and in every industrial

sector. Manufacturing employs 13 million men and

women, contributes $2.87 trillion to the U.S. economy

5

annually, has the largest economic impact of any

major sector, and accounts for over half of all privatesector research and development in the Nation. NAM

is the voice of the manufacturing community and the

leading advocate for a policy agenda that helps

manufacturers compete in the global economy and

create jobs across the United States.

The National Federation of Independent Business

Small Business Legal Center, Inc. (“NFIB Legal

Center”) is a nonprofit, public interest law firm

established to provide legal resources and be the voice

for small businesses in the Nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business, Inc. (“NFIB”),

which is the Nation’s leading small business

association. NFIB’s mission is to promote and protect

the rights of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

D.C., and all 50 state capitals, the interests of its

members.

The National Pork Producers Council (“NPPC”) is

an association of 43 state pork producer organizations

and the global voice in Washington, D.C. for the

Nation’s nearly 60,000 pork producers.

NPPC

conducts public policy outreach at both the state and

federal level with a goal of meeting growing

worldwide demand for pork while simultaneously

protecting animal welfare and the capital resources of

pork producers and their farms. More broadly, NPPC

6

and its members throughout the United States work

to promote the social, environmental, and economic

sustainability of U.S. pork producers and their

partners. As part of that mission, it regularly

participates as an amicus in court proceedings.

The Southeastern Lumber Manufacturers

Association (the “Association”) is a trade organization

established in 1962 to promote family-owned lumber

businesses.

The Association represents lumber

manufacturers in 17 States, primarily in the South.

With an emphasis on government affairs, marketing,

management, and operational issues, the Association

offers programs to support independent lumber

manufacturers.

The Fertilizer Institute (“TFI”) represents

companies engaged in all aspects of the United States’

fertilizer supply chain. The industry is essential to

ensuring farmers receive the nutrients needed to

enrich soil and grow the crops that feed our Nation

and the world. Fertilizer is critical to feeding a

growing global population, which is expected to

surpass 9.5 billion people by 2050. Half of all grown

food around the world today is made possible through

the use of fertilizer production in the United States

and foreign markets.2 The U.S. fertilizer sector is

comprised of producers, importers, wholesalers, and

W.M. Stewart, et al., The Contribution of Commercial

Fertilizer Nutrients to Food Production, 97 Agronomy J. 1, 1–6

(Jan. 2005).

2

7

retailers. The industry supports 487,000 American

jobs with annual wages in excess of $34 billion.

INTRODUCTION AND

SUMMARY OF ARGUMENT

Congress enacted the Clean Water Act (“CWA”)

in 1972, replacing the Federal Water Pollution

Control Act and overhauling the Nation’s clean water

regulatory regime. Among the CWA’s transformative

measures, Congress created the National Pollutant

Discharge Elimination System (“NPDES”) permit

program, which solved many of the compliance and

enforcement difficulties in the prior regime.3 The

NPDES program is a vital aspect of the CWA, with

over 330,000 facilities nationwide maintaining active

NPDES permits. Under that program, as applicable,

a project owner or operator responsible for a discharge

into navigable waters must apply for a permit either

to the State or to the EPA. The State or EPA, in turn,

establishes the effluent limitations, either numeric or

narrative,4 that permittees must meet to comply with

3 The NPDES program differs from the CWA’s similar-yet-

distinct Section 404 permit program, which deals only with

dredged or fill material into navigable waters of the United

States at specified sites. 33 U.S.C. § 1344.

Neither Petitioner nor Amici object to the inclusion of

appropriate narrative effluent limits in NPDES permits. See

Brief for Petitioner (“Br.”) at 4–5. Narrative limits describe

processes that must be followed (e.g., best management

practices, see 40 C.F.R. § 122.44(k)) or a condition of the

4

8

applicable water quality standards of the waterbody

receiving the discharge, and must specify such

limitations in the text of each permit.

The NPDES program protects the Nation’s

waters, while also offering a key benefit for

permittees: security under the CWA’s permit shield

provision, 33 U.S.C. § 1342(k), for discharges that

comply with permit specifications. That is, if a

permittee complies with the conditions in its NPDES

permit, no regulatory agency or private party can sue

the permittee based upon allegations that its

permitted discharges violate the CWA. This offers

owners and operators the predictability and certainty

necessary to invest in new or expanded facilities and

infrastructure with confidence.

It also enables

permittees to operate in ways that protect them from

the CWA’s “crushing” liability provisions, Sackett v.

EPA, 598 U.S. 651, 660 (2023), which can entail

government enforcement actions, citizen suits,

significant civil penalties, and even criminal liability.

Permit conditions that hold permittees directly

liable for the quality of receiving waters, rather than

the quality of their own discharges into those waters,

undermine the NPDES program and the permit

shield. These generic prohibitions are not tied to any

discharge that must be achieved—for example, prohibiting the

discharge of floating solids or visible foam—and, when

appropriately crafted, provide sufficient specificity for a

permittee to demonstrate compliance.

9

specific effluent limitations on the content of the

permittee’s discharges. Instead, they make the

permittee legally responsible for the overall quality of

receiving water (here, the Pacific Ocean), even though

there may be dozens or even hundreds of other

permitted and unpermitted discharges into the same

waterbody. If the CWA allows such prohibitions,

Amici’s members and other permittees have no way of

knowing in advance whether their discharges will

comply with their NPDES permits, given that the

quality of a waterbody often depends on numerous

variables beyond a permittee’s control. Without any

means for anticipating when a discharge might

violate a water quality standard, the permit shield’s

vital protections would no longer serve their purpose.

Amici represent nearly every business sector

across the U.S. economy, which relies upon the

certainty of the permit shield to satisfy the Nation’s

transportation, infrastructure, manufacturing, and

other needs.

Without the specific permitting

conditions that the CWA promises, it will be

impossible for many permittees to protect themselves

from unanticipated CWA liability. When EPA and

States condition compliance on the overall quality of

receiving waters, Amici’s members and other

permittees are left exposed to the potentially

devastating and unnecessarily costly consequences of

a government enforcement action or citizen suit, and

all of the penalties associated with such actions. By

contrast, when the permitting authority devises

specific numeric or narrative discharge limits

10

specifying the acceptable quality of the discharge

itself, as the CWA requires, permittees have fair

notice of their discharge obligations and so may take

advantage of the critical permit shield.

Nothing in the CWA’s text, context, or design

permits EPA or States to impose generic prohibitions

conditioning CWA compliance on the overall quality

of the receiving water. Under Section 301(b)(1)(C),

EPA or States must calculate specific limitations to

govern discharges from a point source. Permit

conditions that broadly require a permittee to avoid

(somehow) violating water quality standards are

inconsistent with the statutory text and structure.

Nor can such an interpretation be reconciled with the

pre-enactment statutory context. With the CWA,

Congress did away with the Federal Water Pollution

Control Act’s ineffective standards for assessing

whether a discharge causes or contributes to a

violation of water quality standards. If this Court

were to allow EPA and States to condition NPDES

permit compliance on receiving water quality,

Congress’ focus on regulating discharges, and the

CWA’s explicit permit shield, would be gutted.

Amici’s members and other permittees would, in turn,

lose the ability to structure their operations in

accordance with their NPDES permits, and would be

exposed to potentially devastating liability.

This Court should reverse the Ninth Circuit and

end the harmful practice of EPA and States placing

receiving water prohibitions in NPDES permits.

11

ARGUMENT

I.

NPDES Permit Conditions That Hold

Permittees Directly Liable For The Quality

Of Receiving Waters Have Devastating

Consequences For The Business Community

And The Economy

The CWA fundamentally changed the Nation’s

water-quality regulation, protecting waterways while

providing regulated entities the security and

certainty of knowing how to comply with their

discharge obligations and avoid liability.

By

requiring regulators to impose specific effluent

limitations and shielding permittees from liability

after compliance with those limitations, the CWA

promotes infrastructure construction and investment

and allows Amici’s members to conduct operations

vital to the national economy. In contrast, generic

prohibitions against violating water quality

standards fail to tell regulated entities how to comply,

and thus expose permitholders to widespread

regulatory uncertainty and litigation risk. This

subverts a key purpose of the NPDES permitting

program and the permit shield: to provide certainty to

regulated entities that comply with their permits.

A. The CWA’s scheme of regulating discharges

through specific effluent limitations ensures that

permitholders can know what they must do to comply

with their NPDES permits. When paired with the

CWA’s “permit shield,” see Piney Run Pres. Ass’n v.

12

Cnty. Comm’rs, 268 F.3d 255, 266 (4th Cir. 2001), this

statutory regime provides critical predictability,

offering permittees the security of knowing that their

compliance efforts will protect them from the CWA’s

sweeping liability provisions.

The CWA’s NPDES permitting provisions enable

permittees to know their allowable discharges and to

structure their operations accordingly. When an

operator plans to discharge a pollutant, it identifies

that pollutant in its NPDES permit application. The

State or EPA then will consider the pollutant and any

data on discharges to establish an effluent limitation

based on (a) the operator’s likely discharge, and

(b) either the application of a technology-based

effluent limit or the development of a water qualitybased limit reflecting the level of pollutant that the

receiving water can assimilate while achieving waterquality standards. An NPDES permit thus gives a

permittee the necessary tools to design and monitor

its operational and treatment systems: if a permittee

knows the specific effluent limitations that restrict

the nature or contents of discharges from its point

sources, then it may design, construct, operate, and

maintain its facilities, and restrict the nature or

contents of discharges from its point sources, to

ensure CWA compliance.

Today, NPDES permits are ubiquitous. More

than 330,000 permittees maintained active NPDES

permits in fiscal year 2020. U.S. Gov’t Accountability

Off., Clean Water Act: EPA Needs to Better Assess and

13

Disclose Quality of Compliance and Enforcement

Data 7 (July 2021).5 This includes permittees covered

by “general permits,” id., issued by States or EPA for

all regulated entities engaging in a particular

activity, Tex. Indep. Producers & Royalty Owners

Ass’n v. EPA, 435 F.3d 758, 761 (7th Cir. 2006)

(citation omitted), as well as those covered by

individual permits governing discharges from a single

facility.

Permits that provide specific effluent

limitations offer predictability for regulated entities,

allowing Amici’s members and other permittees to

best meet the Nation’s transportation, infrastructure,

manufacturing, construction, agricultural production,

and other critical needs.

Permittees, including Amici’s members, which

represent virtually every part of the U.S. economy,

depend upon specific effluent limitations and the

permit shield to provide a clear and predictable

regulatory framework for lawfully operating their

businesses. Under the CWA, “[c]ompliance with a

permit issued” pursuant to Section 1342 “shall be

deemed compliance” with various substantive

provisions of the CWA. 33 U.S.C. § 1342(k). “[I]f a

permit holder discharges pollutants precisely in

accordance with the terms of its permit,” that permit

will generally “‘shield’ its holder from CWA liability.”

Piney Run Pres. Ass’n, 268 F.3d at 266; see also EPA

v. Cal. ex rel. State Water Res. Control Bd., 426 U.S.

200, 205 (1976). The permit shield’s “purpose” is “to

5 Available at https://www.gao.gov/assets/gao-21-290.pdf.

14

insulate permit holders from changes in various

regulations during the period of a permit and to

relieve 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). As a result, the

permit shield “affords consistent treatment to NPDES

permit holders nationwide,” Sierra Club v. ICG

Hazard, LLC, 781 F.3d 281, 291 (6th Cir. 2015), and

provides a “major benefit to a permittee because it

protects the permittee from any obligation to meet

more stringent limitations promulgated by the EPA

unless and until the permit expires,” Nat. Res. Def.

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

1204 (9th Cir. 2013) (citations omitted). Under this

regulatory framework, NPDES permit holders need

only look to their permits to know various of their

compliance obligations, and so are afforded certainty

and “finality.” E.I. du Pont de Nemours, 430 U.S. at

138 n.28.

EPA itself has long recognized this important

aspect of the NPDES permit program, including the

permit shield. As the agency has explained, the

purpose of an NPDES permit “is to prescribe with

specificity the requirements that a facility will have

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

with knowledge of what rules apply,” while allowing

“the permitting authority [to] redirect its standardsetting efforts elsewhere.”

45 Fed. Reg.

33,290, 33,312 (May 19, 1980). “[A] permittee may

15

rely on its [ ] permit document to know the extent of

its enforceable duties.” Id.

If a permittee fails to comply with the conditions

in its NPDES permit, and thus loses the benefit of the

permit shield, the consequences can be “crushing.”

App.65 (Collins, J., dissenting) (quoting Sackett, 598

U.S. at 660). Under the CWA, an operator may face

criminal liability for the mere negligent discharge of

pollutants. Sackett, 598 U.S. at 660 (citing 33 U.S.C.

§ 1319(c)). A criminal prosecution can result in

“severe criminal penalties including imprisonment.”

Id.

With respect to civil liability, “expansive

interpretations of the term ‘violation,’” plus a lengthy

five-year statute of limitations period, further

increase operators’ potential exposure. Id. Indeed,

these civil penalties “can be nearly as crushing as

their criminal counterparts.” Id. at 660–61 (citing 28

U.S.C. § 2462; Borden Ranch P’ship v. U.S. Army

Corps of Eng’rs, 261 F.3d 810, 813, 818 (9th Cir.

2001)). Under Section 1319, a permittee may face

civil penalties of over $66,000 each day it remains in

violation. 33 U.S.C. § 1319(b), (d); 40 C.F.R. § 19.4.

To be clear, the statutory maximum penalty is over

$66,000 per violation per day, meaning a permittee

with multiple alleged violations could accrue six- or

seven-figures of penalties per day. The permittee may

also be subject to an injunction which, depending on

the nature of the injunctive relief, could come at

significant cost. 33 U.S.C. § 1319(b), (d); 40 C.F.R.

§ 19.4. With its “capacious definition of ‘pollutant,’ its

16

low mens rea, and its severe penalties,” “[t]he CWA is

a potent weapon.” Sackett, 598 U.S. at 660–61.

The CWA also authorizes “citizen suits” that

empower “any citizen” to “commence a civil action on

his own behalf” “against any person” for violation of

CWA effluent standards or limitations placed on

permits. 33 U.S.C. § 1365(a). Citizens, like States

and EPA, may sue operators and seek the “crushing”

civil penalties assessed on a per-day basis. Sackett,

598 U.S. at 660. They may also pursue recovery of

litigation costs, including attorney and expert witness

fees, 33 U.S.C. § 1365(d), which incentivize such

lawsuits, see James T. Lang, Citizens’ Environmental

Lawsuits, 47 Tex. Env’t L.J. 17, 22 (2017). These

citizen suits are now commonplace and require a

permittee to defend itself in court for potential permit

violations even if regulators do not decide to pursue

an enforcement action.6 As a result, permittees face

ever-increasing exposure for discharges.

6 See, e.g., S. River Watershed All., Inc. v. DeKalb County,

69 F.4th 809 (11th Cir. 2023); Naturaland Tr. v. Dakota Fin.

LLC, 41 F.4th 342 (4th Cir. 2022); Cebollero-Bertran v. Puerto

Rico Aqueduct & Sewer Auth., 4 F.4th 63 (1st Cir. 2021); Cal.

Sportfishing Prot. All. v. Chico Scrap Metal, Inc., 728 F.3d 868

(9th Cir. 2013); La. Env’t Action Network v. City of Baton Rouge,

677 F.3d 737 (5th Cir. 2012); Friends of the Earth, Inc. v. Gaston

Copper Recycling Corp., 629 F.3d 387 (4th Cir. 2011); Piney Run

Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty., MD, 523 F.3d 453

(4th Cir. 2008); Nw. Env’t Advocs. v. City of Portland, 56 F.3d

979 (9th Cir. 1995).

17

B. NPDES permits that condition CWA

compliance on the quality of a receiving water

effectively nullify the permit shield, exposing

regulated entities to government enforcement actions

and citizen suits, potentially significant civil

penalties, and even criminal liability. If EPA and

States are allowed to use such conditions, the

consequences for permittees could be devastating.

The increasingly “frequent[ ]” use of permit

conditions that measure compliance on whether

receiving waters meet water quality standards,

App.34, deprives permittees of the recognized benefits

of obtaining an NPDES permit. Instead of measuring

CWA compliance based on whether a permittee’s

discharges meet effluent limitations, receiving water

prohibitions determine a permittee’s compliance

based upon whether a waterbody ultimately meets

water quality standards. But whether a receiving

water meets water quality standards depends upon

more than just the permittee’s specific discharges.

Meeting water quality standards depends upon all

discharges into the waterway, direct and indirect,

permitted and unpermitted. Any amount of discharge

of certain pollutants could “contribute” to a violation

of water quality standards, depending on the

pollution levels of the receiving water. App.65

(Collins, J., dissenting). And any discharge into a

receiving water that is already not meeting its water

quality standards would raise the prospect of CWA

liability, despite a permittee’s having obtained and

otherwise complied with an NPDES permit. When

18

regulators condition a permittee’s compliance on the

quality of receiving waters, the permittee has no

reliable means of structuring its operations to avoid

CWA liability, rendering the CWA’s permit shield

meaningless in many instances.

Complying with such receiving water conditions

is virtually impossible. A permittee may not know

whether a discharge violates its NPDES permit until

after the discharge is made, the permittee is sued, and

a court determines the precise level of discharge that

may contribute to a violation of a water quality

standard in the receiving water. See, e.g., Ohio Valley

Env’t Coal. v. Fola Coal Co., 845 F.3d 133, 136–38 (4th

Cir. 2017). Indeed, even if a permittee were to develop

its own assessment of the quality of its effluent

needed to assure that water quality standards would

not be violated, there is no guarantee that its state or

federal regulator would agree that such limits are

proper, appropriately protective of water quality, or

lawful.

Without specific effluent limitations

developed by a regulator and included in an NPDES

permit, a permittee cannot determine whether its

discharges are “precisely in accordance with” the

permit’s terms. Piney Run, 268 F.3d at 266.

Permit conditions that tie a permittee’s liability

to the quality of the receiving water rather than

effluent limitations dissuade owners and operators

from investing in infrastructure, because such

conditions create a substantial risk that these

investments will be undercut by CWA litigation. To

19

the extent that an operator is applying for an NPDES

permit for new construction, the permit conditions

and effluent limitations will dictate how the

permittee designs its operational and treatment

systems to ensure its facility complies with the CWA.

A permittee may even change its raw material inputs

and processing technology to limit the presence of

certain expensive-to-treat pollutants that may be

strictly controlled by an NPDES permit. These design

decisions are expensive: permittees can spend

millions of dollars designing and building wastewater

treatment, storage, and management systems in

reliance on and in conformance with their NPDES

permits. Receiving water prohibitions undermine

those investments, leaving permittees vulnerable to

the “crushing consequences” of an enforcement action

or other litigation notwithstanding their best efforts

to comply.

See App.65 (Collins, J., dissenting)

(quoting Sackett, 598 at 660).

The costs for permittees are also “drive[n] up” by

the “legal and scientific complexity inherent” in CWA

litigation—with costs especially pronounced in cases

involving receiving water prohibitions. See Lang,

supra, at 22–23. Parties must often use consultants,

testifying experts, and laboratory testing, in addition

to the costs of counsel and other traditional litigation

costs. Id.; see also Br.49–50 (citing cases). These costs

climb even higher in cases where a plaintiff claims a

violation of ultimate water quality standards, which

raise the significantly more complex question

whether a discharge is contributing to a violation of

20

water quality standards in, for instance, the Pacific

Ocean. Permittees must pay their own litigation costs

to resolve these citizen suits and, if found liable, may

incur crippling civil penalties, injunctive terms that

impose additional costs, and attorneys’ fees of the

prevailing party. See David E. Adelman & Jori ReillyDiakun, Environmental Citizen Suits and the

Inequities of Races to the Top, 92 U. Colo. L. Rev. 377,

424 (2021).

Generic prohibitions that tell a permittee not to

avoid discharges that exceed applicable water quality

standards pose other compliance problems for

permittees. There are often multiple discharges into

a single waterway, some of which are regulated via

the CWA and the NPDES permitting program, and

others of which (such as some stormwater discharges

and non-point runoff) are unregulated and

unpermitted. See League of Wilderness Defs. v.

Forsgren, 309 F.3d 1181, 1184 (9th Cir. 2002)

(“[n]onpoint source pollution [such as tire residue left

on roadways, etc.] is the largest source of water

pollution in the United States”). In the case of a

waterway like the Pacific Ocean, there could be

hundreds of permitted and unpermitted discharges.

If a regulator or citizen initiates an enforcement

action or citizen suit against a single discharger into

a waterbody that receives multiple discharges from

multiple sources (in many cases, many sources) and

the plaintiff proves that water quality standards are

not met, then the permittee will bear the burden of

proving a negative: that the permittee’s discharge did

21

not contribute to the impairment. That would be

practically impossible to do without surveying the

entire field of discharges—direct and indirect,

permitted and unpermitted—into the waterbody, or

even the entire watershed.

Petitioner’s situation is emblematic of the

devastating consequences that Amici’s members

could incur if EPA and States can impose permit

conditions that render permittees responsible for the

overall quality of receiving waters. Petitioner has no

way of translating the generic prohibitions in its

NPDES permit into numeric discharge limits or

definitive actions, requirements, or practices that

Petitioner may reference to “know the extent of its

enforceable duties.” 45 Fed. Reg. at 33,312. That

uncertainty has left Petitioner exposed to the CWA’s

sweeping liability provisions. Indeed, EPA recently

filed a lawsuit against Petitioner alleging that it

failed to comply with a generic prohibition in a

separate NPDES permit which, like the generic

prohibition here, ties compliance to receiving water

quality rather than specific effluent limitations.

Br.50–52. Nor does Petitioner have any idea what it

could do—short of ceasing its critical water-treatment

operations—to avoid enforcement actions moving

forward. Br.51–52. Like the permit at issue in this

recent litigation, Petitioner’s permit here does not

offer any “finality,” E.I. du Pont de Nemours, 430 U.S.

at 138 n.28, and instead exposes Petitioner to

substantial liability and “‘crushing consequences’ . . .

22

‘even for inadvertent violations.’” App.65 (Collins, J.,

dissenting) (quoting Sackett, 598 U.S. at 660).

II. Receiving

Water

Prohibitions

Are

Inconsistent With The CWA’s Text And

Design

The CWA’s plain text and structure make clear

that an NPDES permit must include specific effluent

limitations and may not condition compliance on the

quality of the receiving water. Section 301—titled

“Effluent limitations,” 86 Stat. 844, Pub. L. No. 92500, § 301—refers to “effluent limitations.” 33 U.S.C.

§ 1311(b)(1)(A), (B). And while Section 301(b)(1)(C)

allows regulators to impose “any more stringent

limitation,” id. § 1311(b)(1)(C), it is plain from the

statutory context that Congress used “limitation”

here as shorthand for “effluent limitation,” see Br.25–

26. Indeed, other provisions of Section 301 confirm

that Congress intended the terms “effluent

limitation” and “limitation” to be interchangeable in

this context.

As Petitioner explains, several

provisions of Section 301 use the term “effluent

limitations” only to then employ the shorthand

“limitations.”

Br.27 (citing, e.g., 33 U.S.C.

§ 1311(b)(2)(C)–(D), (F), 3(A)–(B), (m)(1)–(2), (n)(7)).

Permit conditions that allow for an ex post

determination of a permittee’s discharge obligations

based on receiving water quality do not fall within

Section 301(b)(1)(C)’s scope. As an initial matter,

Section 301(b)(1)(C) envisions a “more stringent

23

limitation” than the effluent limitations referenced in

Sections 301(b)(1)(A) and (B).

33 U.S.C.

§ 1311(b)(1)(C) (emphasis added).

A generic

prohibition requiring a permittee not to cause or

contribute to a violation of water quality standards in

any receiving water may or may not entail a “more

stringent” limitation than the technology-based

effluent limitations set forth in Sections 301(b)(1)(A)

and (B). A permittee may be able to discharge in

greater amounts than permitted by its technologybased effluent limitations without the receiving water

violating water quality standards, depending on the

receiving water’s conditions. See Br.28. Relatedly,

Section 301(b)(1)(C) refers to limitations “necessary to

meet water quality standards” or “to implement any

applicable water quality standard.”

33 U.S.C.

§ 1311(b)(1)(C) (emphases added).

Given their

ordinary definitions, to “meet” means to “agree,

conform, satisfy,” Meet, Oxford English Dictionary

Online (2024),7 and to “implement” means to

“complete, perform, carry into effect” or to “fulfil,”

Implement, Oxford English Dictionary Online (2024).8

These terms contemplate a precise standard that a

permittee may “satisfy,” Meet, supra, or “fulfil,”

Implement, supra—not a vague, amorphous standard

7 Available at https://www.oed.com/dictionary/meet_v?tab=

meaning_and_use#37583173 (subscription required).

Available at https://www.oed.com/dictionary/implement

_v?tab=meaning_and_use#865175 (subscription required).

8

24

tied to the receiving body’s water quality, which the

permittee has only a limited ability to control.

This is how EPA interpreted Section 301(b)(1)

shortly after Congress enacted the CWA, explaining

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 ‘establishes’ effluent limitations.”

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)).

The

agency

correctly

understood

that

Section 301(b)(1)(C) refers to specific effluent

limitations, rather than some general prohibition

against violating water quality standards. See Loper

Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2258

(2024) (“the longstanding practice of the

government—like any other interpretive aid—can

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

(alteration in original and citation omitted)). This is,

moreover, the only interpretation that gives the term

“limitation”

a

consistent

meaning

through

Section 301. See Br.27.

The CWA’s core structure and design—including

the critical differences between the CWA and its

problematic

predecessor

legislation—similarly

demonstrate that the statute does not tolerate generic

prohibitions that condition compliance on the

25

receiving water’s overall quality. The now-repealed

Federal Water Pollution Control Act—the CWA’s

predecessor—required regulatory agencies to focus on

managing polluted waters, rather than preventing

pollution in the first instance. See EPA v. Cal. ex rel.

State Water Res. Control Bd., 426 U.S. 200, 204

(1976). Regulators thus routinely found themselves

“work[ing] backward from an overpolluted body of

water to determine which point sources [were]

responsible and which must be abated.” Id. But

under the CWA’s permit-based system, regulators

now must focus on limiting the level of effluent that

may be discharged from a point source. 33 U.S.C.

§§ 1311(a)–(b), 1342(a); 40 C.F.R. § 122.1(b)(1).

Indeed, the statutory context makes clear that

“effluent limitations” are distinct from “water quality

standards.” Effluent limitations are the specific

limits and/or tools necessary to ensure compliance

with water quality standards: an NPDES permit

must ensure that the discharge of a pollutant satisfies

water quality standards, 33 U.S.C. §§ 1342(a), 1343,

and sufficiently describe any “limitation” that is

“required to implement any applicable water quality

standard established pursuant to this chapter,” id.

§ 1311(b)(1)C).

The receiving water prohibitions at issue here—

which condition compliance on receiving water

quality, rather than effluent limitations—violate the

CWA’s mandatory framework. By imposing upon

Petitioner conditions requiring it to prevent the

receiving waters from exceeding water quality

26

standards, EPA forced Petitioner to “work

backward[s]” from acceptable pollution levels to

Petitioner’s own discharges, rather than “defin[ing]”

permissible discharge limits and “facilitat[ing]” CWA

compliance. Cal. ex rel. State Water Res. Control Bd.,

426 U.S. at 204, 205. The agency’s permit tied

Petitioner’s CWA compliance to the ultimate water

quality standards, not to any specific effluent

limitation or demonstrable best management

practice. App.31–36. Under the permit’s generic

prohibitions, any amount of discharge into a receiving

water “taken together with any other sources of

pollution” could cause or contribute to that water

violating applicable standards.

See App.64–65

(Collins, J., dissenting). Such prohibitions run afoul

of the CWA’s statutory requirement that States and

EPA issue NPDES permits that ensure permittees

can comply with effluent limitations to demonstrate

that they are not violating water quality standards.

CONCLUSION

This Court should reverse the judgment below.

27

Respectfully submitted,

TAWNY BRIDGEFORD

CAITLIN MCHALE

NATIONAL MINING

ASSOCIATION

101 Constitution Avenue,

NW, Suite 500 East

Washington, DC 20001

Counsel for Amicus

Curiae National Mining

Association

MISHA TSEYTLIN

Counsel of Record

TROUTMAN PEPPER

HAMILTON SANDERS LLP

227 W. Monroe St.,

Suite 3900

Chicago, IL 60606

(608) 999-1240

misha.tseytlin@

troutman.com

Counsel for Amici Curiae

ANDREW R. VARCOE

STEPHANIE A. MALONEY

U.S. CHAMBER

LITIGATION CENTER

1615 H Street, NW

Washington, DC 20062

Counsel for Amicus

Curiae the Chamber of

Commerce of the United

States of America

MICHAEL C. FORMICA

NATIONAL PORK

PRODUCERS COUNCIL

122 C Street, NW

Suite 875

Washington, DC 20001

MICHAEL A. TILGHMAN II

NAM LEGAL CENTER

733 Tenth Street, NW

Suite 700

Washington, DC 20001

Counsel for Amicus

Curiae National

Association of

Manufacturers

ELLEN STEEN

TRAVIS CUSHMAN

AMERICAN FARM BUREAU

FEDERATION

Suite 1000W

600 Maryland Ave. SW

Washington, DC 20024

28

Counsel for Amicus

Curiae National Pork

Producers Council

July 2024

Counsel for Amicus

Curiae American Farm

Bureau Federation

ELIZABETH MILITO

ROB SMITH

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th Street, NW

Suite 1001

Washington, DC 20004

Counsel for Amicus

Curiae NFIB Small

Business Legal Center,

Inc.