Amicus Curiae Brief — City and County of San Francisco, California, Petitioner v. Environmental Protection Agency
Supreme Court briefJul 26, 2024
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NO. 23-753
IN THE
Supreme Court of the United States
CITY AND COUNTY OF SAN FRANCISCO, CALIFORNIA,
PETITIONER,
v.
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENT.
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF OF AMICUS CURIAE
HAYDEN AREA REGIONAL SEWER BOARD,
SUPPORTING PETITIONER
_______________________
Benjamin Allen
Preston N. Carter
SILVER VALLEY LAW
Counsel of Record
P.O. Box 633
Morgan D. Goodin
GIVENS PURSLEY LLP
Osburn, ID 83849
(208) 752-1106
601 W. Bannock Street
ballen@
Boise, ID 83702
silvervalleylaw.com
(208) 388-1200
prestoncarter@
givenspursley.com
Attorneys for amicus curiae
i
TABLE OF CONTENTS
TABLE OF CONTENTS ........................................... i
TABLE OF AUTHORITIES ................................... iii
INTEREST OF AMICUS CURIAE ......................... 1
SUMMARY OF THE ARGUMENT ......................... 3
ARGUMENT ............................................................ 6
I.
Wholesale incorporation of waterquality standards occurs in many
permits, including for small
dischargers with limited resources
like HARSB.................................................... 6
II.
Wholesale adoption of water-quality
standards into individual permits
imposes the risk of liability with no
attendant benefit to water quality. ............ 13
III.
Wholesale incorporation of waterquality criteria into individual
permits is inconsistent with the text
and structure of the Clean Water
Act. ............................................................... 17
A.
Wholesale incorporation of
water-quality standards into
an individual permit does not
create an “effluent limitation”
as defined in the Act and
obliterates the statutory
distinction between “effluent
limitations” and “water quality
standards.” ........................................ 17
ii
B.
Wholesale incorporation of
water-quality standards into
permits is inconsistent with
the structure of the Act. ................... 20
CONCLUSION ....................................................... 24
iii
TABLE OF AUTHORITIES
Cases
Sackett v. EPA,
598 U.S. 651 (2023)...................................... 13, 22
Statutes
33 U.S.C. § 1311 ....................................................... 18
33 U.S.C. § 1311(b)(1)(C) ........................... 4, 5, 18, 19
33 U.S.C. § 1312 ....................................................... 18
33 U.S.C. § 1312(a)................................................... 18
33 U.S.C. § 1313(c)(2)(A) ................................ 4, 12, 17
33 U.S.C. § 1316 ....................................................... 18
33 U.S.C. § 1317 ....................................................... 18
33 U.S.C. § 1322(p)................................................... 18
33 U.S.C. § 1341 ....................................................... 18
33 U.S.C. § 1342 ....................................................... 18
33 U.S.C. § 1342(a)(1) .............................................. 23
33 U.S.C. § 1342(k) ............................................ 13, 22
33 U.S.C. § 1345(d)................................................... 18
33 U.S.C. § 1362 ....................................................... 19
33 U.S.C. § 1362(11) ..............................4, 5, 17, 20, 23
33 U.S.C. § 1365 ....................................................... 22
33 U.S.C. § 1365(a)............................................. 18, 19
33 U.S.C. § 1365(a)(1) ........................................ 18, 22
33 U.S.C. § 1365(f) ................................................... 18
iv
Regulatory Authorities
40 C.F.R. § 122.44(a)(1) ........................................... 21
40 C.F.R. § 122.44(d)(1)(i) ........................................ 21
40 C.F.R. § 122.44(d)(1)(vii)(A) ................................ 21
40 C.F.R. § 124.10 .................................................... 21
40 C.F.R. § 124.11 .................................................... 21
40 C.F.R. § 124.17 .................................................... 21
40 C.F.R. § 124.59 .................................................... 21
40 C.F.R. § 124.6(a) .................................................. 20
40 C.F.R. § 124.6(d) .................................................. 21
40 C.F.R. § 124.6(e) .................................................. 21
40 C.F.R. § 131.3(i) ............................................... 4, 17
IDAHO ADMIN. CODE r. 58.01.02.200 .........8, 12, 14, 19
IDAHO ADMIN. CODE r. 58.01.02.200.01 ........... 3, 8, 11
IDAHO ADMIN. CODE r. 58.01.02.200.01–.07 .............. 9
IDAHO ADMIN. CODE r. 58.01.02.200.05 ............... 9, 12
IDAHO ADMIN. CODE r. 58.01.02.200.06 ............... 9, 11
IDAHO ADMIN. CODE r. 58.01.02.200.07 ......... 9, 11, 12
Other Authorities
EPA Consolidated Permit Regulations, 45
Fed. Reg. 33 (May 19, 1980) .............................. 22
EPA, Action Memorandum for the Bunker
Hill Groundwater Cut-off Wall and I90 Subsidence, Kellogg, ID, (Mar. 18,
2019) ................................................................... 10
EPA, Bunker Hill Mining & Metallurgical
Complex: Cleanup Activities (July 17,
2024) ................................................................... 10
v
EPA, Bunker Hill Mining & Metallurgical
Complex: Contaminants of Concern ................. 10
EPA, Fifth Five-Year Review Report for
the Bunker Hill Mining &
Metallurgical Complex Superfund
Facility (Sept. 30, 2021)..................................... 10
EPA, National Pollutant Discharge
Elimination System Discharge Permit
No. ID0026590 (Dec. 1, 2014) .............................. 8
Hayden Area Reg’l Sewer Bd. v. Idaho
Dep’t of Env’t Quality,
Agency Case No. 0125-24-01 ........................... 2, 7
Hayden Area Reg’l Sewer Bd., Official
Minutes (Sept. 21, 2023)...................................... 6
Idaho Dep't of Env't Quality, Fact Sheet,
Idaho Pollutant Discharge Elimination
System Discharge Permit No. ID
0026590 (June 1, 2024) .........6, 7, 8, 10, 12, 13, 19
Idaho Dep't of Env't Quality, Idaho
Pollutant Discharge Elimination
System Discharge Permit No.
ID0026590 (Apr. 29, 2024) ...6, 7, 8, 12, 13, 14, 19
1
INTEREST OF AMICUS CURIAE
Amicus Hayden Area Regional Sewer Board
(HARSB) is a rural sewer district that serves about
16,000 residents in and around the municipality of
Hayden, Idaho. 1 HARSB collects and treats
wastewater from these residents, then discharges the
treated wastewater to the Spokane River under a
Clean Water Act permit issued by the Idaho
Department of Environmental Quality (IDEQ).
HARSB’s permit directs it to “comply with” certain
Idaho water-quality standards. These water-quality
standards relate to the condition of the receiving
water, rather than to HARSB’s discharge, and are
vague, prescribing (for example) that surface waters
of the state be free from hazardous materials “in
concentrations found to be of public health
significance.”
Like San Francisco’s permit, this condition in
HARSB’s permit purports to hold HARSB responsible
for the condition of the receiving waters, which
HARSB does not (and cannot) control. And the
prescribed condition of those receiving waters is
vague as applied to HARSB’s discharge.
1 No party or counsel for a party wrote any part of this brief. No
person other than amicus and its counsel made any financial
contribution to the preparation of this brief.
2
HARSB administratively appealed this condition
of its permit, among others. That appeal is pending. 2
The Court’s resolution of the question presented in
this appeal is likely to govern the outcome of HARSB’s
ongoing administrative appeal of this portion of its
permit. HARSB has an acute interest in the outcome
of this case.
Hayden Area Reg’l Sewer Bd. v. Idaho Dep’t of Env’t Quality,
Agency Case No. 0125-24-01, https://www.deq.idaho.gov/publicinformation/laws-guidance-and-orders/petitions-for-review-andprecedential-orders/. After certiorari was granted in this case,
HARSB filed an amended petition that is not yet reflected on the
publicly available docket.
2
3
SUMMARY OF THE ARGUMENT
HARSB’s Clean Water Act permit contains
effluent limitations that regulate the type and
quantities of constituents that HARSB may
discharge. These effluent limitations regulate
HARSB’s discharge; were derived using dischargeand discharger-specific data; are subject to
reasonable timelines for implementation; and are
calculated to ensure compliance with Idaho’s waterquality standards.
HARSB’s ratepayers—all 16,194 of them—have
funded over $38 million in improvements to its
wastewater facility to meet these effluent limitations.
HARSB’s investments, in turn, improve water
quality.
HARSB’s permit also directs it to comply with
Idaho’s narrative water-quality criteria. These
criteria, which are part of Idaho’s water-quality
standards, prescribe the condition of the surface
water rather than of HARSB’s discharge. HARSB
does not, and cannot, control the condition of the
surface water of the state. And the prescribed
conditions are vague as applied to HARSB’s
discharge, requiring (for example) that surface waters
of the state be free from “hazardous materials in
concentrations found to be of public health
significance.” IDAHO ADMIN. CODE r. 58.01.02.200.01.
HARSB cannot plan, fund, and implement
improvements to its wastewater-treatment facility to
ensure compliance with this provision of its permit.
As a result, HARSB is exposed to the risk of liability
4
for violating this provision of its permit, but that risk
of liability does not improve water quality.
Incorporating water-quality standards, wholesale,
into individual discharge permits is inconsistent with
the text and structure of the Act.
The Clean Water Act distinguishes effluent
limitations from water-quality standards. “Effluent
limitation[s],” as defined in the Act, are “restriction[s]
. . . on quantities, rates, and concentrations of
chemical, physical, biological, and other constituents
which are discharged from point sources into
navigable waters.” 33 U.S.C. § 1362(11). Effluent
limitations in a discharger’s permit must be
calculated to “meet water quality standards.” 33
U.S.C. § 1311(b)(1)(C).
“Water quality standards” are standards,
consisting of designated uses and criteria to meet
those uses, established by a state and approved by
EPA that prescribe the condition of navigable waters
within the state. See 33 U.S.C. § 1313(c)(2)(A); 40
C.F.R. § 131.3(i).
This textual distinction is confirmed by the Act’s
structure. Discharge permits and the effluent
limitations within them are developed through an
extensive process that includes public notice, public
comment, and the opportunity for administrative
appeal and judicial review. When this process is
complete, the terms of the permit are binding on the
discharger and on the public.
5
This process is undermined if permitting
authorities merely direct permittees to comply with
water-quality standards. Congress meant what it said
in defining “effluent limitations”—they really are
restrictions on constituents from point sources that
are calculated to meet, but do not merely parrot,
water-quality standards. See 33 U.S.C. § 1362(11); id.
§ 1311(b)(1)(C). And there would be no need for this
extensive, discharge-focused, up-front process if the
agency could merely direct dischargers to comply with
water-quality standards.
Wholesale
incorporation
of
water-quality
standards into individual permits, as the EPA has
done with San Francisco and IDEQ has done with
HARSB, is inconsistent with the Act’s text and
structure and imposes the risk of crushing liability on
dischargers for circumstances outside their control.
Yet the Ninth Circuit’s decision empowers permitting
authorities to do just that. The decision below should
be reversed.
6
ARGUMENT
I.
Wholesale incorporation of water-quality
standards occurs in many permits, including
for small dischargers with limited resources
like HARSB.
HARSB is a small sewer district with an annual
budget of around $11.2 million that serves around
16,194 customers in and around the municipality of
Hayden in Northern Idaho. 3 HARSB operates a
wastewater treatment plant that collects wastewater
from its customers; treats it; and discharges the
treated wastewater to the Spokane River pursuant to
a Clean Water Act NPDES (now IPDES) permit
(Permit). 4
Over the past two permit cycles, 5 HARSB has
spent over $38 million in improvements to its
3 Hayden Area Reg’l Sewer Bd.,
Official Minutes (Sept. 21, 2023),
www.harsb.org/news/09212023.htm.
4 The original NPDES permit was issued by EPA in 1989. Idaho
Dep’t of Env’t Quality, Fact Sheet at 11, Idaho Pollutant
Discharge Elimination System Discharge Permit No. ID0026590
(June
1,
2024),
www2.deq.idaho.gov/admin/LEIA/index.html?view=folder&id=3
064. The NPDES permit was converted into an Idaho Pollutant
Discharge Elimination System (IPDES) permit after Idaho
obtained permitting primacy from EPA in 2018. IDEQ issued a
new IPDES permit in April 2024. Idaho Dep’t of Env’t Quality,
Idaho Pollutant Discharge Elimination System Permit No.
ID0026590 (Apr. 29, 2024). HARSB administratively appealed
the Permit in May 2024.
5 NPDES permits last for five years, but are administratively
extended so long as a timely renewal application is filed. Due to
7
wastewater treatment plant, funded primarily by
customers through the rates paid for service.
Improvements included installation of ultra filtration
membranes, tertiary clarification, biosolid drying
technologies, and other infrastructure necessary to
meet the numeric effluent limits in the permit. See
Fact Sheet at 11; HARSB Petition for Review at 2
(May 24, 2024), Hayden Area Reg’l Sewer Bd. v. Idaho
Dep’t of Envt’l Quality, Agency Case No. 0125-24-01. 6
HARSB’s Permit contains numeric effluent
limitations. For each regulated pollutant, the effluent
limitations identify the amount of the pollutant that
may be discharged, expressed in terms of
concentration, mass, or both; and explains the timeperiod for which those limits are measured, such as
“monthly average,” “weekly average,” or “annual
average.” See Permit at 8–11.
IDEQ derived these effluent limitations by
identifying the relevant water-quality standards;
considering the characteristics of HARSB’s discharge;
and calculating the amount of each pollutant that
HARSB could discharge to meet the water-quality
standards. See Fact Sheet at 32–48.
Recognizing that HARSB could not immediately
meet these limitations, through several permit cycles
EPA and IDEQ created compliance schedules, as
a backlog, HARSB’s prior permit, issued in 2014, remained in
effect until the Permit was issued in June 2024. See Fact Sheet
at 11.
6 https://www2.deq.idaho.gov/admin/LEIA/api/document/downlo
ad/22133.
8
authorized by the Act, to provide HARSB sufficient
time to plan, engineer, fund, and construct the capital
improvements necessary to meet these numeric
limits. See EPA, National Pollutant Discharge
Elimination System Discharge Permit No. ID0026590
at 11–12 Dec. 1, 2014 (2014 Permit); 7 Permit at 7, 10,
34; Fact Sheet at 73.
The Permit also directs HARSB to comply with
certain water-quality standards. In full: “The
permittee must comply with all narrative [water
quality] criteria at [Idaho Administrative Code r.]
58.01.02.200.” Permit at 12.
Several of the referenced water quality criteria
turn on the status of the “surface waters of the state”
or put another way, the water within the Spokane
River, which receives not only HARSB’s discharge,
but also the discharge from many upstream pointand non-point sources. These quality criteria provide,
in relevant part:
•
“Surface waters of the state shall be
free from hazardous materials in
concentrations found to be of public
health significance or to impair
designated beneficial uses.” IDAHO
ADMIN. CODE r. 58.01.02.200.01
(emphasis added).
https://19january2021snapshot.epa.gov/sites/static/files/201712/documents/r10-npdes-harsb-id0026590-final-permit-201442pp.pdf.
7
9
•
“Surface waters of the state shall be
free from floating, suspended, or
submerged matter of any kind in
concentrations causing nuisance or
objectionable conditions or that may
impair designated beneficial uses.”
Id. at 58.01.02.200.05 (emphasis
added).
•
“Surface waters of the state shall be
free from excess nutrients that can
cause visible slime growths or other
nuisance aquatic growths impairing
designated beneficial uses.” Id.
at 58.01.02.200.06
(emphasis
added).
•
“Surface waters of the state shall be
free
from
oxygen-demanding
materials in concentrations that
would result in an anaerobic water
condition.” Id. at 58.01.02.200.07
(emphasis added).
Wholesale incorporation of these water-quality
standards into HARSB’s permit creates several
problems.
First, the water-quality standards apply to
receiving waters of the State, not to HARSB’s
discharge. HARSB controls only its discharge—a
small discharge, at that. It cannot control the actions
of other dischargers. So it cannot ensure that
“[s]urface waters of the state” meet certain conditions.
E.g., IDAHO ADMIN. CODE r. 58.01.02.200.01–.07.
10
This problem is particularly acute for HARSB.
HARSB discharges into the Spokane River
downstream from the Bunker Hill Complex
Superfund Site. Fact Sheet at 13; EPA, Fifth Five-
Year Review Report for the Bunker Hill Mining &
Metallurgical Complex Superfund Facility at 4 (Sept.
30, 2021). 8 The Bunker Hill Complex is among the
nation’s largest and most complex Superfund sites.
EPA, Bunker Hill Mining & Metallurgical Complex:
Cleanup Activities (July 17, 2024). 9 Historical mining
operations within the Complex resulted in
widespread contamination, including contamination
of surface waters with heavy metals such as arsenic,
lead, and mercury. Id.; EPA, Bunker Hill Mining &
Metallurgical Complex: Contaminants of Concern. 10
Facilities at the Complex, including watertreatment facilities, continue to introduce pollutants,
including heavy metals, into upstream tributaries of
the Spokane River. EPA, Action Memorandum for the
Bunker Hill Groundwater Cut-off Wall and I-90
Subsidence, Kellogg, ID, at 3 (Mar. 18, 2019). 11
8 https://semspub.epa.gov/work/10/100363132.pdf.
9 https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuse
action=second.Cleanup&id=1000195#bkground.
10 https://cumulis.epa.gov/supercpad/SiteProfiles/index.cfm?fuse
action=second.contams&id=1000195.
11 https://semspub.epa.gov/work/10/100139927.pdf (noting lead,
arsenic, cadmium and zinc are known to be on-site hazardous
substances in concentrations that present health hazards to
humans or the environment, and it is “known” that groundwater
flowing towards upstream tributaries of the Spokane River
“carries hazardous substances which are released into” those
11
HARSB and its ratepayers have invested heavily
in the wastewater treatment plant to achieve
compliance with the numeric effluent limits in its
Permit. Even still, there may well be concentrations
of metals, in receiving waters, that are “of public
health concern.” If so, at least some portion of those
metals is introduced upstream of HARSB, including
likely contributions from the Bunker Hill Superfund
Complex. It’s simply impossible for HARSB to ensure
that the Spokane River is “free from hazardous
materials” in concentrations “found to be of public
health significance.” IDAHO ADMIN. CODE r.
58.01.02.200.01.
The same is true for phosphorus and other
nutrients: upstream point- and non-point sources
contribute nutrients to the Spokane River at
HARSB’s point of discharge. HARSB cannot, in and of
itself, ensure that the receiving waters are free from
both “excess nutrients that can cause . . . nuisance
aquatic growths” and “oxygen-demanding materials
in concentrations that would result in an anaerobic
water
condition.”
IDAHO ADMIN. CODE r.
58.01.02.200.06 & .07.
Second, the incorporated water-quality criteria
are too vague to provide meaningful direction to
HARSB about its discharge. What are “concentrations
[of hazardous materials] found to be of public health
significance?” IDAHO ADMIN. CODE r. 58.01.02.200.01.
What steps must HARSB take, or refrain from taking,
if any, regarding any hazardous materials beyond the
tributaries; “a phenomenon that has been occurring for
decades”).
12
specific effluent limitations that were calculated to
meet water-quality standards? See Permit at 8–10;
Fact Sheet at 32-48.
Similarly, what types, and concentrations, of
“floating, suspended, or submerged matter” cause
“nuisance or objectionable conditions?” IDAHO ADMIN.
CODE r. 58.01.02.200.05. And what is “an anaerobic
water condition?” Id. at 58.01.02.200.07.
Without knowing what these water-quality
criteria mean, as applied to HARSB’s discharge—and
what steps HARSB must or cannot take regarding
them, beyond the specific effluent limitations
elsewhere in its permit—HARSB cannot “comply
with” them. Permit at 12.
This mirrors the conundrum in which San
Francisco finds itself. True, the directive to comply
with water-quality standards in HARSB’s permit is
not as broad as the City’s: San Francisco’s permit
prohibits it from violating any applicable water
quality standard, Pet. App. 97, while HARSB’s Permit
directs it to “comply with” all narrative water-quality
criteria, Permit at 12. 12 But the limits suffer the same
fundamental defects.
12 Water-quality standards include two components: designated
uses and criteria designed to protect those uses. See 33 U.S.C.
§ 1313(c)(2)(A) (“[A State’s]water quality standard shall consist
of the designated uses of the navigable waters involved and the
water quality criteria for such waters based upon such uses.”).
HARSB’s permit directs it to comply with Idaho’s narrative
water-quality criteria, which are components of Idaho’s waterquality standards. IDAHO ADMIN. CODE r. 58.01.02.200.
13
This buttresses a simple but important point: the
problems identified by Petitioners are pervasive.
They extend to large, wealthy cities in coastal
California and small, cash-strapped rural sewer
districts in Northern Idaho.
As explained below, wholesale incorporation of
water-quality standards into individual permits
exposes dischargers to the risk of Clean Water Act
liability, to the detriment of all stakeholders, without
improving water quality.
II.
Wholesale adoption of water-quality standards
into individual permits imposes the risk of
liability with no attendant benefit to water
quality.
HARSB’s permit contains specific, numeric
effluent limitations, which allow HARSB to discharge
specific amounts of the identified pollutants, and
which IDEQ derived through discharge-specific
application of water-quality standards. See Fact
Sheet at 32–48. Many of the numeric limits are, and
have been, paired with compliance schedules
designed to create a reasonable timeline to achieve
them. See Permit at 7, 10, 34; Fact Sheet at 73.
These
discharge-focused,
specific
effluent
limitations, coupled with achievable timelines, drive
HARSB to action. HARSB knows that failure to
comply with these limits will expose it to “crushing
consequences,” Sackett v. EPA, 598 U.S. 651, 660
(2023) (cleaned up), while compliance with the limits
shields it from liability, 33 U.S.C. § 1342(k). Within
this framework, HARSB can formulate a plan to
14
comply with the effluent limits; articulate the plan to
its ratepayers; obtain consent and funding for the
plan; and implement the plan, including the
necessary capital improvements.
This works—HARSB’s scant customer base of
16,000 have funded over $38 million in improvements
to the wastewater-treatment facility to meet these
effluent limitations. HARSB benefits from the permit
shield. And the public benefits from the water-quality
improvements that flow from the upgrades to
HARSB’s facility.
But HARSB’s permit conditions based on Idaho's
narrative water-quality criteria are vague and turn
on the condition of “surface waters” of the state rather
than what HARSB can control—the nature and
content of its discharge. See Permit at 12; IDAHO
ADMIN. CODE r. 58.01.02.200. These narrative waterquality criteria are effective immediately. Inherent in
the nature of a compliance schedule are specific steps
for a discharger to ensure its own discharge complies
with the permit conditions, but neither the regulated
nor regulator knows what HARSB must or must not
do to ensure that receiving waters—outside of
HARSB's control—meet the water-quality criteria.
So the water-quality-standards incorporated into
HARSB’s permit do not drive HARSB’s behavior.
HARSB cannot singlehandedly control the condition
of the surface waters of the state. It is only one
discharger among many, and the condition of these
particular surface waters is heavily influenced by
pollution that comes from the upstream Superfund
site.
15
Not only does the vagueness of these conditions
leave HARSB in the dark as to whether its discharge
complies but it also leaves HARSB unable to identify
steps that will, for example, ensure that surface
waters of the state meet the conditions prescribed in
the narrative water-quality criteria. Under these
circumstances, HARSB cannot identify steps that
must—or even should—be taken to achieve
compliance with these permit conditions. In turn,
HARSB cannot formulate a plan; articulate the plan
to its ratepayers; obtain consent and funding for the
plan; and implement the plan. HARSB is left to cross
its fingers and hope that compliance with the specific,
numeric limitations also satisfies the incorporated
water-quality-standards; that agencies or citizenenforcers not opportunistically enforce against
HARSB; or that, if a judicial enforcement action is
brought, the court takes a common-sense approach
and doesn’t hold HARSB responsible for factors
outside of its control.
This does not work—it is detrimental to all
parties. Dischargers must live with the risk of
liability, because they do not know what specific steps
to take to avail themselves of the permit shield. Small
dischargers with limited funds are particularly
impacted: they cannot make improvements to their
facilities “just in case” those improvements might
decrease liability associated with incorporated waterquality-standards. Specific, concrete steps with
achievable timelines are necessary to drive these
small dischargers’ behavior.
Agencies tasked with monitoring and enforcing
the permits face the mirror image of this issue: it’s
16
less expensive, easier, and entails less litigation risk
to monitor and enforce conditions that contain
discharger-specific, concrete limitations rather than
vague limitations based on the condition of the
receiving water. In other words, the receiving-waterfocused, vague nature of water-quality-standards,
when incorporated into individual permits, creates
uncertainty for the agency as well as the dischargers,
which impedes monitoring, enforcement, and
associated benefits to water quality.
Nor does the public benefit from incorporating
water-quality standards into individual permits. For
example, the HARSB-discharge-focused, specific,
numeric effluent limits in HARSB’s permit provide
the certainty necessary to make the investments to
improve water quality. The water-quality-standardsturned-effluent limits do not. The specter of crushing
liability associated with water-quality-standards
incorporated as effluent limitations is attenuated
from the Act’s purpose: improving water quality.
17
III.
Wholesale incorporation of water-quality
criteria into individual permits is inconsistent
with the text and structure of the Clean Water
Act.
A.
Wholesale incorporation of water-quality
standards into an individual permit does not
create an “effluent limitation” as defined in the
Act and obliterates the statutory distinction
between “effluent limitations” and “water
quality standards.”
Under the Act, an “effluent limitation” is a
“restriction . . . on quantities, rates, and
concentrations of chemical, physical, biological, and
other constituents which are discharged from point
sources into navigable waters.” 33 U.S.C. § 1362(11)
(emphasis added).
“Water quality standards,” by contrast, are stateestablished and EPA-approved standards that
identify designated uses, and criteria to protect such
uses, of navigable waters. See 33 U.S.C.
§ 1313(c)(2)(A) (requiring water-quality standards to
include designated uses and criteria “of the navigable
waters”); 40 C.F.R. § 131.3(i) (“Water quality
standards are provisions of State or Federal law
which consist of a designated use or uses for the
waters of the United States and water quality criteria
for such waters based upon such uses.”).
The text of the Act thus distinguishes between
effluent limitations and water-quality standards:
effluent limitations are restrictions on constituents
discharged from a point source; water-quality
18
standards are designated uses and associated criteria
that apply to the waters into which a point source
discharges. Effluent limitations must be calculated
“to meet water quality standards.” 33 U.S.C.
§ 1311(b)(1)(C); see also 33 U.S.C. § 1312(a)
(requiring permitting agency to establish waterquality-based effluent limits “which can reasonably
be expected to contribute to the attainment or
maintenance of” water quality). The textual
distinction between effluent limitations and waterquality standards occurs throughout the Act, as
others have noted. 13
Consider the citizen-suit provision. It allows
citizens to bring suit against persons alleged to be in
violation of “an effluent standard or limitation under
this chapter” or orders related to effluent standards
or limitations. 33 U.S.C. § 1365(a)(1). The Act confers
subject-matter jurisdiction on district courts “to
enforce such an effluent standard or limitation,” and
agency orders related to them. Id. § 1365(a). The
phrase “effluent standard or limitation” includes
several limitations, standards, and regulations
established under the Act. See 33 U.S.C. § 1365(f)
(defining “effluent standard or limitation” to include
standards or limitations developed under 33 U.S.C.
sections 1311, 1312, 1316, 1317, 1322(p), 1341, 1342,
and 1345(d)). Notably absent from this list are waterquality standards, which are authorized under
section 1313 of the Act.
13
See Pet.Br. at 34–37.
19
So effluent limitations and other standards—but
not water-quality standards—are enforceable by
citizen-suit under section 1365(a). This, too, confirms
the bona fide distinction between effluent limitations
and water-quality standards.
The textual distinction between effluent
limitations and water-quality standards must be
maintained. Effluent limitations are not, and cannot
be, water-quality standards. And vice-versa: waterquality standards are not, and cannot be, effluent
limitations.
This textual distinction plays out in practice. Take
HARSB’s permit. IDEQ calculated effluent
limitations that restrict constituents in HARSB’s
discharge. Permit at 8–11. These effluent limitations
were based on—and designed to meet—the State’s
water-quality standards. See Fact Sheet at 32–48; 33
U.S.C. § 1311(b)(1)(C). These are bona fide effluent
limits—they are “restriction[s]” on “quantities, rates,
and concentrations” of “constituents which are
discharged from [a] point source[] into navigable
waters.” 33 U.S.C. § 1362.
But IDEQ also directed HARSB to “comply with”
Idaho’s narrative water-quality criteria. Permit at 12.
The narrative water-quality criteria, part of Idaho’s
water-quality standards, relate to the condition of the
“surface waters of the State.” IDAHO ADMIN. CODE r.
58.01.02.200. The water-quality criteria are not, in
substance, restrictions on the quantities, rates, and
concentrations of constituents discharged from a
point source. They are, in substance, criteria that
apply to navigable waters, not HARSB’s discharge. A
20
permitting authority cannot transmute a waterquality-standard into an effluent limit by merely
ordering a discharger to “comply with” a waterquality standard. Doing so obliterates the distinction
between the terms as used in the Act.
B.
Wholesale incorporation of water-quality
standards into permits is inconsistent with the
structure of the Act.
Key structural features of the Act confirm that
there is—and must remain—a distinction, with a
difference, between effluent limitations and waterquality standards.
Others have persuasively identified and explained
some of these key features. See Pet.Br. at 34–37, 45–
48. HARSB’s focus is on the extensive up-front
permitting process, which, when combined with the
permit shield and enforcement structure, confirms
that effluent limits must indeed regulate constituents
“discharged from point sources” rather than the
condition of the receiving water itself. 33 U.S.C.
§ 1362(11).
The Act establishes significant up-front processes
for developing, collecting input regarding, and issuing
NPDES permits. Upon receiving an application, the
agency must tentatively decide whether to issue a
draft permit or, instead, whether to deny the permit.
40 C.F.R. § 124.6(a). 14 Among other things, the
agency must then identify the applicable technology14 These federal regulations also apply to states, tribes, and other
permitting authorities. See 40 C.F.R. § 123.25.
21
based effluent limitations and, for pollutants that
have the reasonable potential to exceed water-quality
standards, calculate water-quality-based effluent
limitations that derive from, and are calculated to
meet, those water-quality standards. See 40 C.F.R.
§ 122.44(a)(1) (technology-based effluent limits); id.
§ 122.44(d)(1)(i) (water-quality-based effluent limits
for pollutants with reasonable potential to exceed
water-quality standards); id. § 122.44(d)(1)(vii)(A)
(water-quality-based effluent limitations must be
“derived from” water-quality standards).
After all this, the agency must publish a draft
permit that contains all the proposed conditions,
including proposed effluent limitations, as well as a
draft fact sheet that explains how the conditions were
derived. 40 C.F.R. § 124.6(d) (draft permit), id.
§ 124.6(e) (draft fact sheet). The agency then
publishes the draft permit and draft fact sheet and
provides notice to the public. See 40 C.F.R. § 124.10.
During this comment period, any interested member
of the public can comment and may ask for a public
hearing. Id. § 124.11.
After the comment period closes, the agency must
consider and respond to all significant comments that
were received, 40 C.F.R. § 124.17, and must also
include or respond to comments provided by other
public agencies, 40 C.F.R. § 124.59.
The agency then publishes the final permit and
fact sheet. Members of the public and the permittee
can appeal the permit and then seek judicial review.
See 40 C.F.R. § 124.6(e).
22
This extensive, up-front process makes sense. The
conditions in the permit are the linchpin of the Act.
Once the permit is finalized, its conditions are binding
on the discharger. Violations of the permit are subject
to “crushing consequences,” whether through
enforcement by an agency or through citizen-suit.
Sackett v. EPA, 598 U.S. 651, 660 (2023) (cleaned up);
33 U.S.C. § 1365 (CWA’s citizen-suit provision).
The permit conditions are also binding on the
agency and on the public. So long as the permittee
discharges pollutants in accordance with the permit,
the permittee is shielded from liability. See 33 U.S.C.
§ 1342(k).
This is true even if a member of the public, or the
agency, believe that the limitations in the permit
aren’t strict enough. See EPA Consolidated Permit
Regulations, 45 Fed. Reg. 33,290, 33,312 (May 19,
1980) (“[I]f 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 . . . .”). And citizens can bring a
citizen-suit alleging upon violations of effluent
limitations, while they cannot bring a citizen-suit
alleging that the effluent limitations are inadequate
(or to enforce water-quality standards, for that
matter). See 33 U.S.C. § 1365(a)(1) (authorizing “any
citizen” to commence a civil action against any person
“who is alleged to be in violation of . . . an effluent
standard or limitation under this standard”).
The extensive up-front procedure associated with
NPDES permits confirms the distinction between
23
effluent limits and water-quality standards in a few
ways.
First, Congress meant what it said when it defined
an “effluent limitation” as a restriction on
constituents “which are discharged from point sources
into navigable waters.” 33 U.S.C. § 1362(11)
(emphasis added). Developing effluent limitations
isn’t a simple or easy task. It involves significant
work, and requires significant process from the
permittee, the agency, and the public. Once this
process is complete, the effluent limitations are
binding on the permittee, the agency, and the public.
The extensive up-front process confirms that
development of effluent limitations is, and must be, a
discharger-specific task that results in specific
limitations that apply to particular dischargers.
Second, incorporation of water-quality standards
into individual permits would drain the importance
from this process. The whole point of NPDES permits
is to establish effluent limitations designed to meet
water-quality standards. See 33 U.S.C. § 1342(a)(1)
(authorizing issuance of NPDES permit “upon
condition that such discharge will meet” all applicable
requirements of the Act). If the agency could just
order permittees to comply with water-quality
standards, there would be no need for notice,
comment, response to comments, an appeal period,
and the other processes associated with issuing a
permit. And citizen-suits would, in substance, be
authorized to enforce water-quality standards rather
than effluent limitations.
24
In short, the extensive process associated with
developing NPDES permits is not superfluous. It’s a
key feature of the Act. Translating broadly applicable
water-quality standards into effluent limitations that
restrict a permittee’s discharge is difficult. It’s
important. It drives water-quality improvements.
And it defines the rights of the permittee and the
public alike. Allowing agencies to command
individual permittees to comply with water-quality
standards undercuts this key structural component of
the Act.
CONCLUSION
For these reasons, and the reasons set forth by
Petitioner, the Ninth Circuit’s decision should be
reversed.
Respectfully submitted,
Preston N. Carter
Counsel of Record
Morgan D. Goodin
GIVENS PURSLEY LLP
601 W. Bannock St.
Boise, ID 83702
(208) 388-1200
prestoncarter@givenspursley.com
Benjamin Allen
SILVER VALLEY LAW
P.O. Box 633
Osburn, ID 83849
(208) 752-1106
ballen@silvervalleylaw.com
July 26, 2024
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.