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,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE

THE NATIONAL ASSOCIATION OF

HOME BUILDERS, THE ASSOCIATED

GENERAL CONTRACTORS OF AMERICA, INC.,

AND THE AMERICAN ROAD &

TRANSPORTATION BUILDERS ASSOCIATION

IN SUPPORT OF PETITIONER

Jeffrey Longsworth

John A. Sheehan

Counsel of Record

K aren Bennett

Earth & Water Law LLC

1455 Pennsylvania Ave., N.W.,

Ste. 400

Washington, DC 20004

(202) 280-6362

john.sheehan@earthandwatergroup.com

Counsel for Amici Curiae

(additional counsel listed at the end of the brief)

130268

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . i

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

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . . . 1

STATEMENT ON QUESTION PRESENTED . . . . . . 2

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 4

I.

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

A. The Clean Water Act Permitting

Program is Expansive and Complex . . . . . . 7

B. N PDE S Pe r m it s a r e En for c e d

Through Numeric and Non-Numeric

R equ i r ement s Sp ec i f ied i n t he

Permit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

C. Wa t e r Q u a l it y- Ba s e d Ef f lue nt

Limitations A re Triggered When

Technology Limits are Not Sufficient

t o A d d r e s s a S p e c i f i c Wa t e r

Quality Concerns . . . . . . . . . . . . . . . . . . . . . 10

D. Incorporating Technology and Water

Quality Prov isions into General

Permits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

ii

Table of Contents

Page

E. There is an Important Overlap Between

Construction General Permits and

Municipal General Permits . . . . . . . . . . . . . 15

II. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

A. Sa n F ra ncisco’s Vag ue N PDES

Permit Fails to Establish Descriptive

Permitting Requirements Necessary

to Achieve Compliance . . . . . . . . . . . . . . . . . 18

B. G e n e r i c B a c k s t o p P r o v i s i o n s

Undermine the Entire Purpose of

NPDES Permits and Should Not Be

Allowed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

C. The Ninth Circuit Decision Eliminates

the Permit Shield . . . . . . . . . . . . . . . . . . . . . 24

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

iii

TABLE OF CITED AUTHORITIES

Page

CASES

Arkansas v. Oklahoma,

503 U.S. 91 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 11

Citizens Coal Council v. EPA,

447 F.3d 879, 865 (6th Cir. 2006) . . . . . . . . . . . . . . . . . 9

Defenders of Wildlife v. Browner,

191 F.3d 1159 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . 16

E.I du Pont de Nemours v. Train,

430 U.S. 112 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 9

Entergy v. EPA,

556 U.S. 208 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 4

EPA v. California ex rel. State Water Res.

Control Bd. (EPA v. California),

426 U.S. 200 (1976) . . . . . . . . . . . . . . . . . . . . 5, 8, 20, 21

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

568 F.2d 1369 (D.C. Cir. 1977) . . . . . . . . . . . . . . . . . . . 9

Natural Res. Def. Council, Inc. v.

EPA (NRDC I),

822 F.2d 104 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . 11

Natural Res. Def. Council, Inc. v.

EPA (NRDC II),

808 F.3d 556 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . . . . 11

iv

Cited Authorities

Page

Ohio Valley Envtl. Coal Co.,

845 F.3d 133 (4th Cir. 2017) . . . . . . . . . . . . . . . . . . . . 25

Piney Run Preservation Ass’n v.

Cnty. Commissioners of Carrol Cnty.,

268 F.3d 255 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . 6

United States v. City & Cnty. Of San Francisco,

No. 3:24-cv-02594 (N.D. Cal. May 1, 2024) . . . . . . . . 6

Waterkeeper All., Inc. v. EPA,

399 F.3d 486 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . .10

STATUTES

33 U.S.C. § 1251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

33 U.S.C. § 1311 . . . . . . . . . . . . . . . . . . . 5, 8, 16, 19, 21, 24

33 U.S.C. § 1312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

33 U.S.C. § 1314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

33 U.S.C. § 1316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

33 U.S.C. § 1317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

33 U.S.C. § 1342 . . . . . . . . . . . . . . . . . . . . . . . 5, 7, 8, 16, 24

33 U.S.C. § 1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

v

Cited Authorities

Page

33 U.S.C. § 1362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

40 C.F.R. § 122 . . . . . . . . . . . . . . . . . . . . . . . . 10, 17, 19, 22

40 C.F.R. § 124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

40 C.F.R. § 130 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

40 C.F.R. § 450 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

OTHER AUTHORITIES

EPA, NPDES Permit Writers’ Manual (NPDES

Manual) 3.1 (Sep. 2010) . . . . . . . . . . . . . . . . . . . . . . . 8-9

EPA’s NPDES per mits, see https: // w w w.

epa.gov/npdes/all-npdes-program-areas . . . . . . . . . 12

https://www.epa.gov/npdes/2022-construction

-general-permit-cgp . . . . . . . . . . . . . . . . . . . . . . . . . . 14

https://w w w.epa.gov/system/files/documents/

2022-01/2022-cgp-final-permit.pdf at 94] . . . . . . . . 15

https://www3.epa.gov/region1/npdes/stormwater/

ma/ma-small-ms4-2020-mods-sob.pdf . . . . . . . . . . . 18

San Francisco Public Utilities Commission,

San Francisco Wastewater Long Ter m

Control Plan Synthesis . . . . . . . . . . . . . . . . . . . . . . . 18

1

INTEREST OF AMICUS CURIAE

The National Association of Homebuilders (NAHB)

represents over 140,000 builder and associate members

throughout the United States, including individuals and

firms that construct and supply single-family homes, as

well as apartment, condominium, multi-family, commercial

and industrial builders, land developers and remodelers.

As part of the construction and development process, its

members commonly obtain Clean Water Act (CWA) permits

that include both numeric and narrative limitations.1

NAHB has developed comprehensive familiarity with the

CWA’s permitting requirements and provides compliance

advice to its members. NAHB frequently participates as a

party litigant and amicus curiae to safeguard the rights

and interests of its members.

The Associated General Contractors of America, Inc.

(AGC of America) is the nation’s largest and most diverse

trade association in the commercial construction industry,

representing more than 28,000 companies through a

nationwide network of chapters in all 50 states, the District

of Columbia, and Puerto Rico. AGC of America’s member

firms are engaged in building, heavy, civil, industrial,

utility, and other construction for both public and private

property owners and developers. These construction

activities on land and water often require Clean Water

Act permits before proceeding. AGC of America works

to ensure the continued success of the commercial

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

of this brief was authored by counsel for any party, and no person

or entity other than Amici made any monetary contribution to the

preparation and submission of the brief.

2

construction industry by advocating for federal, state,

and local measures that support the industry; providing

education and training for member firms; and connecting

member firms with resources needed to be successful

businesses and responsible corporate citizens. AGC of

America’s goal is to serve its members by advancing the

profession of construction and improving the delivery

of the industry’s services consistent with the public’s

interest.

The American Road & Transportation Builders

Association’s (ARTBA) membership includes private

and public sector members, that plan, design, build and

maintain the nation’s roadways, waterways, bridges,

ports, airports, rail and transit systems. ARTBA’s

nearly 8,000 members generate more than $650 billion

annually in U.S. economic activity, sustaining more

than 4.4 million American jobs. Many ARTBA members

directly participate in the federal permitting process

and undertake a variety of construction-related activities

requiring compliance with the CWA. ARTBA members

also restore and preserve wetlands within the scope

of transportation construction projects, reflecting the

complementary objectives of improving our nation’s

transportation infrastructure and protecting essential

water resources. Consequently, ARTBA’s members are

directly impacted by CWA permitting decisions, and look

to ARTBA for guidance and advocacy on these matters.

STATEMENT ON QUESTION PRESENTED

The question presented is whether the Clean Water Act

(CWA) allows the U.S. Environmental Protection Agency

(EPA) or a state to impose generic narrative provisions

3

in National Pollutant Discharge Elimination System

(NPDES) permits as “backstops” for protecting water

quality standards, and then subjecting permitholders

to enforcement actions related to the generic narrative

provisions when more specific water quality-based effluent

limitations are available and appropriate. Arguably, the

generic narrative provisions at issue in this case are not

effluent limitations required by the NPDES program and

fail to inform the permittee what actions it must take to

comply with its permit.

As the City and County of San Francisco (San

Francisco) point out, this Court and the Second Circuit

have correctly interpreted the CWA to require EPA

and states to develop effluent limitations in permits to

protect a water body’s designated uses. Amici, national

construction trade associations, submit this brief to

inform this Court about the broad reaching effects on

multiple CWA NPDES permitting programs that could

be negatively impacted by this Court’s decision. Some of

these programs may differ from the permit conditions at

issue in this case but are still “effluent limitations.” 2

2. NAHB filed a similar brief in Entergy v. EPA, 556 U.S. 208

(2009), explaining how the issues before this Court in that case

could impact how NPDES permits were issued to the construction

industry. (“In construing section 316(b), the court of appeals

has confused more than 30 years of case law interpreting other

CWA sections that have more pertinence to the home building

process,and has needlessly exposed those sections to new legal

challenges. NAHB submits this brief to ensure that, regardless

of whether the Court reverses or affirms, the scope of any

decision here is limited to interpreting only CWA § 316(b), and

does not disturb well-established precedent interpreting other

CWA provisions that more directly regulate construction and

4

SUMMARY OF ARGUMENT

The City and County of San Francisco’s NPDES

permit includes a generic narrative prohibition against

causing or contributing to violations of a water quality

standard in addition to other detailed effluent limitations

specifying the quantities of pollutants San Francisco is

authorized to discharge to comply with the CWA. The

generic narrative provisions—that the Ninth Circuit

referred to as “backstop” provisions—amount to the same

CWA enforcement scheme that proved unworkable under

the pre-1972 reformulation of the CWA. These provisions

fail to provide San Francisco with prior notice of the

actions required to ensure compliance with its permit,

thereby exposing San Francisco, along with any similarly

situated permittees nationwide, to an undeterminable risk

of CWA enforcement actions and citizen suits.

The CWA requires EPA and authorized states to

clearly specify a permittee’s water quality protection

obligations through pollutant-specific effluent limitations.

These pollutant-specific limitations include technologybased requirements that may and often are set forth

as descriptive narrative permit requirements (such as.

“best management practices” or specific operational

requirements or prohibitions), as well as numerical

technology-based and water quality-based eff luent

limitations when appropriate, as explained in detail below.

When a permittee conducts its discharging activities

consistent with the effluent limitations in its permit, CWA

development of housing.”) This Court used, in part, information

contained in NAHB’s amicus curiae brief in its final decision

in Entergy. The construction trade associations raise similar

concerns here.

5

Section 402(k) provides a defense against allegations of

non-compliance. However, issuing NPDES permits with

generic narrative provisions, such as “cannot cause or

contribute to a violation of water quality standards,” fails

to notify permittees of required actions and undermines

the permit shield Congress provided for in the CWA.

The Ninth Circuit’s split opinion marks a return to

the pre-CWA system of water quality regulations that

proved unworkable. EPA v. California ex rel. State Water

Res. Control Bd. (EPA v. California), 426 U.S. 200, 202

(1976). Before the CWA was amended in 1972, water

quality protection enforcement relied on the attainment of

state ambient water quality standards, but the approach

was difficult to enforce because of the lack of any specific

standard against which a party could measure compliance.

Congress revised the CWA in 1972 to require any point

source pollutant discharges to jurisdictional waters

to be legal when such dischargers are subject to and

in compliance with an NPDES permit. See 33 U.S.C.

§ 1311(a).

Under this revised approach, Congress shifted the

burden to EPA and states to ensure that state water

quality standards are met through pollutant-specific

eff luent limitations in NPDES permits, providing

permittees with certainty against enforcement actions.

See 33 U.S.C. § 1342(a)(2). Arkansas v. Oklahoma, 503 U.S.

91, 96 (1992). Going forward, the expectation was that EPA

and states would issue permits authorizing discharges of

pollutants consistent with the restrictions expressed in the

permit as pollutant-specific effluent limitations. 33 U.S.C.

§ 1362(11); E.I du Pont de Nemours v. Train, 430 U.S.

112, 119-20 (1977) (Justice Stevens clearly indicating that

those limitations were translated into obligations of the

6

discharger through their inclusion in an NPDES permit.).

Where a permittee acted within the effluent limitations set

forth in the permit, they were afforded certainty that the

government would not bring an enforcement action or that

they would not have to defend themselves against litigation

for the permit term. See, Piney Run Preservation Ass’n

v. Cnty. Commissioners of Carrol Cnty., 268 F.3d 255 (4th

Cir. 2001). The Ninth Circuit’s opinion inappropriately

shifts that burden to permittees and strips them of the

protections Congress intended.

San Francisco’s challenge to the NPDES permit

issued by EPA is necessary because the permit includes

unclear, generic narrative provisions that put San

Francisco in jeopardy of a future permit enforcement

action. 3 Amici also obtain a variety of NPDES permits

and want to make certain that this Court’s decision does

not upend existing successful permitting approaches,

particularly narrative effluent limitations, in “construction

general permits” (CGP) issued by EPA and states.

Generally, CGPs authorize point source discharges of

pollutants associated with ongoing construction-related

land disturbing activities through descriptive non-numeric

technology-based best management practices, operational

requirements and prohibitions, as well as numerical

technology-based and water quality-based point source

effluent limitations, as appropriate.

In this case, the Ninth Circuit’s split decision disrupts

the long-established CWA enforcement framework

3. See EPA enforcement action alleging San Francisco

violated its Bayside permit based on Generic Prohibitions identical

to those challenged in this case. Complaint United States v. City &

Cnty. Of San Francisco, No. 3:24-cv-02594 (N.D.Cal. May 1, 2024).

7

Congress created in 1972 and harkens back to a pre1972 approach that will increase litigation exposure

for tens of thousands of regulated parties covered by

the NPDES permit program. While we agree with San

Francisco that this Court should overturn the Ninth

Circuit’s ruling, Amici submit this brief to ensure that,

regardless of whether the Court reverses or affirms,

the scope of any decision in this matter does not disturb

the well-established precedent of using descriptive nonnumerical narrative effluent limitations, as appropriate,

in construction-related NPDES permits.

I.

STATEMENT OF THE CASE

A.

The Clean Water Act Permitting Program is

Expansive and Complex

The Clean Water Act’s permitting program is

expansive and complex, regulating “discharges” of

“pollutants” from “point sources” to “navigable waters.”

Congress recognized that addressing point source

discharges from diverse industries and municipalities

would require EPA to develop sector-specific programs

tailored to focus on the unique point source discharges

associated with each, including stormwater discharges.

See, 33 U.S.C. §§ 1342(p)(3)(A) Industrial discharges; (B)

Municipal discharge; 1342(p)(4)(A) Industrial and large

municipal discharges; (B) Other municipal discharges; (5)

Identifying other stormwater discharges to be regulated;

(6) Issuing regulations and requiring state stormwater

programs; and 1342(q) Combined sewer overflows.4

4. Unlike more traditional wastewater discharges that are

fairly constant over time, stormwater discharges are highly

8

The Act prohibits the discharge of a pollutant by any

person from any point source to navigable waters except

when authorized by a permit issued under the National

Pollutant Discharge Elimination System. 33 U.S.C.

§§ 1311(a), 1342 (making the permit, not the ambient

water quality standard, the instrument for managing and

restricting discharges). See EPA v. State Water Resources

Control Board, 426 U.S. 200, 206 (1976) (finding an

NPDES permit transforms generally applicable effluent

limitations and other standards, including those based

on water quality, into the obligations of the individual

discharger.). Administrative and judicial enforcement of

permits relies on the requirement that every NPDES

permit is statutorily required to set forth eff luent

limitations that are restrictions on the quantities, rates,

and concentrations of chemical, physical, biological, and

other constituents which may be discharged from point

sources into navigable waters. 33 U.S.C. § 1342. Compliance

with the permit is deemed compliance with the CWA. 33

U.S.C. § 1342(k).

NPDES permits may be either individual or general.

An individual permit is tailored to the site-specific

conditions of a single discharger, such as San Francisco,

whereas a general permit applies to multiple sites and

operators that conduct similar operations and generate

similar types of discharges. Both individual and general

permits are based on the permit writer’s professional

knowledge of those types of activities and discharges.

See EPA, NPDES Permit Writers’ Manual (NPDES

episodic, variable, and seasonal, requiring NPDES permits for

stormwater discharges to have to be more flexible and allow the

permittee to adjust their compliance program for likely variations.

9

Manual) 3.1 (Sep. 2010). The permitting authority carries

the burden of developing NPDES permits that set forth

appropriate technology-based and water quality-based

effluent limitations, whether numerical or descriptive nonnumerical, as necessary and appropriate. Permit holders

who comply with general permits are not liable under the

CWA for discharges from regulated activities.

B. NPDES Permits are Enforced Through

Numeric and Non-Numeric Requirements

Specified in the Permit

Congress has granted EPA and states broad flexibility

in crafting NPDES permits to achieve a desired reduction

in point source pollutant discharges. This includes

setting uniform effluent limitations through industrywide regulations (promulgated as effluent limitation

guidelines or ELGs) rather than developing them on

an individual basis during the permit issuance process.

These limitations are translated into obligations for the

discharger through their inclusion in an NPDES permit.

See Nat. Res. Def. Council, Inc. v. Costle, 568 F.2d 1369,

1380 (D.C. Cir. 1977); E.I. du Pont de Nemours v. Train,

430 U.S. 112, 119-20 (1977).

Permitting authorities start with the categorical

ELGs in developing NPDES permits and supplement

those technology-based effluent limitations with other

limitations that can be expressed as numeric pollutant

restrictions or specific narrative requirements to

implement various management practices, when a numeric

limit is not feasible. Nat. Res. Def. Council, Inc. v. Costle,

568 F.2d 1369, 1380 (D.C. Cir. 1977); See Citizens Coal

Council v. EPA, 447 F.3d 879, 865 (6th Cir. 2006) (EPA

10

may impose narrative requirements because “effluent

limitations are not limited to numeric discharge[ ]

restrictions”.); Waterkeeper All., Inc. v. EPA 399 F.3d

486, 502 (2d Cir. 2005) (numeric effluent limitations in the

form of required management practices meet the CWA’s

definition of “effluent limitations”).

Although EPA usually establishes quantitative or

numerical effluent limitation guidelines, EPA and states

may also promulgate best management practices, which

are qualitative or non-numerical effluent limitations that

are still technology-based because they are derived from

the technology standards prescribed by the CWA. 33

U.S.C. § 1251 et seq.; Waterkeeper Alliance v. EPA, 399

F.3d 486, 486 (2005); 40 C.F.R. § 122.44(k)(3). Only when

technology-based effluent limitations are insufficient

to maintain or achieve water quality standards in the

receiving water body consistent with designated uses,

does the Act require NPDES permits to include additional

water quality-based effluent limitations. 33 U.S.C. §§

1312(a), 1314(l). EPA and state regulators have the

responsibility to determine the correct mix of precise

numeric and descriptive non-numeric effluent limitations,

including any additional water quality-based effluent

limitations, that they then incorporate into NPDES

permits.

C.

Water Quality-Based Effluent Limitations Are

Triggered When Technology Limits are Not

Sufficient to Address a Specific Water Quality

Concerns

The CWA requires NPDES permits to include

additional water quality-based effluent limitations when

technology-based effluent limitations are insufficient to

11

control point source pollutant discharges to attain or

maintain water quality standards. Natural Res. Def.

Council, Inc. v. EPA (NRDC II), 808 F.3d 556, 564 (2d

Cir. 2015). Water quality-based effluent limitations are

set “based upon the amounts and kinds of pollutants in

the water in which the point source discharges” (e.g., the

receiving water.) Natural Res. Def. Council, Inc. v. EPA

(NRDC I), 822 F.2d 104, 110 (D.C. Cir. 1987).

Like technology-based effluent limitations, water

quality-based effluent limitations are incorporated into the

NPDES permit such that the permittee has notice of what

is required of them. The CWA guarantees that compliance

with the effluent limitations of a permit will be deemed

to be compliance with the CWA, even if the pollutants in

the point source discharges would reach waters already

in violation of existing water quality standards. Arkansas,

503 U.S. at 107.

D.

Incorporating Technology and Water Quality

Provisions into General Permits

Descriptive narrative effluent limitations implemented

through best management practices are a valuable tool

for regulators to protect against receiving water quality

problems, particularly where numeric limitations are

infeasible such as where point source discharges may be

associated with large land areas and sporadic or hard

to control flows. Examples include certain agricultural

enterprises, such as concentrated animal feeding

operations, and large-scale construction and municipal

stormwater management systems.

General permits are particularly reliant on the

ability to utilize descriptive narrative standards as

12

technology-based effluent limitations due to the vast

scope of the types of discharges covered and the “general”

nature of the permit. For example, EPA and states have

developed general permit programs and technology-based

effluent limitations for industrial stormwater (including

construction that disturbs 5 acres of land or greater),

small construction activities (that disturb between one

and five acres of land), small municipal separate storm

sewer systems (MS4s), certain boat or vessel discharges,

concentrated animal feeding operations, pesticide use,

and aquaculture, among others, all of which rely on

incorporating best management practices as the primary

discharge control and implementation tools. 5

In the case of regulated construction stormwater point

source discharges, EPA has promulgated categorical,

activity-specific Construction and Development effluent

limitations guidelines (C&D ELGs). See 40 C.F.R. Part

450. These ELGs require construction site operators to

implement eight different narrative “erosion and sediment

controls;” three different “pollution prevention measures;”

other narrative controls related to “dewatering,” “soil

stabilization,” and “surface outlets;” and the ELGs identify

four specific “prohibited discharges.” See 40 C.F.R. 450.21.

All of the control measures and prohibitions are specific

to certain actions, and none are generic provisions similar

to the generic narrative provisions that are the subject

of this case.

In addition to the C&D ELGs, EPA’s construction

stormwater general permit (CGP) relies upon highly

descriptive best management and good housekeeping

5. For links to all of EPA’s NPDES permits, see https://www.

epa.gov/npdes/all-npdes-program-areas.

13

practices, pollution prevention plans, visual inspections,

and annual reporting requirements to effectively address

stormwater pollutant discharges from regulated sites.

For example, EPA’s CGP includes the following types of

descriptive non-numeric permit requirements:

• Develop a Stormwater Pollution Prevention Plan

(SWPPP) and keep it up to date.

• Complete and submit a Notice of Intent (NOI) to

EPA via the NPDES eReporting Tool (NeT).

• Implement erosion and sediment controls and

pollution prevention practices throughout the

entire construction project.

• Conduc t r equ i r ed i n sp ec t ion s t o ver i f y

compliance with permit. Inspections may only

be conducted by a qualified person who has either:

(1) completed the EPA construction inspection

course and passed the exam, or (2) holds a

current construction inspection certification or

license from a program that covers the same core

material as EPA’s inspection course.

• Conduct routine maintenance and take corrective

action to fix problems with controls or discharges.

• Complete documentation of all site inspections,

dewatering inspections, and corrective actions.

• Comply with turbidity monitoring requirements

for dewatering discharges to sensitive waters (if

applicable).

14

• Comply with any State, Tribal, or territoryspecific requirements in Part 9 of the permit.6

EPA incorporates more site-specific water qualitybased effluent limitations when technology-based effluent

limitations may not fully protect the water quality of

various jurisdictional receiving waters. This process is

more difficult in general permits than in site-specific

individual permits but can be achieved without the types of

generic narrative provisions contained in San Francisco’s

individual permit. For example, EPA’s CGP incorporates

many water-body specific controls that become waterquality-based effluent limitations if a discharger has

point source discharges into any of those designated

water bodies. One specific example illustrates how the

permitting authority (here EPA) sets forth water qualitybased effluent limitations for certain federal lands in the

State of Washington (over which EPA retains permitting

authority):

Discharges to segments of waterbodies listed

as impaired by the State of Washington under

Section 303(d) of the Clean Water Act for

turbidity, fine sediment, phosphorus, or pH

must comply with the following numeric effluent

limits:

6. https://www.epa.gov/npdes/2022-construction-generalpermit-cgp

15

Parameter Parameter Unit Analytical Numeric

identified Sampled

Method

Effluent

in 303(d)

Limit

listing

•Turbidity Turbidity NTU SM2130 25 NTUs

at the

•Fine

point

Sediment

where the

stormwater

• Phosphorus

is

discharged

from the

site.

High pH

pH

su

pH meter In the

range of

6.5–8.5

[Source: https://www.epa.gov/system/files/documents/202201/2022-cgp-final-permit.pdf at 94]

E. There is an Important Overlap Between

Construction General Permits and Municipal

General Permits.

EPA’s permitting authority can be more limited than

in the CGP scenario when it attempts to apply strict water

quality-based effluent limitations. Congress specifically

directed EPA to issue permits to municipal separate

storm sewer systems (MS4s) containing “controls to

reduce the discharge of pollutants to the maximum extent

practicable (MEP), including management practices,

control techniques and system, design and engineering

methods, and such other provisions as the Administrator

16

or the State determines appropriate for the control of such

pollutants.” While Congress did not specifically define

MEP, it is clear that any requirement that forces MS4s

to meet specific water quality standards, “in addition

to” meeting the MEP exceeds EPA authority under 33

U.S.C. § 1342(p)(3)(B)(iii) that requires municipalities to

control pollutants only to MEP. See Defenders of Wildlife

v. Browner, 191 F.3d 1159 (9th Cir. 1999)(Congress did

not mandate strict compliance with state water quality

standards, but provided EPA with limited discretionary

authority contained in 33 U.S.C. § 1342(p)(3)(B)(iii)).

Furthermore, at the same time Congress developed

the MS4 permitting mandates, it also established a

permitting program for stormwater associated with

industrial activity. 33 U.S.C. § 1342(p)(3)(A). That

section provides “Permits for discharges associated with

industrial activity shall meet all applicable provisions of

this section and section 1311 of this title.” Ibid. (emphasis

added). In other words, industrial stormwater permits are

subject to more traditional NPDES permitting effluent

limitations, including both technology-based and water

quality-based permit requirements of CWA sections 301

and 304. Congress, however, used different language for

MS4 permits in section CWA 402(p)(3), limiting EPA to

the MEP standard without otherwise mandating strict

adherence to any specific effluent limitations, including

water quality based requirements.7 Therefore, the

7. Note: Even within the NPDES industrial stormwater

permit program, implementation of water-quality based effluent

limits has presented significant challenges to EPA and state

permitting authorities due to the lack of wet weather-specific

water quality criteria and the fact that the existing criteria are

dependent on steady-state, low-flow conditions not present during

storm events.

17

structure of the Act itself requires that non-numeric,

best management practices incorporated into permits

must be recognized as sufficient to meet the water quality

standards those permits are specifically designed to

protect.

MS4 NPDES permits also often require municipal

operators to control stormwater discharges from active

construction operations within the MS4’s jurisdiction.

These controls may be in addition to or as an alternative to

the construction stormwater NPDES permits required by

40 C.F.R. § 122.26(b)(14)(x) or 40 C.F.R. § 122.26(b)(15). The

potential for overlap between the CGP and the small MS4

permit programs can present some challenges for permit

writers as well as regulated parties. The NPDES general

permit for small MS4’s in Massachusetts presents a good

example of these challenges. EPA remains the permitting

authority for the Commonwealth of Massachusetts. Like

San Francisco’s permit, EPA struggled to find the proper

mix of technology-based effluent limitations and water

quality concerns and considerations when promulgating

the MS4 general permit for small MS4s in Massachusetts.

The Massachusetts small MS4 permit demonstrates

that EPA can avoid using generic “backstop” narrative

standards and instead create the type of structured

approach to protecting water quality that is clear to

the permittee, the public, and other parties such as

construction site operators. In its small MS4 permit,

EPA’s first iteration included the same narrative permit

term (“ensure discharges do not cause or contribute

to an exceedance of water quality standards”) at issue

in this case. After the permit was challenged in court

by many interested parties, EPA removed that generic

18

narrative provision and replaced it with a more precise

process for addressing water quality concerns and a

specified methodology for MS4s to follow, including

future planned actions the MS4 would take, to implement

MEP technology-based effluent limitations and still

work to minimize certain pollutant discharges that were

causing water quality problems. See Statement of Basis

for Proposed Permit Modifications8 at 4 (explaining that

EPA was replacing the permit term “ensure discharges

do not cause or contribute to an exceedance of water

quality standards” with a more precise and clear process

for reducing certain pollutant discharges to help protect

water quality).

II. ARGUMENT

A.

San Francisco’s Vague NPDES Permit Fails to

Establish Descriptive Permitting Requirements

Necessary to Achieve Compliance.

San Francisco’s NPDES permit authorizes the City

and County to operate a wastewater treatment and

collection system that serves more than 250,000 people

in western San Francisco. The permit is both complex

and unique, including discharges into the Pacific Ocean

and discharges from over 250 miles of combined sewers

under a statewide program designed to address combined

sewer overflows (CSOs). San Francisco Public Utilities

Commission, San Francisco Wastewater Long Term

Control Plan Synthesis.9 Consistent with the CWA, San

8. https://www3.epa.gov/region1/npdes/stormwater/ma/masmall-ms4-2020-mods-sob.pdf

9. San Francisco’s Long Term Control Plan is a collection

of twenty-three documents. In 2018, San Francisco prepared a

19

Francisco’s permit contained detailed effluent limitations,

including numeric and non-numeric best management

practices governing San Francisco’s complex operation

of its CSO control facility.

However, deeming those effluent limitations insufficient

for achieving constantly updated jurisdictional water

quality standards intended to protect designated uses,

EPA added two generic narrative “backstop” provisions,

including: (1) that a discharge “not cause or contribute to a

violation of any applicable water quality standard. . . .”; and

(2) that “no discharge of pollutants shall create pollution,

contamination, or nuisance as defined by California

Water Code Section 13050.” Section 13050(l)(1)(A) defines

“pollution” to include “alteration of the quality of waters

of the state . . . which unreasonably affects . . . the waters

for beneficial uses.”

These generic provisions do not represent the

specific types of technology-based effluent limitations

or the more stringent, water quality-based effluent

limitations as required by the CWA, nor do they represent

descriptive narrative permit requirements—including

“best management practices” or specific operational

requirements—when numerical effluent limitations are

not feasible. 33 U.S.C. § 1311(b)(1)(C). 40 C.F.R. §§ 122.2,

122.44(k)(3). Rather, these generic narrative provisions

directly impose the water quality standard itself on the

summary of these documents in San Francisco Wastewater Long

Term Control Plan Synthesis and submitted the Synthesis to the

Regional Water Board as part of the NPDES permitting process

for its Bayside facilities. San Francisco explained that its “process

of planning for, designing, and constructing projects to minimize

and control wet weather discharge was iterative and extended for

nearly two decades.”

20

permittee in violation of the CWA and the permitting

scheme mandated by Congress.

This approach is contrary to the revised regulatory

scheme established by the CWA, where EPA and states are

required to translate the overall water quality standards

for a given jurisdictional body of water into specific

obligations of the individual discharger, as expressed as

effluent limitations in that discharger’s NPDES permit.

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

426 U.S. 200, 205 (1976).

The Act directs regulators to use specific regulatory

tools in developing permits that ensure water quality

is protected: (1) technology-based effluent limitations

determined as best available or best practicable technology

for reducing pollutants at the source; (2) additional waterquality-based effluent limitations where technology-based

effluent limitations are insufficient to attain or maintain

water quality standards; and (3) descriptive “narrative”

effluent limitations that specify how particular activities

are to be conducted, so as to achieve compliance with the

relevant water quality standards.

The various specific effluent limitations contained in the

NPDES permit are then subject to “direct administrative

and judicial enforcement.” EPA v. California, 426 U.S. at

205. There is no provision in the CWA for imposing the

jurisdictional water’s specific water quality standards or

objectives themselves directly into a permit. Compliance

with these generic narrative provisions is impossible to

measure in a permit and threatens to return the NPDES

permit program to the ineffective pre-1972 program based

solely on unworkable water quality standards, which were

21

used to guide performance by polluters and to trigger

legal action to abate pollution. Id. at 202.

Generic narrative provisions place permittees in

a vulnerable position of not knowing up front what is

required of them to comply with their permit, at risk of

being held liable for discharging even one molecule of a

certain pollutant, regardless of the actual condition of

the receiving water, and harkens back to a permitting

program that this Court and Congress found untenable.

See App. 65 Collins, J., dissenting, “Depending on the

condition of the receiving water, any amount of discharge

of certain pollutants could “contribute” to a violation of

water quality standards.” Amici assert that such generic

narrative permit provisions are not “effluent limitations”

required by the CWA, and in fact are not permit limitations

at all, making them inappropriate for any of the various

NPDES permitting programs.

B. Generic Backstop Provisions Undermine the

Entire Purpose of NPDES Permits and Should

Not Be Allowed

Generic, narrative backstop provisions are not effluent

limitations that EPA and states are required to develop

and impose on discharges through NPDES permits. 33

U.S.C. § 1311(b)(1)(C). Rather, these non-specific backstop

provisions seek to impose the water quality standard itself

as the applicable limitation. This approach inappropriately

shifts the burden of ensuring the protection of water

quality standards and uses to the permittee, contrary to

Congress’s intent that EPA and states are best positioned

to bear that responsibility.

22

Rather, the NPDES permitting program provides

alternatives where the requirements of the permit are

found not to be sufficient. For example, NPDES permits

may be reconsidered and revised where necessary to

incorporate additional limitations and restrictions on

discharges. 40 C.F.R. § 122.62 (Modification or revocation

and reissuance of permits); 40 C.F.R. § 124.5 (Modification,

revocation and reissuance, or termination of permits).

These provisions are available to address the very

circumstances that drove EPA and the Water Quality

Board to include the backstop generic narrative provision,

including a change effluent limitations, standards or

regulations on which the permit was based or where

information was not available.

Essentially, the ability to modify, revoke and reissue

a permit eliminates the need for such backstop provisions

in any NPDES permit. Moreover, and specific to general

permits, is the inclusion of specific triggers requiring

additional monitoring, updating best management

practices and other compliance measures where additional

implementation actions are needed to help protect

water quality. Availability of these regulatory tools for

addressing water quality exceedances, or a miscalculation

in the strength of the permit, further support that there

is no place in the NPDES permitting program for generic

backstop provisions.

Such vague narrative provisions are not necessary for

water quality standards protection, are not measurable,

and are likely to lead to absurd results. For example,

while the terms “does not cause an impairment” might be

measurable, “does not contribute to an impairment” might

mean that the discharge of one molecule of a pollutant

23

might be “contributing to an impairment,” more-or-less

creating a total ban on certain pollutants even though the

water quality standards or total maximum daily loads

for the receiving stream would allow (and the stream

could assimilate) much more than a single molecule. See

Judge Collins, dissenting at 58 (Noting that in the case

of a waterbody that happens to contain pollution levels

that exceed the applicable water quality standards, the

inclusion of such a narrative condition would automatically

make unlawful any further discharges of the same

pollutant into those waters, automatically triggering

the crushing consequences that the CWA provides “even

for inadvertent violations.”) Moreover, the creation of a

complete ban on discharges is contrary to implementation

of state water quality planning tools intended to address

impaired waters while also allowing stormwater and

industrial discharges containing low levels of pollutants,

such as Total Maximum Daily Loads. See 40 C.F.R.

§ 130.7 process for addressing impaired waters through

limitations on discharges in NPDES permits.

In the CGP, such backstop or generic narrative

provisions will produce absurd results. For example, in

the CGP provisions described above that address the

303(d) protections that EPA inserted to protect certain

waters in the State of Washington, had EPA instead

mandated that regulated construction site discharges

could not cause or contribute to a water quality violation,

no construction would occur near those waters because

no site operator could remove every grain of sand or fine

sediment that would cause or contribute to the turbidity

concerns related to the 303(d) listings. Those receiving

streams already contain pre-existing and natural levels

of turbidity, making a prohibition on de minimis levels

24

of turbidity illogical and unnecessary. In that same

example, EPA set forth additional effluent limitations to

protect certain Washington State receiving waters that

it determined would help improve those waters without

prohibiting any discharge from construction sites. More

globally, no construction would occur in any watershed in

which CWA Section 303(d) listings included any pollutants

associated with any construction materials, including for

any metals, pH, pesticides, and more, if the permitting

authority used the “cannot cause or contribute to” generic

narrative backstop provision.

C.

The Ninth Circuit Decision Eliminates the

Permit Shield

Amici and all other NPDES dischargers rely heavily

on the statutory permit shield from CWA liability when

they conduct their discharging activities consistent with

their permit terms and conditions. 33 U.S.C. §§ 1342(k)

establishes that compliance with a permit shall be deemed

compliance with . . . sections 1311 (TBELs provision), 1312

(WQBELs provision), 1316 (standards of performance),

1317 (toxic and pretreatment effluent standards), 1343

(ocean discharge criteria).

The scope of the permit shield is broad. For individual

permits, the focus is on the permit and the information

provided during the application process. For general

permits, coverage includes all pollutants within the

specified scope of that particular general permit, subject

to all pollutants, notification requirements, and other

conditions. In both cases, there is a heavy reliance on the

contents of the permit and disclosures made during the

permit application process.

25

The Ninth Circuit’s opinion, allowing use of generic

backstop provisions, undermines the permitee’s ability

to understand the full scope of permit shield coverage.

These backstop provisions lack specific information in

both the permit and the information disclosures. Courts

have found that the permit shield defense is unavailable

when the permittee is not in full compliance with all the

terms of its permit. Ohio Valley Envtl. Coal Co., 845 F.3d

133 (4th Cir. 2017). When EPA and states are allowed to

incorporate generic provisions that are not clearly defined

and measurable, the permit shield does not provide a

defense. The Ninth Circuit’s decision creates a significant

vulnerability for all NPDES dischargers and undermines

the protections Congress intended when it created the

NPDES permit program. By allowing the use of generic

backstop provisions, the decision strips permittees of their

certainty and protection, exposing them to unanticipated

enforcement actions and citizen suits. This uncertainty

is detrimental not only to permittees but also to the

integrity of the regulatory framework that relies on clear,

measurable, and enforceable permit conditions.

The permit shield is a cornerstone of the CWA’s

regulatory scheme, providing essential protection and

predictability for dischargers that comply with their

permits.

26

CONCLUSION

For the foregoing reasons, the judgment below should

be reversed.

Respectfully submitted,

Jeffrey Longsworth

John A. Sheehan

Counsel of Record

K aren Bennett

Earth & Water Law LLC

1455 Pennsylvania Ave.,

N.W., Ste. 400

Washington, DC 20004

(202) 280-6362

john.sheehan@

earthandwatergroup.com

Thomas Ward

National A ssociation of

Home Builders

1201 15th Street, NW

Washington, DC 20005

Leah Pilconis

A ssociated General

Contractors of

A merica, Inc.

2300 Wilson Blvd.,

Ste. 300

Arlington, VA 22201

Prianka Sharma

A merican Road &

Transportation

Builders A ssociation

250 E. Street, SW

Ste. 900

Washington, DC 20024

Counsel for National

Association of Home

Builders

Counsel for Amicus Curiae Counsel for American

the Associated General

Road & Transportation

Contractors of America,

Builders Association

Inc.

July 26, 2024