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

No. 23-753

IN THE

Supreme Court of the United States

______________

CITY AND COUNTY OF SAN FRANCISCO,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

______________

On Writ of Certiorari to

the United States Court of Appeals

for the Ninth Circuit

______________

BRIEF OF ENVIRONMENTAL AND

COMMUNITY ORGANIZATIONS AS AMICI

CURIAE IN SUPPORT OF RESPONDENT

______________

Linnet Davis-Stermitz

EARTHJUSTICE

810 Third Avenue

Suite 610

Seattle, WA 98104

Kirti Datla

Counsel of Record

Benjamin Chagnon

EARTHJUSTICE

1001 G Street NW

Suite 1000

Washington, DC 20001

202.797.5241

kdatla@earthjustice.org

Counsel for Environmental

and Community Organizations

ii

TABLE OF CONTENTS

Page

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

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

INTRODUCTION AND SUMMARY OF

ARGUMENT .......................................................... 2

ARGUMENT ............................................................... 3

I.

NPDES Permits Must Ensure That Water

Quality Standards Are Met .............................. 3

A. NPDES permits issue through an

iterative process ......................................... 4

B. NPDES permits commonly include

several types of limitations ........................ 7

II.

Enforcement Proceedings Are Rare But

Provide Important Protections ....................... 15

A. Receiving water limitation enforcement

actions are rare, but violations are

clear, and clearly knowable ..................... 16

B. Petitioner’s criticisms of the people who

use the Clean Water Act to protect

themselves lack merit .............................. 22

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

iii

TABLE OF AUTHORITIES

Page(s)

CASES:

California Sportfishing Protection Alliance v.

Chico Scrap Metal, Inc.,

728 F.3d 868 (9th Cir. 2013)................................ 25

County of Maui v. Hawaii Wildlife Fund,

590 U.S. 165 (2020).............................................. 11

Gill v. LDI,

19 F. Supp. 2d 1188 (W.D. Wash. 1998) ............. 25

Natural Resources Defense Council v. County of

Los Angeles,

725 F.3d 1194 (9th Cir. 2013).............................. 25

Natural Resources Defense Council v. EPA,

808 F.3d 556 (2d Cir. 2015) ................................. 12

Natural Resources Defense Council v.

Metropolitan Water Reclamation District,

175 F. Supp. 3d 1041 (N.D. Ill. 2016)............ 18, 19

New Manchester Resort & Golf, LLC v.

Douglasville Development, LLC,

734 F. Supp. 2d 1326 (N.D. Ga. 2010) ................ 24

Northwest Environmental Advocates v. City of

Medford,

2021 WL 2673126 (D. Or. June 9, 2021) ............. 25

Northwest Environmental Advocates v. City of

Portland,

56 F.3d 979 (9th Cir. 1995)............................ 23, 24

Ohio Valley Environmental Coalition v. Fola

Coal Company,

82 F. Supp. 3d 673 (S.D. W. Va. 2015) ............... 20

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Ohio Valley Environmental Coalition v. Fola

Coal Company,

845 F.3d 133 (4th Cir. 2017).......................... 19, 20

PUD No. 1 of Jefferson County v. Washington

Department of Ecology,

511 U.S. 700 (1994)................................................ 2

Pulsifer v. United States,

601 U.S. 124 (2024).............................................. 15

San Francisco Baykeeper v. City of Sunnyvale,

2020 WL 7696078 (N.D. Cal. Dec. 28, 2020)....... 25

Swartz v. Beach,

229 F. Supp. 2d 1239 (D. Wyo. 2002) .................. 24

STATUTES:

Clean Water Act, 33 U.S.C. § 1251, et seq.

33 U.S.C. § 1251(a) ............................................ 1, 2

33 U.S.C. § 1311(a) ................................................ 2

33 U.S.C. § 1311(b) ............................................ 2, 7

33 U.S.C. § 1311(b)(1)(C) ................................... 2, 8

33 U.S.C. § 1314(b) ................................................ 7

33 U.S.C. § 1318(a)-(b) ......................................... 12

33 U.S.C. § 1342(a)(1) .................................. 2, 7, 12

33 U.S.C. § 1342(b)(1)(B) ....................................... 5

33 U.S.C. § 1342(b)(2) .......................................... 12

33 U.S.C. § 1342(q) ................................................ 6

33 U.S.C. § 1362(11) .............................................. 2

33 U.S.C. § 1365(a)(2) .......................................... 23

33 U.S.C. § 1365(b) .............................................. 23

v

TABLE OF AUTHORITIES—Continued

Page(s)

RULES AND REGULATORY ACTIONS:

40 C.F.R. §§ 122.1–122.64 ........................................ 4

40 C.F.R. § 122.46(a) ................................................ 5

40 C.F.R. § 122.62 ..................................................... 5

40 C.F.R. § 124.19 ..................................................... 5

Ark. Dep’t of Env’t Quality, Draft Permit No.

AR0039268 (2005), bit.ly/4762sMv ....................... 9

Cal. Env’t Prot. Agency, State Water Res. Control Bd., California Ocean Plan (2019),

bit.ly/ca19plan ...................................................... 10

Cal. Reg’l Water Quality Control Bd., Amending

Waste Discharge Requirements for Westside

Treatment Facility, City & County of San

Francisco,

Order No. 89-71 (May 17, 1989) ............................ 6

Cal. Reg’l Water Quality Control Bd., Reissuing

Waste Discharge Requirements for RichmondSunset Water Pollution Control Plant, City &

County of San Francisco,

Order No. 84-45 (July 18, 1984) ...................... 9, 10

Cal. Reg’l Water Quality Control Bd., Waste

Discharge Requirements for City & County of

San Francisco Richmond-Sunset Plant,

Order No. 79-129 (Oct. 16, 1979)..................... 9, 10

Combined Sewer Overflow (CSO) Control Policy,

59 Fed. Reg. 18,688 (Apr. 19, 1994) .................. 6, 8

Conn. Dep’t of Energy & Env’t Prot.,

General Permit No. CTGPL000 (Jul. 22, 2024),

bit.ly/3Ayonjn ....................................................... 11

vi

TABLE OF AUTHORITIES—Continued

Page(s)

EPA & Cal. Reg’l Water Quality Control Bd.,

NPDES Permit for City & County of San Francisco Oceanside Treatment Plant, Southwest

Ocean Outfall & Westside Wet Weather Facilities,

Order No. R2-2003-73 (Aug. 20, 2003) .................. 8

EPA & Cal. Reg’l Water Quality Control Bd.,

Waste Discharge Requirements for City &

County of San Francisco’s Oceanside Water

Pollution Control Plant & the Westside Wet

Weather Combined Sewer System,

Order No. 97-44 (Apr. 9, 1997) .................... 7, 8, 12

EPA & Cal. Reg’l Water Quality Control Bd.,

Waste Discharge Requirements for Westside

Treatment Facility & Southwest Ocean Outfall

of the City & County of San Francisco,

Order No. 88-106 (July 11, 1988) ................ 5, 9, 10

General Permit No.: VAG75 For Vehicle Wash

Facilities and Laundry Facilities,

9 Va. Admin. Code § 25-194-70 ........................... 10

General Permit No.: VAG84 For Nonmetallic

Mineral Mining,

9 Va. Admin. Code § 25-190-70 ........................... 11

Ohio Env’t. Prot. Agency, Application No.

OH0026018 (July 17, 2014), bit.ly/3ABbWTT .... 14

W. Va. Dep’t of Env’t Prot., Permit No.

WV0078743: Industrial Wastes, Vehicle Washing Establishments (June 13, 2022),

bit.ly/3XqLdSY ..................................................... 11

W. Va. Dep’t of Env’t Prot.,

Permit No. WV0116645: Pesticide General

vii

TABLE OF AUTHORITIES—Continued

Page(s)

Permit for Point Source Discharges (Dec. 4,

2017), bit.ly/3Mmgoss .......................................... 11

OTHER AUTHORITIES:

Brent Walth, Someone finally has enough of all

that crap in the Willamette, Willamette Week

(Nov. 4, 2014), bit.ly/4drEEoK ............................ 24

David E. Adelman & Jori Reilly-Diakun, Environmental Citizen Suits & The Inequities of

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

(2021) .............................................................. 22, 23

EPA, Cleveland-Cliffs Steel LLC and ClevelandCliffs Burns Harbor LLC Settlement,

bit.ly/4dT1IfZ (last updated Feb. 6, 2024) .......... 21

EPA, Combined Sewer Overflows (CSOs),

bit.ly/3T9yYYw (last visited Aug. 30, 2024).......... 4

EPA, Combined Sewer Overflows: Guidance for

Permit Writers (Aug. 1995) .................................... 4

EPA, Enforcement Case Search Results,

bit.ly/3WV57E7 (last visited Aug. 2, 2024) ......... 16

EPA, Facility Search Results – Enforcement and

Compliance Data, bit.ly/3YZG1H0 (last visited

Aug. 2, 2024) ........................................................ 16

EPA, NPDES Permit Writers’ Manual

(Sept. 2010) ........................................ 4, 5, 7, 12, 13

EPA, Water Quality Standards Handbook,

Chapter 5: General Policies (updated Sept.

2014) ....................................................................... 9

EPA Region 7, Changes to St. Louis Sewer Overhaul Project Recognize Underserved Community (Aug. 17, 2022), bit.ly/3MfAoN3................... 22

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Morgan Krakow, Cyanide from a steel plant

trickled into Lake Michigan for days before the

public was notified, Wash. Post (Aug. 19,

2019), bit.ly/3WSQMbf......................................... 21

Oregon Dep’t of Env’t Quality, Fact Sheet: Is it

Safe to Swim in the Willamette River in Portland? bit.ly/3WWXahB (last updated June

2022) ..................................................................... 24

Sanya Mansoor, Indiana Cyanide Leak Kills

3,000 Fish and Shut Down Beaches at America’s Newest National Park, TIME (Aug. 20,

2019), bit.ly/3WYypSr .......................................... 21

State warns of toxic algae forming on Illinois

lakes, rivers, Chicago Sun-Times (May 28,

2016), bit.ly/3WTNNPS ....................................... 19

U.S. Army Corps of Engineers, Washington Aqueduct advises Boil Water Advisory for District

of Columbia and parts of Northern VA (July 3,

2024), bit.ly/4dCHCXO ........................................ 19

U.S. Gov’t Accountability Off., GAO-21-290,

Clean Water Act: EPA Needs to Better Assess

and Disclose Quality of Compliance and Enforcement Data (July 2021), bit.ly/3YTqrfW ....... 16

INTERESTS OF AMICI CURIAE

Amici curiae Columbia Riverkeeper, Conservation

Law Foundation, Natural Resources Defense Council,

San Francisco Baykeeper, Sierra Club, Southern Environmental Law Center, and Waterkeeper Alliance

are environmental and community nonprofit organizations that rely on the Clean Water Act and its comprehensive water-quality protections to help protect

public health and the environment. Amici have an interest in ensuring that the Act is interpreted consistently with Congress’s stated objective to “restore and

maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C. § 1251(a). And

they have a longstanding interest in the proper interpretation, and effective operation, of the Act’s National Pollutant Discharge Elimination System. 1

1 No party has authored this brief in whole or in part, and no

one other than amici, their members, and their counsel have paid

for the preparation or submission of this brief.

(1)

2

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Clean Water Act exists to “restore and maintain

the chemical, physical, and biological integrity of the

Nation’s waters.” 33 U.S.C. § 1251(a). To do that, the

Act prohibits the “discharge of any pollutant by any

person.” Id. § 1311(a). This prohibition does not apply

if a permit issued under the National Pollutant Discharge Elimination System program authorizes the

discharge. See id. §§ 1311(a), 1342(a)(1).

An NPDES permit must include the limitations that

will ensure that water quality standards will be met.

States lead the development of these standards, which

identify uses for waters, water quality criteria based

on those uses, and antidegradation measures. See

PUD No. 1 of Jefferson Cnty. v. Wash. Dep’t of Ecology,

511 U.S. 700, 704–05 (1994). Permits must include,

at a minimum, technology-based effluent limitations.

See 33 U.S.C. § 1311(b); see also id. § 1362(11) (defining “effluent limitation”). Permits must also include

water-quality based limitations: These “more stringent limitation[s]” include “those necessary to meet

water quality standards, treatment standards, or

schedules of compliance . . . .” Id. § 1311(b)(1)(C).

In seeking certiorari, petitioner asked this Court to

decide whether the Act allows NPDES permits to include what petitioner calls “generic” limitations. Pet.

i. By that, petitioner appears to refer to limitations

that “generically prohibit[] . . . causing or contributing

to exceedances of water quality standards.” Id. at 3.

Petitioner has now shifted its challenge to take issue

with what it calls “receiving water” limitations, which

it defines as limitations that “condition compliance on

the quality of receiving waters.” Pet. Br. 4, 49.

3

Neither of petitioner’s terms are statutory terms. As

its own amici recognize, because Congress enacted detailed requirements for the permitting program, tinkering with that carefully calibrated regime inherently

risks “negatively impact[ing]” the NPDES program.

Nat’l Ass’n of Home Builders Br. 3. Petitioner’s use of

hazy, undefined terms to describe various categories

of permit limitations, terms that are nowhere to be

found in the Act, magnifies that risk.

Given that risk, amici address two features of petitioner’s briefing here. The first is petitioner’s use of

terms that neither the Act nor practitioners use to describe permit limitations, often without defining them

clearly. This brief describes the types of limitations

that appear in NPDES permits and why, so that this

Court can assess which would be affected by petitioner’s proposed rule. The second is the criticism petitioner (echoed by its amici) levels at the enforcement

of “receiving water” limitations, presumably because

it hopes that this Court will work backwards to interpret the Act in line with petitioner’s policy preferences. That is not how statutes are read, but even so,

this brief explains that petitioner’s criticisms lack a

basis in the actual cases and the available data on enforcement actions.

ARGUMENT

I. NPDES Permits Must Ensure That

Water Quality Standards Are Met.

Petitioner tells an incomplete story about the process for issuing NPDES permits and the content of

those permits. Permits are produced through an iterative process that reflects the permitholder’s input.

And permitting authorities commonly include many

4

types of limitations to meet the relevant water quality

standards.

A. NPDES permits issue through an iterative

process.

To start, petitioner incorrectly paints the NPDES

permitting process as one-sided. See Pet. Br. 15 (“EPA

inserted”; “EPA included”). In reality, permits reflect

a substantial back and forth between the permitholder and the permitting agency. An applicant

must provide the permitting authority with information about its discharges and its facility. See EPA,

NPDES Permit Writers’ Manual §§ 4.3, 4.5 (Sept.

2010). 2 The permitting authority then seeks any additional information it needs to determine the permit

limitations, for example, through site visits and information requests. See NPDES Permit Writers’ Manual

§§ 4.5, 4.6.2; CSO Guidance § 3.2.

In practice, permits are then drafted through an iterative process. The permit applicant and permitting

authority typically exchange views on proposed permit limitations over multiple rounds of review. This

process also produces a draft permit, which the public

(including the applicant) may review and comment on.

2 This brief cites the NPDES Permit Writers’ Manual that permitting authorities use on a day-to-day basis, as well as the guidance for Combined Sewer Overflow permits like the permit at

issue here. See generally EPA, Combined Sewer Overflows:

Guidance for Permit Writers (Aug. 1995); see also EPA, Combined

Sewer Overflows (CSOs) (last visited Aug. 30, 2024) (explaining

that a “combined sewer system collects rainwater runoff, domestic sewage, and industrial wastewater into one pipe” and that

when flows exceed the pipe capacity, “untreated stormwater and

wastewater flows into nearby waterbodies”), bit.ly/3T9yYYw.

Both documents implement the NPDES regulations. See generally 40 C.F.R. §§ 122.1–122.64.

5

See NPDES Permit Writers’ Manual § 11.3.2. Then,

after a permit issues, it may be challenged and modified as necessary. See id. §§ 11.2, 11.4; see also 40

C.F.R. § 124.19. Because permits cover only a fiveyear period, they are also updated through the renewal process to remove limitations that prove unnecessary, update limitations in light of new technology,

or add limitations needed to meet water quality standards. See 33 U.S.C. § 1342(b)(1)(B); 40 C.F.R.

§ 122.46(a); NPDES Permit Writers’ Manual § 3.1.

And permits can be reopened during that five-year

term if circumstances change such that different limitations are warranted. See 40 C.F.R. § 122.62.

The history of petitioner’s Oceanside permit at issue

here illustrates this process. Over many renewal cycles—for the Oceanside facility itself and for the Richmond-Sunset and Southwest facilities that preceded

it—petitioner has successfully asked the California

Regional Water Quality Control Board and EPA to

modify the permit in light of new circumstances and

information. 3 And these agencies have likewise relied

on data generated from the permit’s monitoring requirements to remove or revise requirements of their

own accord. 4

3 See, e.g., EPA & Cal. Reg’l Water Quality Control Bd., Waste

Discharge Requirements for Westside Treatment Facility &

Southwest Ocean Outfall of the City & County of San Francisco,

Order No. 88-106, at 1 (July 11, 1988) (after petitioner lost anticipated construction grant funding, EPA and the California State

Water Resources Control Board recommended interim projects

to improve petitioner’s treatment capabilities while it worked towards longer-term improvements).

4 Cal. Reg’l Water Quality Control Bd., Amending Waste Dis-

charge Requirements for Westside Treatment Facility, City &

6

Indeed, the specific permit conditions petitioner

challenges resulted from this back and forth. The

Clean Water Act requires petitioner to develop and

implement a long-term CSO control plan to comply

with water quality standards—a requirement that

Congress imposed directly by codifying EPA’s CSO

Policy. See 33 U.S.C. § 1342(q) (requiring that permits “shall conform to the Combined Sewer Overflow

Control Policy”); see also Combined Sewer Overflow

(CSO) Control Policy, 59 Fed. Reg. 18,688 (Apr. 19,

1994). But when petitioner’s most recent permit came

up for renewal, its plan was out of date. Pet. App.

421–23. And sampling for bacteria levels showed that

water quality standards were not being met under

prior permits. Id. at 445. For six years, EPA and the

California Regional Water Quality Board worked with

petitioner to resolve the issues with its plan, but petitioner refused to update it. Id. at 420–22. That led

the agencies to try a different approach: They issued

a new permit that specifically required petitioner to

update its plan. Id. at 128–31, 422–23. They also included a provision prohibiting petitioner’s “discharge[s]” from “caus[ing] or contribut[ing] to a violation of any applicable water quality standard.” Id. at

97. That provision was intended to act as a backstop

against petitioner’s existing long-term plan’s deficiencies because petitioner had not made the overdue revisions to that plan. Id. at 440–43, 447–48.

County of San Francisco, Order No. 89-71, at 1–2 (May 17, 1989)

(eliminating a coliform bacteria concentration limit after petitioner’s testing results indicated that its discharges did not violate state bacteriological body-contact standards).

7

B. NPDES permits commonly include several

types of limitations.

One reason for this iterative process is because the

Clean Water Act requires NPDES permits to contain

the mix of limitations that will ensure that a permitted discharge will meet the water quality standards

that govern the waters at issue. Petitioner claims that

the Act “establish[es] one mechanism for ensuring water quality standards are met . . . : effluent limitations.” Pet. Br. 23. But that does not capture the full

set of limitations required by the Act and commonly

found in NPDES permits.

At a minimum, every NPDES permit must contain

the technology-based effluent limitations that apply to

the discharge. See 33 U.S.C. §§ 1311(b), 1314(b),

1342(a)(1). These are often numeric and specify the

rate or concentration at which a given pollutant may

be discharged. Petitioner’s Oceanside permit, for example, has long included numeric technology-based

effluent limitations that set average weekly and

monthly limits for suspended solids and carbonaceous

biochemical oxygen demand. 5 Alternatively, these

limitations are sometimes expressed as “narrative

limitations, including best management practices,”

NPDES Permit Writers’ Manual § 5.2.1, such as production modifications, inspection requirements, and

other pollution control measures. For example, the

policy governing combined sewer overflows like petitioner’s describes nine minimum controls as

5 See, e.g., Pet. App. 91–92; EPA & Cal. Reg’l Water Quality

Control Bd., Waste Discharge Requirements for City & County

of San Francisco’s Oceanside Water Pollution Control Plant &

the Westside Wet Weather Combined Sewer System, Order No.

97-44, at 14 (Apr. 9, 1997).

8

technology-based effluent limitations. See CSO Control Policy, 59 Fed. Reg. at 18,691, 18,695.

If technology-based effluent limitations are not

enough to ensure that water quality standards will be

met, NPDES permits must then contain additional,

more stringent limitations, which are referred to as

water-quality based limitations.

See 33 U.S.C.

§ 1311(b)(1)(C) (requiring “any more stringent limitation, including those necessary to meet water quality

standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of

this title) or any other Federal law or regulation, or

required to implement any applicable water quality

standard established pursuant to this chapter”).

NPDES permits contain many different types of “more

stringent” limitations.

First, these limitations are sometimes expressed as

a numeric or narrative limit on the amount of a pollutant that the permitholder can discharge. A permit

might set a numeric limit where, for example, a pollutant has a homogenous concentration in water that

can be measured, for example in concentrations such

as milligrams per liter. Petitioner’s Oceanside permit,

for example, sets maximum concentrations for mercury discharges. 6 A permit might include a narrative

limitation for other pollutants that are not measured

in that way. For example, permits often include

6 See, e.g., Order No. 97-44, at 15 (setting 6-month median,

daily maximum, and instantaneous maximum concentrations of

mercury); see also EPA & Cal. Reg’l Water Quality Control Bd.,

NPDES Permit for City & County of San Francisco Oceanside

Treatment Plant, Southwest Ocean Outfall & Westside Wet

Weather Facilities, Order No. R2-2003-73, at 25–26 (Aug. 20,

2003) (similar for toxicity).

9

narrative prohibitions on the discharge of undesirable

materials, like “distinctly visible solids, scum, or foam

of a persistent nature,” such as toilet paper or other

waste. 7

Second, water-quality based limitations are also

sometimes expressed as numeric restrictions on parameters in the waters that the discharge enters. Permits for petitioner’s Oceanside and predecessor facilities, for example, require that concentrations of coliform organisms at sampling stations downstream not

exceed “1,000 per 100 ml.” 8 This type of limitation can

implement a water quality standard that identifies a

mixing zone, which EPA treats as a zone “where initial dilution of a discharge takes place,” and where

compliance with the water quality standard is required outside of that zone. 9 Other numeric limitations that refer to a receiving water restrict how much

a condition can change in the waters that the discharge enters, for example, to address unique risks

that changes in water condition may pose. 10 The

7 See, e.g., Ark. Dep’t of Env’t Quality, Draft Permit No.

AR0039268, at 2 (2005), bit.ly/4762sMv.

8 Cal. Reg’l Water Quality Control Bd., Waste Discharge Requirements for City & County of San Francisco Richmond-Sunset

Plant, Order No. 79-129, at 4 (Oct. 16, 1979); Order No. 88-106,

at 12–13 (setting detailed coliform criteria for receiving waters

“upon completion of ‘initial dilution’ ” for “Body-Contact Standards” and “ ‘Shellfish’ Harvesting Standards”).

9 EPA, Water Quality Standards Handbook, Chapter 5: General Policies 2 (2014).

10 Order No. 79-129, at 4 (prohibiting alterations of ocean pH

of “more than 0.2 units from that which occurs naturally”); Cal.

Reg’l Water Quality Control Bd., Reissuing Waste Discharge Requirements for Richmond-Sunset Water Pollution Control Plant,

City & County of San Francisco, Order No. 84-45, at 6–7 (July

18, 1984) (similar).

10

permit that covers car washes and laundry facilities

in Virginia, for example, states that in “natural trout

waters, the temperature of the effluent shall not cause

an increase of 1°C above natural water temperature”

and “the hourly temperature change shall not exceed

0.5°C.” 11

Third, water-quality based limitations are also

sometimes expressed as prohibitions on specified, observable narrative conditions in the receiving water.

For example, California’s water quality standards require that discharges “not cause aesthetically undesirable discoloration of the ocean surface.” 12 Petitioner’s permits incorporate this standard as a narrative limitation that prohibits “discharge of ‘waste’ ”

that causes “aesthetically undesirable discoloration of

the ocean surface.” 13

Fourth, permits sometimes include what petitioner

refers to as a “generic” water-quality based limitation,

one that incorporates all of the applicable water quality standards as a backstop. Here, for example, petitioner’s Oceanside permit prohibits a discharge that

will “cause or contribute to a violation of any applicable water quality standard . . . for receiving waters,”

subject to certain exceptions. App. 97.

These limitations often appear in general permits,

which address categories of sources within a specified

geographic location, where the facilities, discharges,

11 General Permit No.: VAG75 For Vehicle Wash Facilities and

Laundry Facilities, 9 Va. Admin. Code § 25-194-70, pt. I.A.3(4),

4(4).

12 See Cal. Env’t Prot. Agency, State Water Res. Control Bd.,

California Ocean Plan 7 (2019), bit.ly/ca19plan.

13 Order No. 88-106, at 13; see also, e.g., Order No. 84-45, at 6–

7; Order No. 79-129, at 4.

11

or limitations are similar enough to be addressed together. See County of Maui v. Haw. Wildlife Fund,

590 U.S. 165, 185–86 (2020) (noting that general permits simplify Clean Water Act compliance by covering

“recurring situations”). General permits—like individual permits—must contain the limitations that

will ensure that water quality standards are met. 14

Because general permits cover different sources that

discharge different pollutants into different waters,

general permits often add what petitioner calls “generic” limitations as a backstop that requires water

quality standards to be met. See, e.g., General Permit

No.: VAG84 For Nonmetallic Mineral Mining, 9 Va.

Admin. Code § 25-190-70, pt. I.B.13 (special condition

in general permit for nonmetallic mineral mining,

stating that “discharges . . . shall be controlled as necessary to meet applicable water quality standards”);

W. Va. Dep’t of Env’t Prot., Permit No. WV0116645:

Pesticide General Permit for Point Source Discharges,

14 General permits can contain the same suite of water-quality

based limitations as individual NPDES permits described above.

See, e.g., Conn. Dep’t of Energy & Env’t Prot., General Permit

No. CTGPL000 § 4.5.2.2 (Jul. 22, 2024) (covering the discharge

of swimming pool wastewater from public pools and stating that

“[n]o discharge shall contain, or cause in the receiving stream, a

visible oil sheen or floating solids, or cause visible discoloration

or foaming in the receiving stream”), bit.ly/3Ayonjn; W. Va. Dep’t

of Env’t Prot., Permit No. WV0078743: Industrial Wastes, Vehicle Washing Establishments, App. A § I.12 (June 13, 2022) (“This

discharge shall not cause or materially contribute to distinctly

visible floating or settable solids, suspended solids, scum, foam

or oily slicks; deposits or sludge bank on the bottom; odors in the

vicinity of the waters; taste or odor that would adversely affect

the designated uses of the affected waters; distinctly visible color

which may impair or interfere with the designated uses of the

affected waters; and shall not cause a fish or mussel kill.”),

bit.ly/3XqLdSY.

12

at 6 (Dec. 4, 2017) (requiring effluent “to be of such

quality so as not to cause violations of applicable numeric and narrative water quality standards”),

bit.ly/3Mmgoss. 15

NPDES permits also commonly include other limitations, prohibitions, and requirements beyond those

already discussed. These include additional best

management practices, which, again, are “actions or

procedures to prevent or reduce the discharge of pollution.” NPDES Permit Writers’ Manual § 9.1.2. For

example, a permit might require the use of maintenance procedures to ensure that pollution control

measures function as intended. See id. NPDES permits also require permittees to monitor their facilities,

require sampling and testing at specified intervals

and at specified locations in receiving waters, and require public reporting of the results. See 33 U.S.C.

§§ 1318(a)-(b), 1342(a)(1), (b)(2).

Petitioner’s

Oceanside permit, for example, requires it to test for

oil and grease and suspended solids and to conduct

benthic monitoring. 16 These requirements allow permitting agencies to determine compliance and also to

15 As discussed, see supra at 2, the petition for certiorari was

trained on these “generic” limitations and alleged a split between

the decision below and Natural Resources Defense Council v.

EPA, 808 F.3d 556 (2d Cir. 2015), which found that those limitations alone were insufficient to ensure compliance with the Act

with respect to the discharges at issue. See Pet. 23. Petitioner

has now abandoned its permit-specific arguments based on the

appropriateness of the specific “generic” limitation here. Gov’t

Br. 47–49.

16 See, e.g., Order No. 97-44, pt. B at 2–6 (whole effluent toxicity testing requirements); id. at 6–7 (shoreline and surf zone

sampling requirements); id. at 7–8 (overflow monitoring requirements); id. at 9–12 (benthic zone sampling and trawling requirements); id. at 12–13 (reporting requirements).

13

determine whether additional or adjusted permit limitations are needed to meet water quality standards.

See NPDES Permit Writers’ Manual § 8.1.1. Permits

also commonly include compliance schedules. Id.

§ 9.1.3.

Even this discussion does not capture the variation

in permit language in NPDES permits across the

country, but it does reveal two problems.

The first is that petitioner’s use of novel, undefined

terms makes the scope of its argument unclear. For

example, when it refers to “limitations that make permitholders responsible for the overall quality of receiving waters,” Pet. Br. 4, is it referring to the second

category of limitations discussed above—those that

set numeric restrictions on a condition in the receiving

waters? Or to the third category—those that prohibit

specified narrative conditions in the receiving water?

Or to both, or to yet more types of limitations? Petitioner’s challenge to what it calls “generic” limitations

is similarly unclear. Because “generic” limitations incorporate all applicable water quality standards, the

underlying applicable water quality standards might

map onto any of the types of water-quality based limitations described above. When petitioner criticizes

“generic” limitations, it is not clear whether its claim

is that no permit may contain a “generic” limitation,

or whether its claim is that any such limitation is invalid only as to the underlying incorporated water

quality standards that would, if written as permit limitations, meet petitioner’s (unspecified) definition of

“receiving water” limitations.

The second problem is that the terms petitioner uses

(and implicitly asks this Court to use) are not easily

administrable. Working through a few water-quality

14

based limitations that commonly appear

wastewater facilities’ permits shows why.

in

•

Consider a permit limitation that requires effluent to be free of substances “[i]n amounts

that will settle to form putrescent, or otherwise

objectionable, sludge deposits.” 17 Does this

provision make a permitholder “responsible for

the overall quality of receiving waters” merely

because it refers to the effluent’s effect on the

receiving waters (“settl[ing]” in them or forming “deposits” in them)?

•

Or consider a permit limitation that requires

effluent to be free of “substances” “[o]f an oily,

greasy, or surface-active nature, and of other

floating debris, in amounts that will form noticeable accumulations of scum, foam or

sheen.” 18 Same question. And would the answer change if the final clause is deleted?

•

What about a limitation that requires effluent

to be free of substances “[i]n amounts that are

conducive to the growth of aquatic weeds or algae to the extent that such growths become inimical to more desirable forms of aquatic life”? 19

Does this make a permitholder “responsible for

the overall quality of receiving waters” merely

because a permitholder must know something

about the aquatic life in receiving waters to

17 Ohio Env’t. Prot. Agency, Application No. OH0026018, at 40

(July 17, 2014) (permit for municipal wastewater discharge to

Lake Erie), bit.ly/3ABbWTT.

18 Id.

19 Id.

15

determine whether its effluent will create

harmful algae blooms?

Because of petitioner’s loose phrasing, adopting its

terms may have “broad reaching effects” that could

“negatively impact[]” the NPDES permitting program

that Congress carefully calibrated in the Act. Nat’l

Ass’n of Home Builders Br. 3. That, in turn, could

have consequences for countless permittees and the

communities affected by their discharges. Amici raise

this concern here to ensure this Court’s decision resolving this case does not inject uncertainty into the

NPDES permitting process.

II. Enforcement Proceedings Are Rare

But Provide Important Protections.

Petitioner claims that past enforcement of the permit limitations that it calls “receiving water” limitations shows that they are inherently unfair. See Pet.

Br. 48–49. Its amici do too. See, e.g., Nat’l Mining

Ass’n Br. 17. Their “thinly disguised policy appeal,”

Pulsifer v. United States, 601 U.S. 124, 180 (2024)

(Gorsuch, J., dissenting), rests on inaccurate generalizations. First, enforcement actions that turn on these

permit limitations are rare. 20 The examples that exist

(including those that petitioner highlights) show that

petitioner’s objection—that it simply cannot know if it

has violated a water quality standard—does not hold

up. What these examples do show is that these violations inflict real harm on real people.

20 As explained, supra at 13–15, it is unclear what petitioner

means by “receiving water” limitations, which makes both its

doctrinal position and policy arguments indeterminate. To address those policy arguments, amici have assumed that petitioner refers to any permit limitation that refers to a discharge’s

impact on the receiving water and any “generic” limitation.

16

A. Receiving water limitation enforcement

actions are rare, but violations are clear,

and clearly knowable.

Enforcement actions alleging violations of receiving

water limitations are not common. EPA’s database

includes compliance data for nearly 300,000 facilities

covered by active individual permits or general

NPDES permits. 21 Since 2020, the United States has

filed 52 cases in federal court asserting NPDES Permit Violations. 22 Of those, just 10 included a claim

that the polluter violated a limit that references receiving water conditions. 23 And of those, not one

21 See EPA, Facility Search Results – Enforcement and Compli-

ance Data (last visited Aug. 2, 2024) (search including facilities

that are flagged as having a “NPDES Individual Permit” or “General Permit Covered Facility” and with a permit status of “Effective” or “Administratively Continued”), bit.ly/3YZG1H0; see also

U.S. Gov’t Accountability Off., GAO-21-290, Clean Water Act:

EPA Needs to Better Assess and Disclose Quality of Compliance

and Enforcement Data 2 (July 2021) (noting that in 2020, there

were 335,000 facilities with active NPDES permits),

bit.ly/3YTqrfW.

22 EPA maintains a database that tracks its enforcement ac-

tions. EPA, Enforcement Case Search Results (last visited Aug.

2, 2024), bit.ly/3WV57E7. To produce these statistics, the database was searched for all civil cases EPA brought under the

Clean Water Act. Those results were narrowed to include only

those cases involving “301/402 - NPDES Permit Violations,”

which identified 9,195 actions. Those results were further narrowed to isolate cases brought in 2020 through August 2, 2024

and flagged in the database as “Judicial.” Finally, those complaints were reviewed to determine if they asserted a violation of

a receiving water limitation.

23 Six of these enforcement actions involve harmful sewage, re-

inforcing the need to control discharges from sources like petitioner’s. They include the United States’s pending action against

petitioner. See Compl. ¶¶ 53–57, 100, United States v. City &

17

claimed a violation of only receiving water limitations;

they also identified other violations of those permits.

The numbers for administrative proceedings—which,

at 1,387 actions since 2020, make up the bulk of EPA

enforcement actions—are similarly low. So far this

year, EPA has brought 153 administrative cases

County of San Francisco, No. 3:24-cv-2594 (N.D. Cal. May 1,

2024), ECF No. 1 (describing the health effects, including cholera, dysentery, and infectious hepatitis, that the City’s annual

discharge of 1.8 billion gallons of sewage could cause); Pet. Br.

50–51. The other examples are no less vivid. See Compl. ¶¶ 39,

46, 50, 73–76, 97, United States v. City of Lowell, No. 1:24-cv10290 (D. Mass. Feb. 5, 2024), ECF No. 1 (Lowell discharged sewage containing bacteria and phosphorus in violation of “federal

or state water quality standards” incorporated into “the City’s

NPDES Permit”); Compl. ¶¶ 47, 63–65, United States v. City of

Elyria, No. 1:22-cv-2026 (N.D. Ohio Nov. 9, 2022), ECF No. 1

(discharge of “untreated sewage” into the Black River violated

narrative “general effluent limits” in its permit that prohibited

discharges that “adversely affect[] aquatic life or water fowl,”

that “are toxic to human, animal, or aquatic life,” or that “are in

amounts that will impair designated instream or downstream

water uses”); Compl. ¶¶ 48, 50, 55–59, United States v. City of

Lakewood, No. 1:22-cv-1964 (N.D. Ohio Oct. 31, 2022), ECF No.

1 (similar, with respect to Lake Erie and Rocky River); Compl.

¶¶ 62–63, United States v. Berkeley Cnty. Pub. Serv. Sewer Dist.,

No. 3:21-cv-179 (N.D. W. Va. Nov. 17, 2021), ECF No. 1 (discharges violated permit prohibition against “discharges that

caused certain specified [narrative] objectionable characteristics

in waters of the State”); Compl. ¶¶ 1, 45, 50, 60, United States v.

City of Peoria, No. 1:20-cv-1444 (C.D. Ill. Dec. 23, 2020), ECF No.

1 (Peoria discharged untreated sewage—which “can carry bacteria, viruses, parasitic organisms, [and] intestinal worms” that

can cause “diarrhea” and “cholera, dysentery, infectious hepatitis, and severe gastroenteritis”—into the Illinois River and Peoria Lake in violation of “applicable water quality standards” incorporated into its permit).

18

involving NPDES permit violations. 24 None appear to

involve an assertion of a violation of a receiving water

limitation.

Petitioner cherry-picks examples of such enforcement actions from over the years (as do its amici) to

try to back up its claim that a permitholder cannot

know ex ante whether it is at risk of violating these

kinds of permit limits. See Pet. Br. 49 n.38; Nat’l Mining Ass’n Br. 18. But those examples refute its claim.

The government and citizens sue where the harm is

pressing and provable. The permitholders in these

cases would have had to actively ignore their discharges to not know that they were in violation.

Take petitioner’s lead-off case: Natural Resources

Defense Council v. Metropolitan Water Reclamation

District (MWRD), 175 F. Supp. 3d 1041 (N.D. Ill.

2016). See Pet. Br. 49. There, three water reclamation plants contributed an estimated “70% of the flow

in” the Chicago Area Waterway System, a series of canals and rivers that guide water from the region into

the Des Plaines River, and ultimately the Mississippi.

MWRD, 175 F. Supp. 3d at 1045. The plants discharged phosphorus—from sources including human

excrement, industry, animal waste, detergents, and

more—which caused substantial algae blooms. See

id.; see also id. (explaining that high phosphorus levels give algae “an unlimited food supply”). These

blooms are both unpleasant and unhealthy. They

cause “a foul smell that you notice right away,” “kind

24 To isolate these results, the database was filtered to include

only those “Administrative – Formal” cases brought in 2024

(through August 2). Those database entries and the related administrative dockets (if available) were reviewed to assess

whether a receiving water limitation was asserted.

19

of . . . like a bad latrine.” Pls.’ L.R. 56.1 Statement of

Material Facts 4, MWRD, No. 1:11-cv-2937 (Apr. 3,

2014), ECF No. 130. And as Illinois has warned those

who use its lakes and rivers, “rapidly growing algae

. . . can cause illness and other health problems,” such

as “vomiting, rashes, coughing and wheezing in people

and pets.” 25

These blooms also violated the plants’ permits.

Those permits included what petitioner calls a generic

limitation on discharges that “cause a violation of any

applicable water quality standards,” and Illinois’s

standards required waters to “be free from . . . unnatural plant or algal growth.” MWRD, 175 F. Supp. 3d

at 1046. No reasonable operator of the plants—which

contributed the vast majority of water to waterways

suddenly choked with algae blooms—could be surprised to learn that they violated their permit requirements. Indeed, the violations were clear enough that,

when people harmed by the blooms sued, the plants

agreed to new limitations on their phosphorus discharges. Order of Dismissal 2–4, MWRD, No. 1:11-cv2937 (Aug. 30, 2017), ECF No. 190.

Petitioner’s other case does not support its claim either. There, a coal mining company acknowledged

during the permitting process that its mine would discharge sulfates and other ions into a waterway. Ohio

Valley Env’t Coal. v. Fola Coal Co., 845 F.3d 133, 136

25 State warns of toxic algae forming on Illinois lakes, rivers,

Chicago Sun-Times (May 28, 2016), bit.ly/3WTNNPS.

D.C. and Northern Virginia residents experienced these harms

firsthand recently: D.C. Water issued a Boil Water Advisory because of algae blooms in the Potomac River. U.S. Army Corps of

Engineers, Washington Aqueduct advises Boil Water Advisory for

District of Columbia and parts of Northern VA (July 3, 2024),

bit.ly/4dCHCXO.

20

(4th Cir. 2017). These discharges would, in turn, raise

the water’s conductivity, a measure of ionic toxicity

that is harmful to aquatic ecosystems. See id. at 136–

38. Its permit contained a limitation that “incorporate[d] [state] narrative water quality standards prohibiting discharges” that “cause . . . or materially contribute” to “[m]aterials in concentrations which are

harmful” to species. Id. at 137–38, 143 & n.8 (quotation omitted). Yet the company’s discharges under the

permit impaired the waterway for years, decreasing

species diversity. Id. at 138. Its responsibility was

never seriously in doubt: “Conductivity and sulfates

notably increased after [the company] began mining”;

the company’s own real-time sampling showed as

much. Ohio Valley Env’t Coal. v. Fola Coal Co., 82 F.

Supp. 3d 673, 696–97 (S.D. W. Va. 2015). And there

was “simply no evidence of another land use activity

. . . that could account for the significantly altered

state of” the waters. Id. at 697. “Even [the company’s]

expert . . . agreed that [its] mining operations caused”

water quality standard violations. Id. The trial court

found a “lack of any meaningful counter-evidence.”

Id. at 698. Unsurprisingly, on appeal, the company

did not claim it could not have known that it had violated the relevant water quality standards, or even

that it did not violate them. See Ohio Valley Env’t

Coal., 845 F.3d at 143–44 & n.8. Instead, it argued

(unsuccessfully) that its permit did not incorporate

those limits at all. See id. at 144.

In other enforcement actions that asserted violations of receiving water limitations, no permitholder

could raise petitioner’s claim here: that it is impossible to know if one has violated these conditions.

In one, a steel mill discharged effluent with elevated

levels of cyanide and ammonia into the Little Calumet

21

River, which flows into Lake Michigan. See Compl.

¶¶ 56, 62, 208, United States v. Cleveland-Cliffs

Burns Harbor LLC, No. 22-cv-26 (N.D. Ind. Feb. 14,

2022), ECF No. 1. The discharges killed 3,000 fish

and forced the National Park Service to close the Indiana Dunes National Park. 26 Was it simply impossible for the mill’s operators to assess whether its discharges “contain[ed] pollutants in the amounts sufficient to be acutely toxic to, or otherwise severely injure or kill aquatic life”? Compl. ¶¶ 97–98, 208. 27

In another, the Metropolitan St. Louis Sewer District discharged “raw sewage to homes, yards, parks,

playgrounds, and streets” and ultimately the Mississippi River and other waterways. Compl. ¶¶ 1, 25,

United States v. Metro. St. Louis Sewer Dist., No. 4:07cv-1120 (E.D. Mo. June 11, 2007), ECF No. 1. Was

there no way the sewer district could assess whether

discharging raw sewage violated a permit term that

incorporated the general “water quality criteria” that

receiving waters not contain “putrescent, unsightly or

harmful bottom deposits,” “oil, scum and floating debris,” and “substances resulting in unsightly color,

turbidity, and offensive odor”? Id. ¶¶ 80–82. Or to

26 Sanya Mansoor, Indiana Cyanide Leak Kills 3,000 Fish and

Shut Down Beaches at America’s Newest National Park, TIME

(Aug. 20, 2019), bit.ly/3WYypSr; Morgan Krakow, Cyanide from

a steel plant trickled into Lake Michigan for days before the public was notified, Wash. Post (Aug. 19, 2019), bit.ly/3WSQMbf.

27 The mill entered into a consent decree that required it to,

among other things, upgrade its equipment to prevent future cyanide and ammonia discharges. Consent Decree 5–6, 8, Cleveland-Cliffs, No. 2:22-cv-26 (May 6, 2022), ECF No. 13; see also

EPA, Cleveland-Cliffs Steel LLC and Cleveland-Cliffs Burns

Harbor LLC Settlement (last updated Feb. 6, 2024),

bit.ly/4dT1IfZ.

22

know, in the face of discharges that “contain organic

matter, bacteria and potential pathogens” known to

“cause . . . diseases in humans such as gastroenteritis,

dysentery, and cholera,” that it violated a standard requiring that those waters not contain substances that

could “result in toxicity to human, animal or aquatic

life”? Id. 28

B. Petitioner’s criticisms of the people who

use the Clean Water Act to protect themselves lack merit.

Petitioner and its amici also offer generic criticisms

of “private plaintiffs” (that is, people) who sue under

the Clean Water Act’s citizen suit provision, but these

criticisms also lack merit.

For one, Clean Water Act citizen suits are not “commonplace.” Nat’l Mining Ass’n Br. 16. A recent study

disproved this common “misperception[].” David E.

Adelman & Jori Reilly-Diakun, Environmental Citizen Suits & The Inequities of Races to the Top, 92 U.

Colo. L. Rev. 377, 382–83, 407–11 (2021). Over the

sixteen-year period from 2001-2016, people sued under the Act’s citizen-suit provision in approximately

100 cases per year, with a “decline after 2011.” Id. at

409–10 & fig. 2. But most of those suits were against

the government, not a permitholder. See id. at 382,

28 The sewer district entered into a consent decree that required it to upgrade its infrastructure. Consent Decree 3, 25–29,

Metro. St. Louis Sewer Dist. (Apr. 27, 2012), ECF No. 159. In the

ten years after the settlement, the sewer district “[e]liminated 76

. . . areas in the sewer system designed to discharge combined

sewer and stormwater during high rain events,” reduced 35.77

million gallons of discharges into the Mississippi River watershed, and mitigated basement backups and overland flooding.

EPA Region 7, Changes to St. Louis Sewer Overhaul Project Recognize Underserved Community (Aug. 17, 2022), bit.ly/3MfAoN3.

23

411–12; see also 33 U.S.C. § 1365(a)(2) (authorizing

suit against the EPA Administrator). There is no reason to think that all, or even many, of the suits against

permitholders were based on violations of permit limits that refer to receiving waters.

Petitioner’s amici see these suits as moneymaking

schemes that do not “benefit the environment.” Loc.

Gov’t Legal Ctr. Br. 23–24. Here too, the data—rather

than invective—says the opposite. For one thing, fee

awards are a rarity. See Adelman & Reilly-Diakun,

supra, at 424–25. For another, even the government

has acknowledged that “a large portion of citizen notices addressed violations that either were worthy of

agency action but had escaped EPA attention or . . .

were appropriate subjects of enforcement action.” Id.

at 398 (citation omitted). And because “virtually all”

suits “settled under consent decrees,” the reasonable

conclusion to draw is that these plaintiffs are “selective,” tending to bring only important, meritorious

cases. See id. at 402–03. 29

The cases petitioner and its amici reference show

that in the rare cases where people sue to enforce permit limitations that turn on conditions in receiving

waters, they do so to stop real harm. See supra at 18–

20 (discussing cases involving discharges from a Chicago reclamation plant and a coal mine).

Raw sewage was the threat in Northwest Environmental Advocates v. City of Portland, 56 F.3d 979 (9th

Cir. 1995) (cited in Loc. Gov’t Legal Ctr. Br. 23; Nat’l

Mining Ass’n Br. 16 n.6). There, Portland discharged

29 The Clean Water Act also includes mechanisms that may

eliminate the need for any suit. Dischargers and regulators must

be given notice sixty days before a suit, which allows dischargers

to address the alleged violations. See 33 U.S.C. § 1365(b).

24

“untreated sewage” into waterways its residents use

for recreation. Id. at 981. “Even the lightest drizzle

could . . . send excrement shooting through outfall

pipes and into the Willamette” River. 30 These discharges violated a permit provision incorporating

state “water quality standards,” which, in turn, included narrative prohibitions that could not “be expressed quantitatively, such as . . . bacterial pollution,

aesthetic conditions, and objectionable matter (scum,

oily sleek, foul odors, and floating solids).” Id. at 985–

86, 989. Because of this suit and other efforts, Portland completed a “sewer overflow control system,” and

the State reports that “very few water samples contain[] unhealthy bacteria levels.” 31

The other cases petitioner and its amici cite similarly involve ordinary people trying to protect their

communities or property. In some, people sought to

stop damage to the lands or waters they own. See New

Manchester Resort & Golf, LLC v. Douglasville Dev.,

LLC, 734 F. Supp. 2d 1326, 1330, 1336–37 (N.D. Ga.

2010) (suit by plaintiff “intend[ing] to build a golf

course, resort, and conference center” brought to stop

neighbor from discharging “sediment-laden storm water” in violation of generic permit provision incorporating “Georgia’s in-stream water quality standards”

relating to turbidity); Swartz v. Beach, 229 F. Supp.

2d 1239, 1247–48, 1270–71 (D. Wyo. 2002) (suit by

rancher to stop discharges by a coal bed methane producer that “destroy[ed] the soil and limit[ed] the

30 Brent Walth, Someone finally has enough of all that crap in

the Willamette, Willamette Week (Nov. 4, 2014), bit.ly/4drEEoK.

31 Oregon Dep’t of Env’t Quality, Fact Sheet: Is it Safe to Swim

in the Willamette River in Portland? (last updated June 2022),

bit.ly/3WWXahB.

25

amount of irrigation water available” for crop production in violation of state standards “incorporated into

a NPDES permit”); Gill v. LDI, 19 F. Supp. 2d 1188,

1194–95 (W.D. Wash. 1998) (suit to stop a neighboring

quarry from polluting a landowner’s pond in violation

of state water quality standards “incorporated into

the permit by reference”). In others, the plaintiffs

sought to protect public waters. See Cal. Sportfishing

Prot. All. v. Chico Scrap Metal, Inc., 728 F.3d 868, 872

(9th Cir. 2013) (suit to stop discharges of copper, lead,

and zinc into the Sacramento River); Nat. Res. Def.

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

1199–1200 (9th Cir. 2013) (suit to stop discharges of

“excessive levels of aluminum, copper, cyanide, zinc,

and fecal coliform bacteria in both the Los Angeles

and San Gabriel Rivers” in violation of water quality

standards incorporated into permit); see also Nw.

Env’t Advocs. v. City of Medford, 2021 WL 2673126, at

*3, 7–9 (D. Or. June 9, 2021) (suit to stop discharges

of phosphorus and nitrogen that caused, among other

things, algae blooms in violation of state water quality

standards incorporated into the permit); San Francisco Baykeeper v. City of Sunnyvale, 2020 WL

7696078, at *3–4, *8 (N.D. Cal. Dec. 28, 2020) (suit to

stop discharges of raw sewage containing bacteria

that “poses a serious risk to fisheries, wildlife habitat

and human health” into South San Francisco Bay and

other local creeks in violation of narrative receiving

water permit limitations). 32

32 The remaining cases petitioner’s amici cite, see Loc. Gov’t Legal Ctr. Br. 23 n.8; Nat’l Mining Ass’n Br. 16 n.6, do not appear

to involve attempts to enforce receiving water limitations incorporated into a permit, nor do they support the generalized criticisms of citizen suits.

26

In sum, neither the available enforcement data nor

the examples that petitioner and its amici highlight

support their criticisms of these enforcement actions.

CONCLUSION

This Court should affirm.

Respectfully submitted,

Linnet Davis-Stermitz

EARTHJUSTICE

810 Third Avenue

Suite 610

Seattle, WA 98104

Kirti Datla

Counsel of Record

Benjamin Chagnon

EARTHJUSTICE

1001 G Street NW

Suite 1000

Washington, DC 20001

202.797.5241

kdatla@earthjustice.org

Counsel for Environmental

and Community Organizations

September 3, 2024