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,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF A PPEALS FOR THE NINTH CIRCUIT

AMICUS CURIAE BRIEF OF THE LOCAL

GOVERNMENT LEGAL CENTER ET AL

IN SUPPORT OF PETITIONERS

[Additional Amici On Inside Cover]

A MANDA K ARRAS

INTERNATIONAL

MUNICIPAL LAWYERS

A SSOCIATION

51 Monroe Street

Suite 404

Rockville, MD 20850

(202) 466-5424

J.G. A NDRE MONETTE

Counsel of Record

SHAWN HAGERTY

A NA D. SCHWAB

BEST BEST & KRIEGER, LLP

1800 K Street NW

Suite 725

Washington, DC 20006

(202) 785-0600

Andre.Monette@bbklaw.com

Counsel for Amici Curiae

130107

A

(800) 274-3321 • (800) 359-6859

Additional Amici Curiae

National Association of Counties (“NACo”)

National League of Cities (“NLC”)

International Municipal Lawyers Association

(“IMLA”)

League of California Cities (“Cal Cities”)

i

TABLE OF CONTENTS

Page

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

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

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . .3

ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

I.

Cities and Counties work hard to improve

water quality and protect the health and

safety of their residents . . . . . . . . . . . . . . . . . . . . .6

II. Generic “cause or contribute” prohibitions

are inconsistent with the structure of the

CWA and undermine efforts to address

clean water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

III. Generic prohibitions violate the CWA

because they do not comply with the

requirement for establishing narrative

or numeric water quality based effluent

limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

IV. Generic prohibitions are arbitrary and

limit the ability of Cities and Counties

to prioritize projects . . . . . . . . . . . . . . . . . . . . . . .20

ii

Table of Contents

Page

A. G ene r ic “c au s e or c ont r i but e ”

prohibitions are arbitrary and raise

serious questions of due process . . . . . . . . .20

B. Enforcement actions (by EPA and

citizens groups) cost time and money

that could be di rect ed to clean

water . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

iii

TABLE OF CITED AUTHORITIES

Page

FEDERAL CASES

Bos. Beer Co. v. Massachusetts,

97 U.S. 25 (1877). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

City & Cnty. of San Francisco v. EPA,

75 F.4th 1074 (9th Cir. 2023) . . . . . . . . . . . . . . . . . . .7, 8

City of Milwaukee v. Illinois,

451 U.S. 304 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . .10

Cnty. of Maui v. Hawaii Wildlife Fund,

590 U.S. 165 (2020). . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

Def. of Wildlife v. Browner,

191 F.3d 1159 (9th Cir. 1999) . . . . . . . . . . . . . . . . . . . .13

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

430 U.S. 112 (1977). . . . . . . . . . . . . . . . . . . . . . . . . 11, 16

EPA v. California ex rel. State Water Res.

Control Bd.,

426 U.S. 200, 202 (1976). . . . . . . . . . . . . . . 10, 11, 16, 17

Gill v. LDI,

19 F.Supp.2d 1188 (W.D. Wash. 1998) . . . . . . . . .15, 23

Los Angeles Cnty. Flood Control Dist. v.

Nat. Res. Def. Council,

568 U.S. 78 (2013) . . . . . . . . . . . . . . . . . . . . . . .13, 15, 23

iv

Cited Authorities

Page

Nat. Res. Def. Council v. Cnty. of Los Angeles,

725 F.3d 1194 (9th Cir. 2013). . . . . . . . . . . . . . . . .13, 14

Nat. Res. Def. Council v. EPA,

808 F.3d 556 (2d Cir. 2015) . . . . . . . . . . . . . . . . . . . . .15

Nat. Res. Def. Council v. EPA,

822 F.2d 104 (D.C. Cir. 1987) . . . . . . . . . . . . . . . . . . . 17

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

Reclamation Dist. of Greater Chicago,

175 F.Supp.3d 1041 (N.D. Ill. 2016) . . . . . . . . . . . . . .22

New Orleans Gaslight Co. v. Drainage Comm’n,

197 U.S. 453 (1905). . . . . . . . . . . . . . . . . . . . . . . . . . . . .7

Nw. Env’t Advocs. v. City of Medford,

2021 WL 2673126 (D. Or. July 9, 2021) . . . . . . . . . . .23

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

56 F.3d 979 (9th Cir. 1995) . . . . . . . . . . . . . . . . . .15, 23

Our Children’s Earth Found. v. EPA,

527 F.3d 842 (9th Cir. 2008) . . . . . . . . . . . . . . . . . 11, 16

Piney Run Pres. Ass’n v.

Cnty. Comm’rs of Carroll Cnty.,

268 F.3d 255 (4th Cir. 2001). . . . . . . . . . . . . . . . . . . . .23

Rapanos v. United States,

547 U.S. 715 (2006). . . . . . . . . . . . . . . . . . . . . . . . . . . .19

v

Cited Authorities

Page

Sackett v. EPA,

566 U.S. 120 (2012). . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Sackett v. EPA,

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

S.F. Baykeeper v. City of Sunnyvale,

No. 5:20-CV-00824-EJD, 2020 WL 7696078

(N.D. Cal. Dec. 28, 2020) . . . . . . . . . . . . . . . . . . . . . . .23

U.S. Army Corps of Eng’rs v. Hawkes Co.,

578 U.S. 590 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

Waterkeeper Alliance v. EPA,

399 F.3d 486 (2d Cir. 2005) . . . . . . . . . . . . . . . 11, 16, 17

FEDERAL STATUTES

33 U.S.C. § 1160(c)(5) (1970) . . . . . . . . . . . . . . . . . . . .12, 17

33 U.S.C. § 1251 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 7

33 U.S.C. § 1251(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16

33 U.S.C. § 1311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 5, 16

33 U.S.C. § 1311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11

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

33 U.S.C. § 1311(b)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . .16

vi

Cited Authorities

Page

33 U.S.C. § 1311(b)(2)(C) . . . . . . . . . . . . . . . . . . . . . . . . . . .5

33 U.S.C. § 1313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

33 U.S.C. § 1313(c)(2)(A) . . . . . . . . . . . . . . . . . . . . . . . . . .20

33 U.S.C. § 1313(c)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

33 U.S.C. § 1319 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

33 U.S.C. § 1342 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 7

33 U.S.C. § 1342(a)(2) . . . . . . . . . . . . . . . . . . . .5, 20, 21, 24

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

33 U.S.C. § 1342(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . .9, 24

33 U.S.C. § 1342(p)(3)(B). . . . . . . . . . . . . . . . . . . . . . . . . .13

33 U.S.C. § 1362(11). . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 17

33 U.S.C. § 1365 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

REGULATIONS

40 C.F.R. § 122 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . .4, 7

40 C.F.R. § 122.44(a)(1) (2024) . . . . . . . . . . . . . . . . . . . . .16

vii

Cited Authorities

Page

40 C.F.R. § 122.44(b)(1) (2024) . . . . . . . . . . . . . . . . . . . . . .4

40 C.F.R. § 122.44(d) (2024) . . . . . . . . . . . . . . . . . . . . . . . 17

40 C.F.R. § 122.44(d)(1)(i) (2024) . . . . . . . . . . . . . . . . . . . 17

40 C.F.R. § 122.44(d)(1)(vii)(A) (2024) . . . . . . . . . . . . . . .16

40 C.F.R. § 122.44(k)(3) (2024) . . . . . . . . . . . . . . . . . . . . . .6

OTHER AUTHORITIES

California Regional Water Quality Control Board Los

Angeles Region, Los Angeles River Watershed

Total Maximum Daily Load (July 15, 2010) . . . . . .14

Countywide Large Diameter Tunnels for

Stormwater Conveyance, Harris County Flood

Control District, https://www.hcfcd.org/Z-08

(last visited July 19, 2024) . . . . . . . . . . . . . . . . . . . . . . .8

DC Water’s Potomac River Tunnel Project, DC

Water, https://w w w.dcwater.com/projects/

potomac-river-tunnel-project (last visited

July 19, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8

EPA, EPA-820-R-15-001, A Framework for

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for Development of Site-Specific Natural

Ba ckground Aquatic Life Cr iter ia for

Temperature, Dissolved Oxygen, and pH:

Interim Document (Feb. 2015) . . . . . . . . . . . . . . . . .14

viii

Cited Authorities

Page

EPA , EPA- 8 3 3 -K-10 - 0 01, NPDES Per mit

Writers’ Manual (2010) . . . . . . . . . . . . . . . . . . . . . . . . 17

EPA, Metropolitan Water Reclamation District

of Greater Chicago Settlement (Dec. 14,

2011), https://w w w.epa.gov/enforcement/

metropolitan-water-reclamation-districtgreater-chicago-settlement . . . . . . . . . . . . . . . . . . . .22

Federal Water Pollution Control Act Amendments

of 1972, Pub. L. No. 92-500, § 101(a), 86 Stat.

816 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6, 9, 12, 16

Jeffrey M. Gamba, Generally Illegal: NPDES

General Permits Under the Clean Water Act,

31 Harv. Env’t L. Rev. 410, 441 (2007) . . . . . . . . . . . .12

Kyriaki Remoundou & Phoebe Koundouri,

Environmental Effects on Public Health:

An Economic Perspective, Int. J. Environ.

Res. Public Health (Aug. 2009), https://www.

ncbi.nlm.nih.gov/pmc/articles/PMC2738880/. . . . . . . .7

Pure Water Southern California, The Metro.

Water Dist. of S. Cal. https://www.mwdh2o.

com / building-local-supplies/pure-watersouthern-california/ . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

S. Rep. No. 92-414, at 5 (1971), as reprinted

in 1972 U.S.C.C.A.N. 3668 . . . . . . . . . . . . . . . . . . . . .16

ix

Cited Authorities

Page

SWIFT – Sustainable Water Initiative for

Tomorrow, Hampton Rds. Sanitation Dist.,

https://w w w.hrsd.com /sw ift (last visited

July 19, 2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

1

INTERESTS OF AMICI CURIAE1

The Local Government Legal Center (“LGLC”) is

a coalition of national local government organizations

formed in 2023 to provide education to local governments

regarding the Supreme Court and its impact on local

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government positions at the Supreme Court in appropriate

cases. The National Association of Counties, the National

League of Cities, and the International Municipal Lawyers

Association are the founding members of the LGLC.

The National Association of Counties (“NACo”) is

the only national association that represents county

governments in the United States. NACo serves as an

advocate for county government and works to ensure that

counties have the resources, skills and support needed

to successfully lead their communities. NACo’s members

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the nation’s 3,069 counties.

The National League of Cities (“NLC”) is the voice of

America’s cities, towns and villages, representing more

than 200 million people. NLC works to strengthen local

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solutions.

The International Municipal Lawyers Association

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

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Amici Curaie, their members or their counsel, made any monetary

contribution intended to fund the preparation or submission of

this brief.

2

than 3,000 local government entities, including cities,

counties, and special districts. IMLA’s mission is to

advance responsible development of municipal law through

education and advocacy.

The League of California Cities (“Cal Cities”) is an

association of 475 California cities dedicated to protecting

and restoring local control to provide for the public health,

safety, and welfare of their residents, and to enhancing

the quality of life for all Californians. Cal Cities is advised

by its Legal Advocacy Committee, comprised of 25 city

attorneys from all regions of the state. The Committee

monitors litigation of concern to municipalities and

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Amici’s members own and operate infrastructure that

provides for drinking water, water supply, wastewater

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Their primary focus is the protection of public health and

safety. This includes managing the relationship between a

clean environment and public health and helping to ensure

that the oceans, rivers, and streams in their communities

are safe for public use.

Many of Amici’s members operate National Pollutant

Discharge Elimination System (“NPDES”) permits

that contain the types of generic prohibitions at issue

in this case. Amici have a strong interest in ensuring

that their members’ existing and planned water quality

infrastructure will be free from inappropriate application

3

of the Clean Water Act. Moreover, Amici’s members

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Amici submit this brief to ensure that those efforts will not

be inhibited by a NPDES permit with vague and generic

prohibitions that call on Amici to not “cause or contribute”

to violations of any water quality standards, rather than

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limit, either in a numerical or narrative form. Further,

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ensure the NPDES permit is clear and unambiguous so

as to assure compliance.

SUMMARY OF ARGUMENT

EPA and authorized states2 regularly issue permits

under the Clean Water Act (“CWA”) that improperly

and generically prohibit any discharges that “cause or

contribute” to a violation of any water quality standard.

This use of generic and vague prohibitions exposes Amici’s

members to open ended civil and criminal liability, and

undermines their ability to invest in projects that improve

water quality. This pattern and practice by EPA has

profound implications for public utilities nation-wide.

Most importantly, use of generic prohibitions has created

uncertainty and lack of notice both as to whether a

violation has occurred and as to what steps a permit holder

2. The Clean Water Act grants responsibility to the EPA and

states with whom the EPA authorizes to grant NPDES permits.

See 33 U.S.C. § 1342(b). Both EPA and authorized states undertake

the practice of issuing NPDES permits. Throughout this brief

Amici refers to EPA, as a matter of streamlining the discussion

before the Court.

4

must take to avoid violating their permit. This is because

achieving compliance with these generic prohibitions

depends on conditions in the waterway that receives the

discharge, not on actions that the discharger can control

directly. The conditions in the waterway at-large may

change and are subject to the actions of others, including

natural conditions that can fluctuate with time. This

pattern and practice in certain cases effectively creates

a “one molecule” rule—that is, any amount of a pollutant

discharged into a water body that is not attaining water

quality standards can be a permit violation.

As a result of this pattern and practice, Amici’s

members cannot make prudent and fully informed

decisions about what water quality infrastructure to

invest in because no amount of pollution control can fully

protect them from liability based on instream conditions

created by other dischargers in the watershed (including

Mother Nature). These generic prohibitions are also easy

targets for citizen suits, which can allow third-parties to

divert clean water agencies from their long-term plans

and ultimately distract from the achievement of water

quality goals.

Congress addressed instream water quality control

by creating the NPDES permitting program in 1972. 33

U.S.C. § 1251; 33 U.S.C. § 1342; 40 C.F.R. § 122 (2024).

The CWA requires any person discharging pollutants

into waters of the United States, from a point source,

to obtain a NPDES permit. 33 U.S.C. § 1311; 40 C.F.R.

§ 122(b)(1) (2024). The CWA protects waters that receive

those discharges (the “receiving waters”) by requiring

5

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technology-based, or, if needed, water quality based.

33 U.S.C. § 1362(11). The CWA and its implementing

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needed and for developing and implementing them. 33

U.S.C. § 1311(b)(1)(C). EPA has circumvented that process

by inserting these generic, “catch all” prohibitions into

NPDES permits nationwide.

Worse, the generic prohibitions impose an entirely

arbitrary compliance standard that leaves Amici’s

members without notice as to what is required for

compliance and potentially liable for the actions of other

dischargers in a watershed. The generic prohibitions

disregard the clear obligation EPA has to ensure NPDES

permit terms are clear so as to “assure compliance” by

the permittee. 33 U.S.C. § 1342(a)(2). Importantly, Amici

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limitations are a critical part of NPDES permits and are

the preferred method in many circumstances, especially

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However, the pattern and practice of EPA of including

the types of generic prohibitions at issue in this case

in NPDES permits violates the CWA in a manner that

puts Amici’s members at risk, which in turn inhibits

their ability to invest in projects that will protect the

environment. Furthermore, the use of generic prohibitions

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numerical or narrative form, on the discharger’s point

source, as required by the law. See 33 U.S.C. § 1311; 33

U.S.C. § 1362(11). Instead, these generic prohibitions

6

over generalize the water quality of the receiving waters

as a whole, directly contrary to the intention of Congress

and the statute. Federal Water Pollution Control Act

Amendments of 1972 (“FWPCA”), Pub. L. No. 92-500,

§ 101(a), 86 Stat. 816; 40 C.F.R. § 122.44(k)(3) (2024).

Amici request that the Court hold that EPA is

prohibited from issuing permits that circumvent the

plain text of the CWA, its implementing regulations,

and EPA’s own policies and permit writing manuals.

These vague, “catch all” prohibitions are unclear, and

incapable of being complied with due to the lack of an

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being incorporated into the NPDES permit. Coupled with

the “potent weapon” that is the CWA and its enforcement

regime, these generic prohibitions improperly expose

cities and counties to administrative, civil, and criminal

penalties without aiding in the effort to improve water

quality.

ARGUMENT

I.

Cities and Counties work hard to improve water

quality and protect the health and safety of their

residents.

The primary purpose of a local government is to

provide for the health and safety of its citizens. Bos. Beer

Co. v. Massachusetts, 97 U.S. 25, 33 (1877) (“Whatever

differences of opinion may exist as to the extent and

boundaries of the police power . . . there seems to be no

doubt that it does extend to the protection of the lives,

health, and property of the citizens”).

7

Among the most important responsibility of cities and

counties is ensuring that there is basic sanitation in the

forms of reliable drinking water, sewage treatment, and

ÁRRGFRQWUROSee New Orleans Gaslight Co. v. Drainage

Comm’n, 197 U.S. 453, 460 (1905) (“The drainage of a city

in the interest of the public health and welfare is one of

the most important purposes for which the police power

can be exercised”).

When operating correctly, these systems manage

the full range of the hydrologic cycle and protect the

public from catastrophic flooding, illness, and death.

They also help minimize the impacts of human activity on

the environment because a failing environment is also a

danger to public health. 33 U.S.C. § 1251; 33 U.S.C. § 1342;

40 C.F.R. § 122 (2024); See also Kyriaki Remoundou &

Phoebe Koundouri, Environmental Effects on Public

Health: An Economic Perspective, Int. J. Environ. Res.

Public Health (Aug., 2009), https://www.ncbi.nlm.nih.gov/

pmc/articles/PMC2738880/.

Cities and counties take these responsibilities seriously

and invest heavily in the infrastructure necessary to

maintain appropriate levels of sanitation. This case is

illustrative. The City and County of San Francisco spent

more than $2 billion (in 2017 dollars) implementing an

integrated plan for wastewater management, and another

$7 billion implementing a Sewer System Improvement

Program, a 20-year initiative to enhance the reliability and

performance of its wastewater system. City & Cnty. of San

Francisco v. EPA, 75 F.4th 1074, 1084 (9th Cir. 2023); See

also Excerpts of Record (ER) at 4-ER-964, City & Cnty.

of San Francisco v. EPA, 75 F.4th at 1074 (9th Cir. 2023)

(No. 21-70282). Each of these investments continued to

8

enhance the City and County’s system to handle sludge at

their Oceanside Water Pollution Control Plant, upgrades

to the Westside pump station, and construction of a

water recycling project. Id. In addition to the physical

construction undertaken, the City and County performed

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to public beaches.” Id.

Local governments across the country are making

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DC Water is spending more than $800 million constructing

a tunnel which will reduce CSO discharges directly into

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CSOs to DC Water’s wastewater treatment plant. DC

Water’s Potomac River Tunnel Project, DC Water, https://

www.dcwater.com/projects/potomac-river-tunnel-project

(last visited July 19, 2024). Harris County, Texas, intends

to spend approximately $20 million studying the feasibility

of a similar project. Countywide Large Diameter Tunnels

for Stormwater Conveyance, Harris County Flood Control

District, https://www.hcfcd.org/Z-08 (last visited July 19,

2024).

Other agencies are spending billions to reduce

their reliance on the need to discharge wastewater by

investing in recycled water projects. Examples include

the partnership between the Metropolitan Water District

of Southern California and the Los Angeles County

Sanitation Districts, which will invest more than $8 billion

in a recycled water project to serve the greater Los Angeles

area and the Hampton Roads Sanitary District’s SWIFT

project, which will invest approximately $2.5 billion to

take highly treated wastewater and add it to the Potomac

9

Aquifer, the primary source of groundwater throughout

eastern Virginia. Pure Water Southern California, The

Metro. Water Dist. of S. Cal., https://www.mwdh2o.com/

building-local-supplies/pure-water-southern-california/

(last visited July 19, 2024); SWIFT – Sustainable Water

Initiative for Tomorrow, Hampton Rds. Sanitation Dist.,

https://www.hrsd.com/swift (last visited July 19, 2024).

Local governments are making these investments

because it protects the health and safety of their residents

and ensures compliance with the CWA. Congress’ intention

when creating the NPDES permitting program was “to

restore and maintain . . . the Nation’s waters.” FWPCA

§ 101(a), 86 Stat. 816; Cnty. of Maui v. Hawaii Wildlife

Fund, 590 U.S. 165, 170 (2020). The CWA is structured

to provide an enforcement shield for dischargers who

implement projects and control their discharges in

accordance with applicable permit requirements. 33

U.S.C. § 1342(k). Investments made to attain compliance

are rewarded with certainty regarding enforcement.

Unfortunately, EPA’s pattern and practice of issuing

permits with generic prohibitions has removed that

protection and exposed cities, counties, and public utilities

to enforcement actions regardless of how much they invest.

The investments and dedication made by local

governments to comply with their NPDES permits

requires time and money and allows the local governments

to uphold the Congressional intent of the CWA. Because

generic prohibitions—like the ones issued by EPA in this

case—undermine the CWA’s permit shield, they stand

in the way of prudent CWA investments and planning

by local governments, and thereby fail to implement

10

the intention of Congress with regards to the NPDES

permitting program.

II. Generic “cause or contribute” prohibitions are

inconsistent with the structure of the CWA and

undermine efforts to address clean water.

What is commonly referred to as the “Clean Water

Act” is the result of a complete rewriting in 1972 of the

FWPCA. FWPCA § 101(a), 86 Stat. 816; City of Milwaukee

v. Illinois, 451 U.S. 304, 317 (1981). The regulatory shift

that occurred in 1972 was dramatic. The 1972 amendments

underscore why generic “cause or contribute” prohibitions

are fundamentally inconsistent with the structure of the

CWA.

First enacted in 1948, the initial version of the

FWPCA—like these generic prohibitions by EPA at

hand—focused on receiving water conditions rather than

conditions that each discharger could control. The 1948

FWPCA “employed ambient water quality standards

specifying the acceptable levels of pollution in a State’s

interstate navigable waters as the primary mechanism

in its program for the control of water pollution.” EPA

v. California ex rel. State Water Res. Control Bd., 426

U.S. 200, 202 (1976). This resulted in a confusing system

which did not specify the obligations of each individual

discharger, but instead relied on conditions in the

receiving water to which a discharger, as well as others,

was somehow obligated to “collectively conform.” Id. at

204-05. This receiving water-based structure made it

´YHU\GLIÀFXOWWRGHYHORSDQGHQIRUFHVWDQGDUGVWRJRYHUQ

the conduct of individual polluters” and instead required

backwards enforcement by starting from an “over polluted

11

body of water to determine which point sources are

responsible . . .” Id. at 202, 204.

In sharp contrast to the previous receiving waterbased approach, the 1972 amendments to the CWA focused

on regulating the specific “obligations” of individual

dischargers to meet certain requirements or to take

FHUWDLQVSHFLÀFDFWLRQVDWWKHSRLQWRIGLVFKDUJHWRFRQWURO

the quality of the water leaving their system. FWPCA

§ 101(a), 86 Stat. 816.

The CWA amendments established the NPDES

permitting program, which prohibits the discharge of

any pollutant unless that discharge conforms with the

terms and conditions of a permit that allows the discharge

to occur. See 33 U.S.C. § 1311(a). NPDES permits

specify what a permit holder’s discharges must meet

LQ RUGHU WR EH LQ FRPSOLDQFH 7KLV LQFOXGHV LQ WKH ÀUVW

LQVWDQFH´WHFKQRORJ\EDVHGµHIÁXHQWOLPLWDWLRQVWKDWDUH

determined according to the best available or practicable

technology for reducing pollution at the point of discharge.

E.I. du Pont de Nemours v. Train, 430 U.S. 112, 121

(1977); Our Children’s Earth Found. v. EPA 527 F.3d

842, 848 (9th Cir. 2008); Waterkeeper Alliance. v. EPA,

399 F.3d 486, 491 (2d Cir. 2005). Only when technologyEDVHGOLPLWVDORQHDUHLQVXIÀFLHQW13'(6SHUPLWVDOVR

LQFOXGH FHUWDLQ ZDWHU TXDOLW\EDVHG HIÁXHQW OLPLWDWLRQV

GHULYHG LQ D VSHFLÀF PDQQHU WKDW LV GLFWDWHG E\ (3$

regulations and policies. Although water quality-based

HIÁXHQWOLPLWDWLRQVPD\EHLQDQDUUDWLYHIRUPWKH\VWLOO

focus on the controllable actions of the individual discharge

so that the means of compliance are clear and enforceable.

33 U.S.C. § 1311(b).

12

A generic prohibition to not “cause or contribute”

to a water quality violation in the receiving water is

fundamentally at odds with the structural shift represented

in the enactment of the 1972 amendments to the CWA.

&RQJUHVVDPHQGHGWKH&:$LQWRVSHFLÀFDOO\PRYH

away from permit holders being directly responsible for

the water quality standards of the receiving waters and

instead moving to make each permit holder responsible

IRUWKHLURZQGLVFKDUJHVDQGHQVXULQJWKH\PHHWHIÁXHQW

limitations set forth in the permit. FWPCA § 101(a), 86

Stat. 816. Congress’s intent to eliminate the focus on the

type of water quality-based approach represented by

the FWPCA could not be clearer. In fact, it expressly

repealed the “causing or contributing” language included

LQWKH):3&$IRUWKHGLVFKDUJHUVSHFLÀFDSSURDFK

contained in the CWA. See 33 U.S.C. § 1160(c)(5) (1970).

The pattern and practice of using generic prohibitions

is thus expressly contrary to Congress’s intent. Generic

prohibitions do not tell an individual discharger how

they need to control their discharges to comply with

their permits. The effect of generic prohibitions is that

individual dischargers are held jointly and severally

responsible for the condition of receiving waters regardless

of their individual actions or contribution. Cities, counties,

and public utilities are left spending resources chasing

unnecessary and, in some cases, impossible goals that

they cannot achieve. 3

3. This is a particularly pernicious problem when these

generic prohibitions are included in general NPDES permits. See

Jeffrey M. Gamba, Generally Illegal: NPDES General Permits

Under the Clean Water Act, 31 Harv. Env’t L. Rev. 410, 441

(2007). It is also entirely inconsistent with the CWA’s regulatory

approach to municipal stormwater NPDES permits, which

13

This Court’s decision in Los Angeles Cnty. Flood

Control Dist. v. Nat. Res. Def. Council, 568 U.S. 78 (2013),

DQGLWVDIWHUPDWKLOOXVWUDWHVWKHYHU\VLJQLÀFDQWSUREOHP

with this approach and shows why and how this approach

can undermine clean water efforts. The case was initiated

over allegations that the Los Angeles County Flood

Control District was violating permit prohibitions that are

identical to those at issue in the instant case—a generic

prohibition on discharges from the County’s stormwater

collection system (“MS4”) “that cause or contribute to the

violation of the water quality standards or water quality

objectives.” Nat. Res. Def. Council v. Cnty. of Los Angeles,

725 F.3d 1194, 1199 (9th Cir. 2013).

The County was required to assess compliance at

monitoring stations within the Los Angeles and San

Gabriel Rivers. The Ninth Circuit held that pollution

levels within the rivers as measured at the monitoring

stations established a violation of the County’s generic

prohibition. In a unanimous decision, this Court reversed

DQGUHPDQGHGRQWKHJURXQGVWKDWÁRZVZLWKLQWKHULYHUV

did not constitute a discharge. Los Angeles Cnty. Flood

Control Dist. 568 U.S. at 83.

Despite this Court’s reversal, on remand, the Ninth

Circuit relied on the same generic “cause or contribute”

language to hold the County responsible for the conditions

in the Los Angeles and San Gabriel Rivers. The Ninth

Circuit reasoned as follows:

employs a “maximum extent practicable” standard that does not

require strict compliance with water quality standards. 33 U.S.C.

§ 1342(p)(3)(B); Def. of Wildlife v. Browner, 191 F.3d 1159, 1165-66

(9th Cir. 1999).

14

If the District’s monitoring data shows that the

level of pollutants in federally protected water

bodies exceeds those allowed under the Permit,

then, as a matter of permit construction, the

monitoring data conclusively demonstrate that

the County Defendants are not “in compliance”

with the Permit conditions. Thus, the County

Defendants are liable for Permit violations.

Nat. Res. Def. Council, 725 F.3d at 1206-07.

The effect of the decision has been dramatic. The

County of Los Angeles is now responsible for ensuring

that the bacteria levels in the Los Angeles and San

Gabriel Rivers are low enough to safely allow full body

immersion, regardless of the fact that the Rivers are

fenced and channelized, and public access is prohibited.4

If the Rivers do not meet this standard, the County

can be found to be in violation the CWA—even if the

primary source of pollution is another discharger or

natural conditions in the environment. 5 To avoid that

4. California Regional Water Quality Control Board Los

Angeles Region, Los Angeles River Watershed Total Maximum

Daily Load, 16 (July 15, 2010). Pursuant to this designation, the

River must have bacteria levels that are low enough to allow for

full body immersion. Id. at 4.

5. Water quality standards often have questionable technical

accuracy and/or feasibility. For example, water quality standards

apply even if the source of pollution is naturally occurring. EPA,

EPA-820-R-15-001, $)UDPHZRUNIRU'HÀQLQJDQG'RFXPHQWLQJ

1DWXUDO &RQGLWLRQV IRU 'HYHORSPHQW RI 6LWH6SHFLÀF 1DWXUDO

Background Aquatic Life Criteria for Temperature, Dissolved

Oxygen, and pH: Interim Document (Feb. 2015), describes the

options for a state to go through to account for naturally occurring

15

outcome, the County is spending more than $1.5 billion

WRDGGUHVVEDFWHULDOHYHOVLQÁRRGFRQWUROFKDQQHOVWKDW

will never be used by the general public. See Los Angeles

River Watershed Total Maximum Daily Load, supra at

81. Those resources could be dedicated to projects and

LQIUDVWUXFWXUH WKDW ZLOO SURYLGH JUHDWHU EHQHÀW WR WKH

human and natural environment.

The Los Angeles County example is not unique, nor is

the issue limited to California. See Nw. Env’t Advocates v.

City of Portland, 56 F.3d 979, 990 (9th Cir. 1995) (allowing

for direct citizen enforcement of water quality standards

against a discharger based on a generic prohibition);

Gill v. LDI, 19 F.Supp.2d 1188, 1195 (W.D. Wash. 1998)

(granting summary judgment to plaintiffs in a citizen

suit action based on a generic prohibition); Nat. Res. Def.

Council v. EPA, 808 F.3d 556, 562 (2d Cir. 2015) (rejecting

EPA’s inclusion of such a generic prohibition.). Of course,

the Court need look no further than the facts of this case.

Petitioner is spending substantial public funds chasing a

vague and ever-changing standard.

The cost of compliance with these generic prohibitions

LVVLJQLÀFDQWDQGRSHQHQGHGDQGFDXVHVFLWLHVFRXQWLHV

DQGSXEOLFXWLOLWLHVWRVSHQGVLJQLÀFDQWVXPVRIPRQH\LQ

some cases billions of dollars on infrastructure projects

that may not improve the environment. The approach is

fundamentally at odds with the basic structure of the

CWA, and should be rejected.

pollutants. If the cause of the elevated levels of “natural” pollutants

can be attributed to human activity at all, then the corresponding

water quality criteria cannot be set to “natural” background levels.

16

III. Generic prohibitions violate the CWA because they

do not comply with the requirement for establishing

QDUUDWLYHRUQXPHULFZDWHUTXDOLW\EDVHGHIÁXHQW

limitations.

The CWA is an end-of-pipe based statute that focuses in

WKHÀUVWLQVWDQFHRQWHFKQRORJ\EDVHGHIÁXHQWOLPLWDWLRQV

DQGLIWKRVHDORQHDUHLQVXIÀFLHQWZDWHUTXDOLW\EDVHG

HIÁXHQWOLPLWDWLRQV86&† 1311(b)(2)(A). Instead of

focusing on broad impacts to receiving waters, Congress

created a process through which NPDES permits could be

tailored to control impacts by individual discharger using

technology-based and, if necessary, on water quality-based

HIÁXHQW OLPLWDWLRQV GHULYHG LQ D YHU\ VSHFLÀF PDQQHU

FWPCA § 101(a), 86 Stat. 816; 33 U.S.C. § 1311. In the way

intended and set forth by Congress, each discharger is

DZDUHRILWVVSHFLÀFREOLJDWLRQVDQGSDUDPHWHUVDQGLVIUHH

to focus on its individual efforts to meet those obligations.

33 U.S.C. § 1251(a); EPA v. California ex rel. State Water

Res. Control Bd., 426 U.S. at 203 (citing S. Rep. No. 92414, at 5 (1971), as reprinted in 1972 U.S.C.C.A.N. 3668.

The CWA mandates that all NPDES permits include

WHFKQRORJ\EDVHG HIÁXHQW OLPLWDWLRQV WKDW UHJXODWH WKH

PHDQV RI WUHDWPHQW DQG VSHFLÀF SROOXWLRQV  86&

§ 1311(b)(2)(A); 40 C.F.R. § 122.44(a)(1) (2024). The CWA

DOVRPDQGDWHVWKHLQFOXVLRQRIZDWHUTXDOLW\EDVHGHIÁXHQW

limitations to ensure that receiving waters can attain

applicable standards, if technology-based limitations

DORQH DUH LQVXIÀFLHQW  &)5 † 122.44(d)(1)(vii)(A)

(2024); E.I. du Pont de Nemours, 430 U.S. at 121; Our

Children’s Earth Found., 527 F.3d at 848; Waterkeeper

All., 399 F.3d at 491.

17

EPA regulations and policies set forth in its permit

writing manuals describe in detail how water qualityEDVHG HIÁXHQW OLPLWDWLRQV DUH WR EH LQFRUSRUDWHG LQWR

NPDES permits. 40 C.F.R. § 122.44(d) (2024)6; See also

EPA, EPA-833-K-10-001, NPDES Permit Writers’ Manual

(2010). This process requires a detailed assessment of “the

amounts and kinds of pollutants in the water in which the

point source discharges.” Nat. Res. Def. Council v. EPA,

822 F.2d 104, 110 (D.C. Cir. 1987). Through this process,

VSHFLÀF HIÁXHQW OLPLWDWLRQV WKDW DUH GHVLJQHG WR KHOS

DFKLHYHVSHFLÀFZDWHUTXDOLW\VWDQGDUGVDUHGHYHORSHG

Standards can be numeric or narrative. In either case,

WKH HIÁXHQW OLPLWDWLRQV PXVW EH VSHFLÀF DQG GHVFULEH

the particular activities or results to ensure the permit

KROGHU·VGLVFKDUJHVPHHWWKHHIÁXHQWOLPLWDWLRQVDQGZKDW

PXVWEHVDWLVÀHGLQRUGHUWRDFKLHYHFRPSOLDQFHSee 33

U.S.C. § 1362(11); EPA v. California, 426 U.S. at 204-05.

The EPA has a duty and obligation to see that permits

can “ensure that every discharge of pollutants will comply

ZLWK DOO DSSOLFDEOH HIÁXHQW OLPLWDWLRQV DQG VWDQGDUGVµ

Waterkeeper All., 399 F.3d at 498 (emphasis in original).

6. The “cause or contribute” language in the generic

prohibitions appears to have its origins in this regulation, but its

use in the generic prohibitions is contrary to its original intent and

purpose. 40 C.F.R. § 122.44(d)(1)(i) (2024) requires consideration

of water quality based requirements when the permitting agency

determines based on evidence that a discharge has “the reasonable

potential to cause, or contribute to an excursion above a narrative

or numeric criteria . . .” Thus, even before a water quality based

HIÁXHQWOLPLWLVGHYHORSHGWKHUHQHHGVWREHDYHU\IDFWVSHFLÀF

analysis of the nature of the discharge and the nature of the

receiving water. The generic prohibitions ignore this requirement

and essentially resurrect the “causing or contributing” language

that Congress repealed in the FWPCA. See 33 U.S.C. § 1160(c)(5).

18

The pattern and practice of EPA, to impose generic

prohibitions against “causing or contributing” to “any

water quality standard violation” ignores the detailed

requirements that must be employed to derive numeric

RU QDUUDWLYH HIÁXHQW OLPLWDWLRQV IURP LQGLYLGXDO ZDWHU

quality standards. They are simply dropped into permits

as a catch-all prohibition and provide zero guidance on how

an individual permit holder must control their discharge,

leaving the permit holder unable to determine what will

allow them to meet compliance for their permit terms.7

Worse, the generic prohibitions do not account for existing

conditions of a receiving water. A blanket prohibition

will hold one discharger liable for discharges into a

water body even if the primary cause of the exceedance

is another discharger or naturally occurring conditions.

If Congress had intended for a single discharger to be

responsible for the pollution by many, Congress would

not have undertaken the arduous task of amending the

CWA in 1972.

Nitrogen and phosphorous provide one example of this

dynamic. They are common ingredients in fertilizers and

in runoff from animal feeding operations. When it rains,

high levels of these pollutants can be washed into surface

waters. Further downstream, a wastewater treatment

SODQWPD\GLVFKDUJHWUHDWHGHIÁXHQWLQWRWKHVDPHVWUHDP

Nitrogen and phosphorous are also commonly present

in treated wastewater. If the agricultural runoff causes

levels in the stream to exceed applicable standards,

the generic prohibitions would prevent the wastewater

7. As the Brief for Petitioner explains in detail, the

one purported basis for the authority to impose the generic

prohibitions—Section 301(b)(1)(C) of the CWA—does not authorize

this approach.

19

WUHDWPHQW SODQW IURP GLVFKDUJLQJ DQ\ HIÁXHQW LQWR WKH

stream. That would not be possible without ceasing all

sewage deliveries to the plant, which would prevent all

use of the sewage system.

That is not a feasible outcome, and the CWA deals

ZLWKWKLVVFHQDULRE\PDQGDWLQJHIÁXHQWOLPLWVWRLPSRVH

GLVFKDUJHUVSHFLÀFUHTXLUHPHQWV'LVFKDUJHUVDUHWKHQ

informed how much pollutant they can release into a

receiving water. In this matter, EPA has simply ignored

that direction and created a scheme under which it can

hold dischargers liable at any time, including for other

dischargers’ actions.

When concurring in Rapanos v. United States, Chief

Justice Roberts pointed out that EPA failed to utilize the

statutory and promulgated guidance as required by the

statute. Rapanos v. United States, 547 U.S. 715, 758 (2006)

(Roberts, C.J. concurring). EPA has issued regulations

and guidance that dictate how EPA must develop water

TXDOLW\EDVHGHIÁXHQWOLPLWDWLRQVEXWKDVFKRVHQWRLJQRUH

those requirements in favor of an off the books regulation

of its own making. This pattern and practice of imposing

generic prohibitions is arbitrary and capricious, violates

applicable law, and should be rejected by this Court.

20

IV. Generic prohibitions are arbitrary and limit the

ability of Cities and Counties to prioritize projects

A.

Generic “cause or contribute” prohibitions are

arbitrary and raise serious questions of due

process

Generic prohibitions that create liability for discharges

that “cause or contribute” to exceedances of water quality

standards raise serious due process issues for cities and

counties. Vague standards provide dischargers with no

notice as to how to avoid sanctions under the Act. The law

requires EPA to “prescribe conditions for such permits to

assure compliance.” 33 U.S.C. § 1342(a)(2). An ambiguous,

generic term, with no narrative or numerical direction to

ensure compliance, fails to meet the basic duty of clarity

EPA is charged with.

Under the CWA, states set water quality standards for

every surface water body in their jurisdiction. 33 U.S.C.

§ 1313. The standards must include a designated use,

VXFKDVÀVKLQJRUERG\FRQWDFWUHFUHDWLRQDQGQXPHULFRU

narrative criteria for pollutant levels necessary to support

that use. 33 U.S.C. § 1313(c)(2)(A). EPA must approve these

VWDQGDUGVDQGZLOORQO\GRVRLIWKH\PHHWWKH´ÀVKDEOH

swimmable” goals of the CWA. 33 U.S.C. § 1313(c)(3).

EPA’s generic prohibition on discharges that “cause

or contribute” to violations of water quality standards

creates an arbitrary standard because the ambiguous

provisions make it impossible to know how to comply.

For one, the generic prohibitions do not import the water

quality standards as end-of-pipe limits. An end-of-pipe

limit allows a discharger to know that their discharge

21

QHHGVWRPHHWDVSHFLÀFOLPLW³WKHHVWDEOLVKHGVWDQGDUG³

and could base compliance efforts around that target.

Nor do the generic prohibitions create a standard

that is higher or lower than the established water quality

standard. If the receiving water is not attaining the

applicable standard because of other dischargers or

natural conditions, then “cause or contribute” could mean

the addition of a single molecule or bacterium. Thus,

EPA’s generic prohibitions create multiple scenarios under

which a discharger could be held liable with no standard

for compliance. These ambiguous, generic prohibitions

not only completely disregard Congress’s intention for

permits to be attainable, but also disregard the permit

shield Congress put in place for those permittees who

comply with all permit requirements. 33 U.S.C. § 1342(a)(2), (k).

Without clear, achievable permit provisions, a permittee

is operating in limbo, with no clear way to meet permit

terms, and not knowing of violations until enforcement

occurs.

This Court has categorically rejected an agency’s

use of vague terms to impose sanctions. Sackett v. EPA,

598 U.S. 651, 681 (2023); Sackett v. EPA, 566 U.S. 120,

124-25 (2012); U.S. Army Corps of Eng’rs v. Hawkes

Co., 578 U.S. 590 (2016). And here, EPA’s use of the

generic prohibitions puts dischargers in the same boat.

Cities, counties, and public utilities are left without clear

pathways to compliance and are therefore unable to

invest in infrastructure that would allow them to meet

applicable permit requirements. Worse, they are left open

to enforcement actions brought by EPA, implementing

state agencies, and environmental groups.

22

B. Enforcement actions (by EPA and citizens

groups) cost time and money that could be

directed to clean water

Section 309 of the CWA allows the EPA and,

implementing states to enforce the requirements of the

Act. 33 U.S.C. § 1319. Section 505 of the CWA allows any

person to similarly enforce the Act. 33 U.S.C. § 1365. In

cases where EPA has written permit conditions that are

open to varied interpretation and arguably cannot be

complied with, the permit holder is never able to rely on

compliance as a defense.

Despite taking the actions necessary to comply with

vague permit terms, public agencies are often forced to

be party to litigation because the vague standard does

not provide a pathway for compliance. For example, the

Metropolitan Water Reclamation District of Greater

Chicago spent over $2 million in two different cases

where generic provisions its permit created a vacuum for

enforcement. See e.g. Nat. Res. Def. Council v. Metro. Water

Reclamation Dist. of Greater Chicago, 175 F.Supp.3d 1041

(N.D. Ill. 2016) Ultimately, as part of a consent decree, the

District was required to establish a Green Infrastructure

program, which in 2011 was estimated to cost between

$25 million and $50 million. EPA, Metropolitan Water

Reclamation District of Greater Chicago Settlement (Dec.

14, 2011), https://www.epa.gov/enforcement/metropolitanwater-reclamation-district-greater-chicago-settlement.

This settlement was not due to a direct failure by the

'LVWULFW WR PHHW DQ HIÁXHQW OLPLWDWLRQ EXW GXH WR WKH

generic provisions which created ambiguity as to what

compliance truly meant.

23

Similarly, the City of Portland, Oregon’s permit

contained generic language prohibiting discharges that

“cause or contribute” to an exceedance of water quality

standards. In Nw. Env’t Advocs. v. City of Portland, 56

)GDWDFLWL]HQ·VJURXSÀOHGVXLWDJDLQVWWKH&LW\

on the grounds that it was violating this prohibition.

The District Court found for the citizen group based on

FRQWULEXWLRQVRISROOXWDQWVIURPWKHFLW\·VFRQÀQHGVHZHU

RYHUÁRZRXWIDOOV7KHFLW\HVWLPDWHGWKDWDGGUHVVLQJWKH

concerns raised in the suit would cost between $500 million

and $1.2 billion on abatement projects. 8

Defending these enforcement actions takes time and

UHVRXUFHVWKDWVRPHDJHQFLHVVLPSO\GRQRWKDYH7KH\ÀQG

it easier to settle, pay attorneys’ fees, and move on. The

ultimate result is that resources are expended on lawsuits

RUSURMHFWVWKDWPD\QRWEHQHÀWWKHHQYLURQPHQW,QDOO

such cases, EPA has denied public agencies the protection

that compliance with permit requirements is supposed to

8. The following cases are additional examples where generic

prohibitions in a NPDES permit cost local governments time on

money on lawsuits and enforcement, rather than the mission of

providing clean sanitation: Los Angeles Cnty. Flood Control Dist.

v. Nat. Res. Def. Council, 568 U.S. at 78 (2013) (discussed above);

S.F. Baykeeper v. City of Sunnyvale, No. 5:20-CV-00824-EJD,

2020 WL 7696078 (N.D. Cal. Dec. 28, 2020) (citizen group brought

CWA enforcement case against the City for alleged NPDES permit

violations); Piney Run Pres. Ass’n v. Cnty. Comm’rs of Carroll Cnty.,

268 F.3d 255 (4th Cir. 2001) (citizen group brought CWA enforcement

case against the County for alleged NPDES permit violations); and

Nw. Env’t Advocs. v. City of Medford, 2021 WL 2673126 (D. Or. July

9, 2021) (citizen group brought CWA enforcement case against the

City for alleged NPDES permit violations); Gill, 19 F.Supp.2d at

1195 (landowners brought an CWA action against a nearby quarry

claiming NPDES violations).

24

provide. Concurrently, public agencies lose control over

how to allocate resources to protect the health and safety

of their residents and rate payers. A permit cannot be a

ÁXLGGRFXPHQWWKDWDOORZV(3$DQGFLWL]HQJURXSVJHWWR

decide arbitrarily when a violation has occurred, NPDES

permits must be clear and unambiguous so as to assure

compliance. 33 U.S.C. § 1342(a)(2), (k).

CONCLUSION

For the foregoing reasons, this Court should grant

Petitioner’s request and reverse the Ninth Circuit’s

decision.

Respectfully submitted,

A MANDA K ARRAS

INTERNATIONAL

MUNICIPAL LAWYERS

A SSOCIATION

51 Monroe Street

Suite 404

Rockville, MD 20850

(202) 466-5424

J.G. A NDRE MONETTE

Counsel of Record

SHAWN HAGERTY

A NA D. SCHWAB

BEST BEST & KRIEGER, LLP

1800 K Street NW

Suite 725

Washington, DC 20006

(202) 785-0600

Andre.Monette@bbklaw.com

Counsel for Amici Curiae