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 FOR THE STATE OF CALIFORNIA AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

ROB BONTA

Attorney General of California

TRACY L. WINSOR

Senior Assistant

Attorney General

RUSSELL B. HILDRETH

Supervising Deputy

Attorney General

MARC N. MELNICK

BRYANT B. CANNON

Deputy Attorneys General

September 3, 2024

MICHAEL J. MONGAN

Solicitor General

CHRISTOPHER D. HU*

Deputy Solicitor General

STATE OF CALIFORNIA

DEPARTMENT OF JUSTICE

455 Golden Gate Avenue

San Francisco, CA 94102-7004

(415) 510-3917

Christopher.Hu@doj.ca.gov

*Counsel of Record

i

TABLE OF CONTENTS

Page

Interests of amicus curiae ........................................... 1

Introduction and summary of argument .................... 2

Argument ..................................................................... 4

I. The Clean Water Act allows general

narrative prohibitions like those at issue

here ........................................................................ 4

II. Petitioner’s policy concerns are

unpersuasive ....................................................... 15

A. The challenged permit provides fair

notice of petitioner’s obligations .................. 15

B. Petitioner’s concerns about

enforcement actions are overstated ............. 21

C. California’s experience shows that

general narrative prohibitions are

workable ........................................................ 26

Conclusion.................................................................. 28

ii

TABLE OF AUTHORITIES

Page

CASES

Arkansas v. Oklahoma

503 U.S. 91 (1992) ...................................... 2, 3, 6, 9

Bethlehem Steel Corp. v. EPA

538 F.2d 513 (2d Cir. 1976).................................... 7

City of Duarte v. State Water Res.

Control Bd.

60 Cal. App. 5th 258 (2021) ................................. 28

City of Milwaukee v. Illinois

451 U.S. 304 (1981) ................................................ 6

City of Modesto Redevelopment Agency

v. Super. Ct.

119 Cal. App. 4th 28 (2004) ................................. 17

County of Maui v. Hawaii Wildlife Fund

590 U.S. 165 (2020) .............................................. 26

EPA v. California ex rel. State Water

Res. Control Bd.

426 U.S. 200 (1976) .................................. 6, 7, 9, 26

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

Los Angeles

725 F.3d 1194 (9th Cir. 2013) ........................ 22, 23

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

Reclamation Dist. of Greater Chicago

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

iii

TABLE OF AUTHORITIES

(continued)

Page

Nw. Env’t Advocs. v. City of Medford

2021 WL 2673126 (D. Or. June 9,

2021) ..................................................................... 22

Nw. Env’t Advocs. v. City of Portland

56 F.3d 979 (9th Cir. 1995) ............................ 11, 21

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

LLC

845 F.3d 133 (4th Cir. 2017) .................... 21, 22, 26

PUD No. 1 of Jefferson County v.

Washington Dep’t of Ecology

511 U.S. 700 (1994) ............................ 5, 8, 9, 11, 24

Sierra Club v. Union Oil Co. of Cal.

716 F. Supp. 429 (N.D. Cal. 1988) ....................... 22

Swartz v. Beach

229 F. Supp. 2d 1239 (D. Wyo. 2002) .................. 22

Van Buren v. United States

593 U.S. 374 (2021) ................................................ 4

iv

TABLE OF AUTHORITIES

(continued)

Page

STATUTES AND REGULATIONS

33 U.S.C.

§ 1251(a) ........................................................... 4, 24

§ 1251(a)(1) ............................................................. 4

§ 1311 ...................................................................... 5

§ 1311(a) ................................................................. 5

§ 1311(b) ............................................................... 12

§ 1311(b)(1)(A) .................................................... 5, 6

§ 1311(b)(1)(C) .......................... 3, 5, 7, 9, 12, 14, 16

§ 1313(c)(2)(A) .................................................... 5, 8

§ 1313(c)(2)(B) ........................................................ 8

§ 1317(a)(1) ............................................................. 8

§ 1342 ...................................................................... 5

§ 1342(a)(1) ............................................................. 5

§ 1342(b)(1)(A) ........................................................ 5

§ 1342(q)(1) ........................................................... 12

§ 1362(11) ............................................................. 12

40 C.F.R.

§ 122.41(j) ............................................................. 13

§ 122.41(l) ............................................................. 13

§ 122.44(d)(1)(i) .................................................... 11

§ 122.44(d)(1)(iii) .................................................. 11

§ 122.44(i)(1)(i) ..................................................... 14

§ 131.11(b)(2) .......................................................... 8

v

TABLE OF AUTHORITIES

(continued)

Page

Cal. Water Code

§ 13050 .................................................................. 17

§ 13050(f) ................................................................ 6

§ 13050(h) ............................................................... 6

§ 13050(k) ............................................................. 17

§ 13050(l) .............................................................. 17

§ 13050(l)(2) .......................................................... 18

§ 13050(m) ............................................................ 17

§ 13050(m)(1) ........................................................ 19

§ 13330 .................................................................. 28

OTHER AUTHORITIES

EPA, Combined Sewer Overflow (CSO)

Control Policy, 59 Fed. Reg. 18,688

(Apr. 19, 1994) .......................................... 12, 13, 16

Healy, Still Dirty After Twenty-Five

Years: Water Quality Standard

Enforcement and the Availability of

Citizen Suits, 24 Ecology L.Q. 393

(1997) .............................................................. 11, 12

In re City of Lowell, 18 E.A.D. 115 (EAB

2020) ............................................................... 12, 26

In re East Bay Municipal Utility District

Order No. R2-2017-1031 (Cal. Reg’l

Water Quality Control Bd., S.F. Bay

Region, Oct. 23, 2017),

https://tinyurl.com/3jex7j4z ................................. 23

vi

TABLE OF AUTHORITIES

(continued)

Page

In re Marin Municipal Water District

Order No. R2-2018-1004 (Cal. Reg’l

Water Quality Control Bd., S.F. Bay

Region, Apr. 9, 2018),

https://tinyurl.com/yr7hp86b ............................... 23

Waste Discharge Requirements for City

and County of San Francisco, North

Point and Southeast Sewerage Zones,

Order No. 84-28 (Cal. Reg’l Water

Quality Control Bd., S.F. Bay

Region, June 20, 1984) ......................................... 27

Waste Discharge Requirements for City

and County of San Francisco,

Richmond-Sunset Plant, Order No.

74-164 (Cal. Reg’l Water Quality

Control Bd., S.F. Bay Region, Dec. 6,

1974) ..................................................................... 27

Waste Discharge Requirements for City

and County of San Francisco,

Richmond-Sunset Plant, Order No.

79-129 (Cal. Reg’l Water Quality

Control Bd., S.F. Bay Region, Oct.

16, 1979) ............................................................... 27

Waste Discharge Requirements for City

and County of San Francisco,

Southeast Plant, Order No. 74-163

(Cal. Reg’l Water Quality Control

Bd., S.F. Bay Region, Dec. 6, 1974) ..................... 27

vii

TABLE OF AUTHORITIES

(continued)

Page

Waste Discharge Requirements for the

City of Manteca, Wastewater Quality

Control Facility, Order No. R5-20210003 (Cal. Reg’l Water Quality

Control Bd., Central Valley Region,

Feb. 18, 2021),

https://tinyurl.com/3a5v7z24 ............................... 10

Waste Discharge Requirements for

Oceanside Treatment Facility and

Southwest Ocean Outfall, Order No.

90-093 (Cal. Reg’l Water Quality

Control Bd., S.F. Bay Region, June

20, 1990) ............................................................... 27

Waste Discharge Requirements for

Southern California Edison

Company, Highgrove Generating

Station, Order No. 74-29 (Cal. Reg’l

Water Quality Control Bd., Santa

Ana Region, Dec. 6, 1974) .................................... 26

Waste Discharge Requirements for the

Westside Treatment Facility and

Southwest Ocean Outfall, Order No.

88-106 (Cal. Reg’l Water Quality

Control Bd., S.F. Bay Region, June

15, 1988) ............................................................... 27

viii

TABLE OF AUTHORITIES

(continued)

Page

Water Quality Control Plan (Basin Plan)

for the California Regional Water

Quality Control Board, Central

Valley Region (2019),

https://tinyurl.com/2z9cr65c ................................ 10

Water Quality Control Plan (Basin Plan)

for the San Francisco Bay Basin

(2024), https://tinyurl.com/5ycznvtv .................... 17

1

INTERESTS OF AMICUS CURIAE

Congress directed EPA to work in partnership with

the States to advance the Clean Water Act’s goal of

eliminating the discharge of pollutants into navigable

waters. This system of cooperative federalism reflects

the States’ traditional power to regulate their water

resources. The State of California implements the Act

through its State Water Resources Control Board and

nine regional water quality control boards. Among

other responsibilities, those boards set and enforce

water quality standards for bodies of water throughout the State.

As part of this cooperative approach, EPA has authorized California and 46 other States to implement

the National Pollutant Discharge Elimination System

(NPDES) program. To carry out this program, California’s water boards issue permits that allow permit

holders to discharge pollutants into navigable waters,

subject to certain conditions. As required by Congress,

these water boards insist on permit conditions necessary to meet water quality standards. Like their counterparts in other States, they routinely include

general narrative prohibitions in their permits to ensure that permit holders do not violate water quality

standards for the receiving waters.

The petitioner in this case contends that the Clean

Water Act forbids the use of these kinds of general

narrative prohibitions. California has an interest in

the proper resolution of that statutory question because this kind of prohibition is both consistent with

the text of the Act and an important tool for advancing

the purposes of the Act. Preventing States from employing such prohibitions would undermine the States’

ability to ensure compliance with water quality standards in the water bodies they are entrusted to protect.

2

In addition to that general interest, California has

a specific interest in the particular prohibitions before

the Court in this case. One of California’s regional water boards—which participated as amicus curiae in

the court below—jointly issued the permit that petitioner challenges here. Although no state entity is a

party to this proceeding, petitioner is currently engaged in related litigation against the same regional

board involving the same permit terms. Petitioner’s

repeated discharges of untreated and partially treated

wastewater will continue to harm the people of California unless controlled through permit conditions like

the ones challenged here. The decision in this case will

therefore affect the State’s ability to protect the San

Francisco Bay, the Pacific Ocean, and other bodies of

water in and around California.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The question presented is whether the Clean Water Act allows general narrative prohibitions, like

those challenged here, which forbid a permit holder

from violating applicable water quality standards for

the receiving waters. Petitioner contends that it does

not, reasoning that the only allowable permit conditions are “effluent limitations, which regulate the nature and contents of a permitholder’s discharges at the

point source.” Pet. Br. 23 (emphasis omitted). As EPA

persuasively explains, petitioner is wrong. EPA Br.

18-47. Effluent limitations that conform to petitioner’s definition are one important part of the Act’s

permitting regime. But Congress intended that water

quality standards would “supplement effluent limitations,” Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992),

and general narrative prohibitions of the type at issue

3

here are a permissible tool—and sometimes an indispensable one—for ensuring compliance with water

quality standards.

EPA has comprehensively addressed the question

of how to parse the relevant statutory text. This brief

focuses on the overall plan of the Act and how it functions in practice. The “achievement of state water

quality standards [is] one of the Act’s central objectives.” Arkansas, 503 U.S. at 106. Those standards

are often described in general, narrative terms. It is

rarely possible to translate every aspect of every applicable water quality standard into detailed effluent

limitations for each discharger. Congress nonetheless

required permits to contain limitations “necessary to

meet water quality standards.”

33 U.S.C.

§ 1311(b)(1)(C). In some circumstances, the best—or

only—way to satisfy that requirement is a general

narrative prohibition. Preserving that type of prohibition allows permitting authorities to satisfy Congress’s directive, while imposing on those who wish to

discharge pollutants the responsibility for making reasonable judgments about how to conduct their activities in a manner that will not violate water quality

standards.

Petitioner’s erroneous interpretation

would thus eliminate an important regulatory tool

that allows permitting authorities to carry out the intent of Congress.

Petitioner’s policy arguments are unpersuasive. It

complains that it “lacks advanced notice” of how to

comply with the challenged prohibitions. Pet. Br. 4.

But the permit in this case provides ample notice

about both the specific and general limitations on petitioner’s discharges. Petitioner fails to identify any

actual operational difficulties it has confronted as a

result of the challenged prohibitions. And petitioner

4

appears to concede the propriety of other permit conditions that similarly require it to exercise reasonable

judgment to comply with general legal standards concerning the effects of its discharges. Petitioner also

invokes the specter of “‘crushing consequences’” in enforcement actions and unwarranted litigation surrounding the meaning of general narrative

prohibitions. Pet. Br. 21. But no such pattern of abuse

has emerged despite widespread use of general narrative prohibitions for decades. On the contrary, California’s experience shows that these prohibitions are

an effective and common-sense regulatory tool that

advances the Act’s goal of achieving water quality

standards.

ARGUMENT

I. THE CLEAN WATER ACT ALLOWS GENERAL NARRATIVE PROHIBITIONS LIKE THOSE AT ISSUE

HERE

To answer the question presented, the Court

should “start where [it] always do[es]: with the text of

the statute.” Van Buren v. United States, 593 U.S. 374,

381 (2021). As EPA explains, the relevant text of the

Clean Water Act does not prevent permitting authorities from imposing general narrative prohibitions like

those at issue here. Consideration of the overall design of the Act, and how it functions in practice, only

bolsters that conclusion.

1. Congress enacted the Clean Water Act “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.” 33 U.S.C.

§ 1251(a). That statutory objective includes a “national goal that the discharge of pollutants into the

navigable waters be eliminated.” Id. § 1251(a)(1). To

achieve that goal, Congress declared that “the dis-

5

charge of any pollutant by any person shall be unlawful” unless otherwise permitted by the Act. Id.

§ 1311(a).

Congress also established the National Pollutant

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

§ 1342. The NPDES program serves as a limited exception to the broad statutory prohibition on discharging pollutants. It allows EPA or an authorized State

to “issue a permit for the discharge of any pollutant,

or combination of pollutants.” Id. § 1342(a)(1). Every

permit must satisfy requirements contained in the Act.

A permit may be issued only “upon condition that such

discharge will meet . . . all applicable requirements

under section[ ] 1311.” Id.; see id. § 1342(b)(1)(A) (directing that state permit programs must “apply, and

insure compliance with, any applicable requirements

of section[ ] 1311”).

Section 1311 sets out two main measures for curbing water pollution, both of which must be incorporated into permits to comply with the Act. First, in

certain circumstances, the Act calls for “effluent limitations” that require use of technology to control pollution at the point of discharge (also known as the

“point source”). 33 U.S.C. § 1311(b)(1)(A). Second—

and in addition to technology-based effluent limitations—the Act requires “any more stringent limitation,

including those necessary to meet water quality standards . . . or required to implement any applicable water quality standard.” Id. § 1311(b)(1)(C).

Water quality standards are primarily set by the

States, subject to EPA approval. As relevant here,

they “consist of the designated uses of the navigable

waters involved and the water quality criteria for such

waters based upon such uses.”

33 U.S.C.

§ 1313(c)(2)(A); see PUD No. 1 of Jefferson County v.

6

Washington Dep’t of Ecology, 511 U.S. 700, 714

(1994). 1 As this Court has recognized, “the achievement of state water quality standards [is] one of the

Act’s central objectives.” Arkansas, 503 U.S. at 106.

Indeed, before 1972, water quality standards were

the primary basis for federal control of water pollution. See EPA v. California ex rel. State Water Res.

Control Bd., 426 U.S. 200, 202-203 (1976). Congress

amended the existing law in 1972 and created the

modern Clean Water Act. See City of Milwaukee v. Illinois, 451 U.S. 304, 317-318 (1981). Among other

things, those amendments required the use of the

technology-based effluent limitations described above.

See 33 U.S.C. § 1311(b)(1)(A); supra p. 5. Those effluent limitations are often expressed numerically, restricting “the quantities, rates, and concentrations of

specified substances which are discharged from point

sources.” Arkansas, 503 U.S. at 101. They provide the

permit holder with precise information about the

“specified levels of treatment to which it must conform.” EPA, 426 U.S. at 204. But Congress did not

intend effluent limitations as a wholesale replacement

for water quality standards. It instead intended the

Act to “achiev[e] maximum ‘effluent limitations’ on

‘point sources,’ as well as achieving acceptable water

quality standards.” Id. (emphasis added).

Effluent limitations and water quality standards

are thus “different concepts,” but they may overlap in

practice because the Act “permit[s] effluent limita1 California law employs the term “‘[b]eneficial uses’” to refer to

designated uses and the term “‘[w]ater quality objectives’” to refer to water quality criteria. Cal. Water Code § 13050(f ), (h); see

Pet. Br. 11 n.4. For the sake of clarity, we use federal terminology

in this brief.

7

tions to be based on water quality standards.” Bethlehem Steel Corp. v. EPA, 538 F.2d 513, 515 (2d Cir.

1976). As a result, a single permit may include both

“technology-based effluent limitations” and “effluent

limitations . . . based on water quality.” EPA, 426 U.S.

at 204-205 (footnote omitted). Effluent limitations in

the latter category are often called “[w]ater qualitybased effluent limitations.” E.g., Pet. App. 10. 2

2. Petitioner contends that the only permit “limitation” that may be imposed as a permit condition under Section 1311(b)(1)(C) is an effluent limitation that

restricts the nature or contents of the permit holder’s

discharges from its point sources. See, e.g., Pet. Br.

24-34. This brief will not repeat EPA’s arguments

about why that misconstrues the broad text of Section

1311(b)(1)(C), which authorizes general narrative prohibitions of the type challenged here. See EPA Br. 2131. Instead, we focus on the tension between petitioner’s construction and the overall plan and function

of the Act. Petitioner ignores important aspects of how

the Act is designed to operate. And petitioner’s erroneous statutory interpretation would deprive permitting

authorities—including

California’s

water

boards—of a tool that is often necessary to carry out

the intent of Congress.

2 In its opening brief, petitioner defines effluent limitations in a

way that excludes the prohibitions challenged here. See, e.g., Pet.

Br. 31-34. By contrast, the court of appeals referred to general

narrative prohibitions as a type of water quality-based effluent

limitations, as did petitioner itself in prior administrative proceedings. See, e.g., Pet. App. 35-36, 431. Regardless of how they

are characterized, these prohibitions are permissible “limitation[s]” under Section 1311(b)(1)(C). See infra pp. 7-14; EPA

Br. 18-47.

8

a. To begin with, petitioner’s argument fails to

contend with the fact that water quality standards are

often described in general, narrative terms—just as

Congress intended.

As noted above, water quality standards include

designated uses and water quality criteria based on

those uses. 33 U.S.C. § 1313(c)(2)(A). Designated uses

are broad, overall objectives such as “‘[r]ecreation’” or

“‘[c]ommerce and navigation.’” E.g., PUD No. 1, 511

U.S. at 706 n.1. Water quality criteria, too, “are often

expressed in broad, narrative terms,” using “openended” language. Id. at 716. Only one provision of the

Act requires water quality criteria to be reduced to

“specific

numerical

criteria.”

33

U.S.C.

§ 1313(c)(2)(B). That provision applies to certain toxic

pollutants. See id.; see also id. § 1317(a)(1) (identifying list of pollutants); PUD No. 1, 511 U.S. at 716 (recognizing this feature of the Act). Aside from that

provision, the Act does not preclude the use of narrative water quality criteria. 3

To the contrary, Congress signaled that water

quality criteria can and often should be defined in general terms. It directed that “standards shall be such

as to protect the public health or welfare, enhance the

quality of water and serve the purposes of ” the Act. 33

U.S.C. § 1313(c)(2)(A). States have followed that guidance. For example, a prior decision from this Court

addressed state water quality criteria that specified

certain numeric criteria—but also broadly stated that

“[t]oxic, radioactive, or deleterious material concentrations shall be less than those which may affect public

3 Consistent with the Act, EPA regulations direct States to estab-

lish “narrative criteria” for water quality “where numerical criteria cannot be established or to supplement numerical criteria.”

40 C.F.R. § 131.11(b)(2) (emphasis added).

9

health, the natural aquatic environment, or the desirability of the water for any use,” and that “[a]esthetic

values shall not be impaired” in ways that “offend the

senses of sight, smell, touch, or taste.” PUD No. 1, 511

U.S. at 706 n.1 (internal quotation marks omitted); see

id. at 716 (observing that water quality criteria may

be “based on . . . ‘aesthetics’”).

California has followed the same approach, including in its state Ocean Plan, which lists water quality

standards for the Pacific Ocean. The Ocean Plan includes numeric water quality criteria, such as quantitative limits on fecal coliform that are intended to

protect the safety of water recreation. J.A. 33-34. But

other criteria take a narrative form, such as the requirements that “[f]loating particulates and grease

and oil shall not be visible,” and that discharges of

waste “shall not cause aesthetically undesirable discoloration” of the ocean surface. Id. at 37.

b. Petitioner also ignores the reality that it is

rarely possible to translate every aspect of applicable

water quality standards into effluent limitations tailored to the discharger.

“[T]he achievement of state water quality standards” is “one of the Act’s central objectives.” Arkansas,

503 U.S. at 106. Permit conditions based on those

standards are intended as a “supplement[ ]” to “strict

technology-based effluent limitations.” EPA, 426 U.S.

at 205 & n.12 (footnote omitted). They ensure that

permit holders “may be further regulated to prevent

water quality from falling below acceptable levels.” Id.

(emphasis added); see also 33 U.S.C. § 1311(b)(1)(C)

(“more stringent limitation[s]” must be imposed when

“necessary to meet water quality standards”); Arkansas, 503 U.S. at 101 (recognizing that water quality

“standards supplement effluent limitations”); cf. PUD

10

No. 1, 511 U.S. at 713-717, 723 (holding that project

certification permits issued under a separate provision of the Act may require conduct “consistent with”

applicable water quality standards).

In some circumstances, it may be possible to translate a water quality standard into a permit condition

defined in terms that are specific to the permit holder.

For example, a water quality standard for the Sacramento and San Joaquin river basins states that “[a]ll

waters shall be maintained free of toxic substances in

concentrations that produce detrimental physiological

responses in human, plant, animal, or aquatic life.”

Water Quality Control Plan (Basin Plan) for the California Regional Water Quality Control Board, Central

Valley

Region

at

3-15

(2019),

https://tinyurl.com/2z9cr65c. One of California’s regional water boards recently addressed that standard when

issuing a municipal wastewater permit to the City of

Manteca. See Waste Discharge Requirements for the

City of Manteca, Wastewater Quality Control Facility,

Order No. R5-2021-0003 at 5-6 (Cal. Reg’l Water Quality Control Bd., Central Valley Region, Feb. 18, 2021),

https://tinyurl.com/3a5v7z24. In developing the permit, the regional water board found that ammonia levels in untreated domestic wastewater had a

reasonable potential to harm aquatic life and thus exceed the relevant water quality standard. Id., Attachment F at 46-51. The board then calculated numeric

ammonia limitations for the permit holder that were

designed to avoid exceedance of the toxicity standard.

Id. at 51; see also id. at 59-63 (providing further detail

on calculations). 4

4 That example implicates a federal regulation requiring permitting authorities to develop “effluent limits for [a] pollutant” if the

(continued…)

11

But “water quality standards ‘often cannot be

translated into effluent limitations,’” a reality that

“Congress recognized” when it amended the Act to

make water quality standards and effluent limitations

“complementary provisions.” Nw. Env’t Advocs. v.

City of Portland, 56 F.3d 979, 989 (9th Cir. 1995). For

example, consider a water quality standard requiring

that “[a]esthetic values shall not be impaired” in ways

that “offend the senses of sight, smell, touch, or taste.”

PUD No. 1, 511 U.S. at 706 n.1, 716 (internal quotation marks omitted). That broad requirement “cannot

be expressed quantitatively” in an effluent limitation.

City of Portland, 56 F.3d at 989. And neither petitioner nor its amici have explained how that kind of

requirement could be expressed effectively in a specific, narrative limitation restricting “the nature or

contents of a permitholder’s discharges from their

point sources.” Pet. Br. 19. Water quality criteria that

broadly prohibit alteration of conditions like “[t]he

natural taste, odor, and color of fish, shellfish, or other

marine resources used for human consumption,” e.g.,

J.A. 39 (Ocean Plan), present similar challenges.

Given those challenges, permitting authorities are

often unable to capture all of the relevant water quality standards in specific effluent limitations tailored to

a permit holder’s discharges. See generally Healy,

Still Dirty After Twenty-Five Years: Water Quality

Standard Enforcement and the Availability of Citizen

Suits, 24 Ecology L.Q. 393, 421-423 (1997). But per-

pollutant’s discharge “will cause” or has “the reasonable potential

to cause” an exceedance of water quality standards. 40 C.F.R.

§ 122.44(d)(1)(i), (iii). But that requirement does not apply in

other circumstances and does not preclude the use of general narrative prohibitions. See EPA Br. 39-40.

12

mitting authorities cannot abdicate their responsibility under the Act to protect water quality standards.

See 33 U.S.C. § 1311(b)(1)(C). General narrative prohibitions fill this gap, serving as a backstop or “‘safety

net’” that allows permitting authorities to address

“water quality violations that a permittee causes due

to unanticipated circumstances or changes to effluent

quality.” In re City of Lowell, 18 E.A.D. 115, 176, 181

(EAB 2020); see Healy, supra, at 428-429 (noting that

specific effluent limitations might not be sufficient to

protect water quality standards because “conditions in

receiving water may change during the five-year term”

of the permit).

In petitioner’s view, however, that important tool

is unavailable. Petitioner asserts that Section 1311(b)

only allows effluent limitations that govern “‘quantities, rates, and concentrations of chemical, physical,

biological, and other constituents which are discharged from point sources,” Pet. Br. 31 (quoting 33

U.S.C. § 1362(11)) (emphasis omitted), or that use

narrative language to “restrict the nature of a point

source’s discharges,” id. at 33 n.22; see id. at 43 n.34.

That flawed interpretation cannot be squared with

Congress’s plan or with decades of actual practice.

Indeed, Congress has signaled that general narrative prohibitions may be particularly appropriate in

the context of combined sewer systems like the one at

issue here. Congress amended the Clean Water Act in

2000 to mandate that permits for combined sewer systems “conform to the Combined Sewer Overflow Control Policy” promulgated by EPA.

33 U.S.C.

§ 1342(q)(1). A “primary objective” of that policy “is to

meet” water quality standards. EPA, Combined

Sewer Overflow (CSO) Control Policy, 59 Fed. Reg.

18,688, 18,694 (Apr. 19, 1994) (CSO Control Policy).

13

The policy requires permits for combined sewer systems to include both numeric and narrative requirements, such as a requirement to “monitor and collect

sufficient information to demonstrate compliance

with” water quality standards. Id. at 18,696. In some

circumstances, the policy requires a general narrative

prohibition—“expressed in the form of a narrative limitation”—that requires the permit holder to “[c]omply

with applicable” water quality standards. Id. Petitioner offers no convincing argument for reconciling

Congress’s express approval of that policy with the

contention that the same type of limitation is forbidden.

c. Finally, petitioner fails to appreciate that when

water quality standards cannot be satisfied using discharger-specific effluent limitations alone, it is typically dischargers who are best positioned to ensure

compliance with the general terms of those standards.

Permit holders understand their own operations.

They know (or should know) what they are discharging from their point sources. And they normally have

the best real-time knowledge of how those discharges

could affect the receiving waters—including because

they are required, under the terms of their permits, to

closely monitor their own activities. See, e.g., 40

C.F.R. § 122.41(j), (l); Pet. App. 174-176, 190-238. If

circumstances arise during the life of a permit that

threaten to impair water quality standards, permit

holders are typically the entities best positioned to respond before standards are violated. Although they

must report to the permitting authority much of the

monitoring data they collect, there is often a delay of

a month or longer. See, e.g., Pet. App. 101-102, 238239.

14

Petitioner defends its interpretation on the ground

that it would enhance flexibility for permit holders.

See, e.g., Pet. Br. 47-48. If petitioner’s interpretation

prevailed, however, it would compel permitting authorities to develop additional, detailed restrictions to

comply with 33 U.S.C. § 1311(b)(1)(C). That would deprive permit holders of the ability to make their own

informed decisions about how to comply with general

narrative prohibitions. It would delay and further

complicate the permitting process. It would increase

compliance costs for permit holders—including as a

result of additional monitoring and reporting requirements. See, e.g., 40 C.F.R. § 122.44(i)(1)(i). And because of the inherent difficulty involved in translating

broad water quality standards into specific effluent

limitations, see supra pp. 11-12, those new and additional limitations might be more burdensome than existing permit limitations, as permitting authorities err

on the side of caution in carrying out their statutory

responsibility to impose “any more stringent limitation . . . necessary to meet water quality standards.”

33 U.S.C. § 1311(b)(1)(C).

To take one example, the Ocean Plan mandates

that “[f]loating particulates and grease and oil shall

not be visible.” J.A. 37. Petitioner’s Oceanside Permit

directs petitioner to adopt certain measures to minimize its discharge of solid and floatable materials, Pet.

App. 123, but does not require petitioner to eliminate

all substances that might potentially float from every

discharge. Instead, the general narrative prohibition

allows petitioner to decide how to comply with the water quality standard for floating particulates. See id.

at 97. If permitting authorities were forced to translate that standard into a specific effluent limitation,

however, they might have to do so in a way that denies

petitioner that flexibility.

15

II. PETITIONER’S POLICY CONCERNS ARE UNPERSUASIVE

Petitioner asserts that the challenged conditions

are “unfair, unworkable, and . . . not an effective way

to protect the waters of the United States.” Pet. Br. 6.

It fails to substantiate those policy arguments and

they are contrary to actual experience.

A. The Challenged Permit Provides Fair Notice of Petitioner’s Obligations

Petitioner first contends that the Oceanside Permit

places it “in an impossible situation,” Pet. Br. 52, by

depriving it “of advance notice of [its] obligations,” id.

at 45. But the permit explains petitioner’s obligations

in detail. And the surrounding circumstances illustrate why it was necessary to include the general narrative prohibitions challenged by petitioner—and why

petitioner is best situated to determine how it will

achieve the water quality standards addressed by

those prohibitions.

1. Petitioner acknowledges that the challenged

permit “comprises over 100 pages of detailed requirements for San Francisco’s discharges and includes

both technology- and water quality-based effluent limitations.” Pet. Br. 15. During dry weather, the permit

imposes technology-based numeric effluent limitations for discharges from a specified wastewater treatment facility. Pet. App. 91-92, 283-284. Other

technology-based numeric limitations apply when petitioner produces recycled water. Id. at 93-94, 284285. The permit additionally imposes effluent limitations based on water quality standards along with corresponding monitoring and reporting requirements.

Id. at 95-96. Petitioner must conduct chronic toxicity

tests to ensure compliance with those limitations. Id.

at 96, 217-225.

16

Different requirements apply during wet weather,

when petitioner must comply with limitations contained in its “Long-Term Control Plan.” Pet. App. 97.

Among other things, that plan requires petitioner to

“store or treat wet weather flows to the maximum extent practicable.” Id. at 128. Petitioner may discharge

partially treated sewage into the ocean only if influent

flow requirements are met. Id. at 128-130. And once

a storm subsides, petitioner must take other steps to

prevent or minimize discharge of partially treated

sewage. See id. at 130-131.

The permit contains additional requirements regarding petitioner’s operation of its sewer system. For

example, petitioner must abide by a set of “nine minimum controls” drawn from the CSO Control Policy.

Pet. App. 93, 112-127; see CSO Control Policy, 59 Fed.

Reg. at 18,691, 18,696; supra pp. 12-13. Those minimum controls require petitioner (among other things)

to maximize the amount of wastewater that receives

treatment before being discharged and minimize the

amount of “solid and floatable materials” that it discharges. Pet. App. 122-123. Further provisions require pre-treatment of sewage, id. at 109-110, and

obligate petitioner to monitor receiving waters for levels of certain bacteria (such as fecal coliform), id. at

226-228.

Although these requirements provide detailed instructions for the day-to-day operation of petitioner’s

sewer system, they do not fully satisfy the permitting

authorities’ obligation to include any limitations “necessary to meet water quality standards.” 33 U.S.C.

§ 1311(b)(1)(C). In particular, the requirements summarized above do not anticipate every way in which

petitioner’s future activities might lead to an exceedance of water quality standards during the five-year

17

life of the permit. That was a legitimate concern for

the permitting authorities, particularly given petitioner’s discharge of at least 100 million gallons of

combined stormwater and wastewater during the

term of its prior permit. Pet. App. 533. To address the

gap between specific limitations and potential violations of water quality standards, EPA and California’s

regional water board included a pair of general narrative prohibitions in the permit. Like similar prohibitions in other permits, “they serve as ‘backstops’ in the

event that more specific limits or provisions prove inadequate.” Id. at 435.

The first challenged prohibition, titled “Receiving

Water Limitations,” bars petitioner’s discharge from

causing or contributing “to a violation of any applicable water quality standard[s] . . . for receiving waters.”

Pet. App. 97. The applicable standards are set forth

in the regional water board’s Water Quality Control

Plan (Basin Plan) for the San Francisco Bay Basin, id.

at 264-268, and the state Ocean Plan (as modified by

a 1979 State Water Resources Control Board order),

id. at 268-274, 288. Both plans list designated uses

and water quality criteria, as required by the Act. See

generally J.A. 22-230; Basin Plan, supra, https://tinyurl.com/5ycznvtv.

The second challenged prohibition is part of a set

of standard provisions imposed by California’s regional water board. See Pet. App. 334-335. Petitioner

objects (in part) to the requirement that “[n]either the

treatment nor the discharge of pollutants shall create

pollution, contamination, or nuisance as defined by

California Water Code section 13050.” Id. at 339; see

Cal. Water Code § 13050(k), (l), (m) (defining the relevant terms); see, e.g., City of Modesto Redevelopment

Agency v. Super. Ct., 119 Cal. App. 4th 28, 37-39

18

(2004) (interpreting “nuisance”). Petitioner does not

appear to contest the prohibition on creating “contamination” or “nuisance.” See Pet. Br. 15-16. But it objects to the prohibition on creating “pollution” because

part of the definition of “pollution” can “include ‘alteration of the quality of the waters of the state . . . which

unreasonably affects . . . [t]he waters for beneficial

uses.’” Id. at 16; see supra n.1. A different part of the

definition of “‘[p]ollution’” includes “‘contamination.’”

Cal. Water Code § 13050(l)(2).

2. Petitioner asserts that these prohibitions make

it “impossible to know precisely what rules apply.”

Pet. Br. 47 (internal quotation marks omitted). But

there is no confusion about which water quality standards apply: those standards are found in the Ocean

Plan and Basin Plan, Pet. App. 264-274, 288, subject

to certain specified exceptions, infra pp. 24-25. Petitioner has not identified any particular provision of

those standards that it thinks is unclear, or any way

in which the general prohibitions requiring compliance with those standards are interfering with its current operations. And petitioner concedes that other

parts of the permit feature “wide-ranging” and “detailed requirements” that explain how it must operate

its combined sewer system. Pet. Br. 15; see, e.g., Pet.

App. 91-97, 112-131.

Petitioner instead contends that it should not be

held directly accountable for the effects of its discharges on the receiving waters. It imagines a world

in which “permitholders can know from the face of

their permits what they must do to comply,” Pet. Br.

47, by looking solely to end-of-pipe effluent limitations

“within the four corners of their permits,” id. at 52.

But there is nothing exceptional about a legal regime

that requires permit holders to exercise reasonable

19

judgment about compliance with general legal standards addressing the effects of their conduct.

Indeed, many aspects of the Oceanside Permit that

are not challenged by petitioner similarly require petitioner to make such judgments by monitoring and

addressing the effects of its conduct on the surrounding environment. For example, petitioner appears to

accept the requirement that it not create “nuisance” as

defined under California law. Pet. App. 339. That requirement turns (among other things) on whether petitioner’s conduct “[i]s injurious to health, or is

indecent or offensive to the senses, or an obstruction

to the free use of property, so as to interfere with the

comfortable enjoyment of life or property.” Cal. Water

Code § 13050(m)(1). Other provisions require petitioner to evaluate “how combined sewer discharges affect receiving water quality,” Pet. App. 133; to “take

all reasonable steps to minimize or prevent any discharge in violation of this Order that has a reasonable

likelihood of adversely affecting human health or the

environment,” id. at 167; and to monitor an area of the

Pacific Ocean and “identify any environmental effects

of the discharge on receiving waters, sediment, or

aquatic life,” id. at 228-229.

Additional permit terms—also not challenged by

petitioner—require petitioner to determine how to

comply with broad narrative requirements in the face

of unpredictable future events. During wet weather,

for example, petitioner must “minimize combined

sewer discharges,” “maximize pollutant removal,” and

“store or treat wet weather flows to the maximum extent practicable.” Pet. App. 128. Likewise, petitioner

must “maximize” the amount of wastewater that receives treatment and “minimize” the amount of “solid

and floatable materials.” Id. at 122-123.

20

The prohibitions challenged here similarly direct

petitioner to make reasonable judgments to ensure

compliance with general standards governing the waters that receive its discharges. Consider the numeric

water quality criteria for fecal coliform, for example.

J.A. 33-34. The Oceanside Permit requires petitioner

to monitor levels of fecal coliform at several locations

in the receiving waters—a requirement that petitioner

does not challenge. Pet. App. 226-228; see also J.A. 33

(Ocean Plan provision directing that compliance with

standards “shall be determined from samples collected

at stations” that are “representative of the area”

where the permit holder discharges pollutants into the

receiving water). If those monitoring efforts reveal

that fecal coliform levels are close to exceeding the numeric criteria at some future point in the lifespan of

this permit, it would hardly be “unfair” or confusing

(Pet. Br. 6, 48) to expect petitioner to adjust its conduct to avoid a violation of those criteria.

Likewise, petitioner is well situated to comply with

the requirement that discharges of waste “shall not

cause aesthetically undesirable discoloration” of the

ocean surface. J.A. 37; see supra p. 13. The Oceanside

Permit already requires petitioner to “monitor to determine the occurrence and apparent impacts of combined sewer discharges,” Pet. App. 127 (emphasis

added); see also id. at 208-209, 211-214; to post warning signs where members of the public may encounter

such discharges, id. at 124-126; and to perform regular

inspections of its point sources, id. at 115-116. If petitioner’s discharges are causing discoloration of the receiving waters, petitioner will likely be the first to

know. 5

5 Although petitioner invokes the possibility of “[c]ontributions to

(continued…)

21

B. Petitioner’s Concerns About Enforcement

Actions Are Overstated

Petitioner also expresses concern that EPA and

private plaintiffs will invoke general narrative prohibitions “as a sword” and inflict “‘crushing consequences’” to “harm permitholders” who lack an

adequate understanding of their obligations. Pet. Br.

5, 21; see id. at 48-52. Real-world experience does not

bear this concern out, and petitioner neglects to mention exemptions that make enforcement actions for violations of the challenged provisions of the Oceanside

Permit unlikely.

1. General narrative prohibitions have existed

since the 1970s. They have been widely employed, including in multiple permits governing petitioner’s

sewer system. See infra pp. 26-27. The Ninth Circuit

has allowed plaintiffs to enforce them through citizen

suits for nearly 30 years, and other courts have also

allowed such actions. City of Portland, 56 F.3d at 986;

see, e.g., Ohio Valley Env’t Coal. v. Fola Coal Co., LLC,

845 F.3d 133, 142 (4th Cir. 2017). If the use of general

narrative prohibitions encourages excessive litigation

by EPA, the States, or private plaintiffs, that would be

apparent by now. Petitioner has identified no such evidence.

Petitioner instead complains that some permit

holders have been “unable to assert permit shield defenses based on their compliance with the specific

terms in their permits,” citing several cases in support

of that complaint. Pet. Br. 49; see id. at 49-50 & n.38.

a receiving water from multiple sources,” Pet. Br. 47, there are

no other dischargers in the area covered by the Oceanside Permit

that could plausibly cause a violation of these standards. See also

EPA Br. 45.

22

But there is nothing remarkable about the proposition

that compliance with some terms in a permit does not

immunize a permit holder when it is alleged to have

violated a different (and more general) term in the

same permit. Three of the enforcement actions cited

by petitioner merely establish that basic proposition.

See Nat. Res. Def. Council, Inc. v. County of Los Angeles, 725 F.3d 1194, 1204-1207 (9th Cir. 2013); Swartz

v. Beach, 229 F. Supp. 2d 1239, 1271-1272 (D. Wyo.

2002); Nw. Env’t Advocs. v. City of Medford, 2021 WL

2673126, at *5 (D. Or. June 9, 2021). The other two

cases demonstrate only that determining liability for

violating a general narrative prohibition sometimes

requires “judicial fact finding,” Pet. Br. 49—hardly a

novel phenomenon, and certainly not one that establishes “unfairness,” id. at 48; see Fola Coal, 845 F.3d

at 137-138; Nat. Res. Def. Council v. Metro. Water Reclamation Dist. of Greater Chicago, 175 F. Supp. 3d

1041, 1062 (N.D. Ill. 2016). 6

While disputed facts may sometimes lead to prolonged litigation, in other circumstances general narrative prohibitions allow for prompt resolution of

obvious, clearly injurious, and acknowledged violations of water quality standards. In one example involving the same regional water board that issued the

Oceanside Permit, a local water district allegedly discharged over 100,000 gallons of chlorinated potable

water, killing various species of fish. In re Marin Municipal Water District, Order No. R2-2018-1004 at 1

6 In practice, instead of focusing on costly litigation about dis-

puted facts, citizen suits are often based on a permit holder’s admitted violation of an effluent limitation that the permit holder

has publicly reported to the permitting authority. See, e.g., Sierra Club v. Union Oil Co. of Cal., 716 F. Supp. 429, 434 (N.D.

Cal. 1988).

23

(Cal. Reg’l Water Quality Control Bd., S.F. Bay Region,

Apr. 9, 2018), https://tinyurl.com/yr7hp86b. The relevant permit did not contain an effluent limitation for

chlorine concentrations in potable water that applied

to such unplanned discharges. Nevertheless, the fish

kill exceeded toxicity criteria for the receiving waters,

thereby violating the general narrative prohibition in

the permit. Id. Based on that prohibition, the water

district and the regional water board promptly agreed

to resolve the matter. Id. at 2. The water district stipulated to a modest penalty, with part of that penalty

suspended pending completion of a remediation project. Id. at 2-5. Another case involving alleged discharges of chlorinated potable water led to a similar

stipulated resolution. See In re East Bay Municipal

Utility District, Order No. R2-2017-1031 at 1-14 (Cal.

Reg’l Water Quality Control Bd., S.F. Bay Region, Oct.

23, 2017), https://tinyurl.com/3jex7j4z.

When violations of general narrative prohibitions

cannot be resolved out of court, enforcement actions to

ensure compliance with water quality standards are

appropriate tools to advance the purposes of the Clean

Water Act. A prominent California example is the Los

Angeles stormwater litigation discussed in County of

Los Angeles, 725 F.3d 1194. The permit in that case

generally prohibited violations of applicable water

quality standards. Id. at 1199. The flood control district’s own monitoring data revealed 140 separate violations of the standards, “including excessive levels of

aluminum, copper, cyanide, zinc, and fecal coliform

bacteria.” Id. at 1200. That undisputed evidence established a permit violation. Id. at 1210.

More recently, EPA and one of California’s regional

water boards sued petitioner after years of dialogue

24

failed to remedy petitioner’s repeated permit violations—including violations of the general narrative

prohibitions in the Bayside Permit, which governs the

eastern half of petitioner’s sewer system. See Complaint ¶¶ 93-98, United States v. City & Cnty. of San

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

(ECF No. 1). Petitioner now expresses confusion about

why that action was brought and what “it must do to

avoid the risk of liability.” Pet. Br. 51. As the complaint details, however, petitioner’s repeated discharges during combined sewer overflows exposed

“surfers, swimmers, and others recreating on beaches”

to “untreated sewage, which contains pathogens and

high enterococci and E.coli bacteria levels.”

Compl. ¶ 1. The complaint not only alleges a violation

of a general narrative prohibition, it identifies the water quality standards at issue. See, e.g., id. ¶¶ 106,

110. It also explains that petitioner’s self-reported

monitoring data for the receiving waters helped

demonstrate violations of those standards. See id.

¶¶ 90, 109. That action (which is currently stayed

while the parties pursue mediation) exemplifies why

general narrative prohibitions should remain available as a backstop in cases involving allegations of conduct that imperils the “integrity of the Nation’s

waters.” 33 U.S.C. § 1251(a).

2. Petitioner’s complaints about unfair and excessive enforcement actions ring particularly hollow in

the context of this dispute over the Oceanside Permit.

Although neither the petition for a writ of certiorari

nor the opening brief acknowledges it, petitioner enjoys significant exemptions from complying with the

water quality standards that would normally apply to

discharges covered by that permit.

25

The Oceanside Permit makes clear that its general

prohibition on causing or contributing to an exceedance of water quality standards is subject to “the exception set forth in State Water Board Order No. WQ

79-16.” Pet. App. 97; see id. at 270-274. That order

grants petitioner “an exemption to the Ocean Plan to

allow an average of eight [combined sewer] overflows

per year.” J.A. 16. During those wet-weather overflows, petitioner may discharge combined sewage and

stormwater into the Pacific Ocean, and is “excepted

from the requirements of the Ocean Plan”—that is, the

water quality standards that would otherwise apply—

so long as it meets conditions listed in the order. Id.

at 20. The permit grants a similar exemption from the

Basin Plan’s prohibition on discharging certain

wastewater. Pet. App. 265-268.

With those exemptions in place, it is unlikely that

petitioner would face an enforcement action for violating the challenged narrative prohibitions in the

Oceanside Permit. Petitioner could conceivably violate the permit by allowing a combined sewer overflow

in dry weather, or by failing to follow required procedures during a wet-weather overflow. See Pet. App.

122-123, 128-131. In those scenarios, however, petitioner’s conduct would already constitute a direct violation of a different term of the permit. See id.

Petitioner’s failure to acknowledge or explain its exemptions from the otherwise applicable water quality

standards is further evidence that its assertions about

“the crushing consequences” of the challenged permit

conditions (Pet. Br. 21 (internal quotation marks omitted)) should be viewed with skepticism.

26

C. California’s Experience Shows That General Narrative Prohibitions Are Workable

Finally, petitioner asserts that general narrative

prohibitions are “unworkable.” Pet. Br. 6. Regulatory

experience in California and other States demonstrates otherwise. Cf. County of Maui v. Hawaii Wildlife Fund, 590 U.S. 165, 177-178 (2020) (observing that

“longstanding regulatory practice” showed that EPA’s

approach to a different aspect of the Clean Water Act

was “administratively workable”).

NPDES permits have long featured prohibitions

like the ones challenged here. See, e.g., Fola Coal, 845

F.3d at 141-142 & n.5 (discussing examples from West

Virginia, New Hampshire, Oregon, California, and Illinois); City of Lowell, 18 E.A.D. at 176 (addressing

Massachusetts example and noting that “permitting

authorities have frequently included” such prohibitions “alongside more specific ‘end of pipe’ pollutantspecific effluent limits”). In West Virginia, for example, general narrative prohibitions were inspired by

similar provisions in surface coal mining regulations

and were incorporated into NPDES permits beginning

in 1984. See Fola Coal, 845 F.3d at 141.

California’s experience is consistent with national

practice. California was the first State authorized to

administer its own NPDES permit program. EPA, 426

U.S. at 209. The State’s water boards have employed

general narrative prohibitions since the 1970s. See,

e.g., Waste Discharge Requirements for Southern California Edison Company, Highgrove Generating Station, Order No. 74-29 at 7 (Cal. Reg’l Water Quality

Control Bd., Santa Ana Region, Dec. 6, 1974). The regional water board that issued the permit at issue here

has been using general narrative provisions in most of

its individual permits since the early 1990s. Pet. App.

27

519. California’s State Water Resources Control

Board and its regional water boards continue to make

regular use of permit terms that are functionally identical to those challenged here.

Petitioner, too, has long been familiar with this

type of provision. It was subject to general narrative

prohibitions from the 1970s through the 1990s, in

sewer-related permits that preceded the Oceanside

Permit. See, e.g., Waste Discharge Requirements for

Oceanside Treatment Facility and Southwest Ocean

Outfall, Order No. 90-093 at 12 (Cal. Reg’l Water

Quality Control Bd., S.F. Bay Region, June 20, 1990);

Waste Discharge Requirements for the Westside Treatment Facility and Southwest Ocean Outfall, Order No.

88-106 at 14 (Cal. Reg’l Water Quality Control Bd., S.F.

Bay Region, June 15, 1988); Waste Discharge Requirements for City and County of San Francisco, Richmond-Sunset Plant, Order No. 79-129 at 5 (Cal. Reg’l

Water Quality Control Bd., S.F. Bay Region, Oct. 16,

1979); Waste Discharge Requirements for City and

County of San Francisco, Richmond-Sunset Plant, Order No. 74-164 at 5 (Cal. Reg’l Water Quality Control

Bd., S.F. Bay Region, Dec. 6, 1974). 7

If petitioner’s workability concerns were genuine,

evidence of regulatory confusion and disarray should

have emerged long ago. But petitioner points to no

7 The same is true for petitioner’s permits that preceded the Bayside Permit. See, e.g., Waste Discharge Requirements for City and

County of San Francisco, North Point and Southeast Sewerage

Zones, Order No. 84-28 at 5 (Cal. Reg’l Water Quality Control Bd.,

S.F. Bay Region, June 20, 1984); Waste Discharge Requirements

for City and County of San Francisco, Southeast Plant, Order No.

74-163 at 6 (Cal. Reg’l Water Quality Control Bd., S.F. Bay Region, Dec. 6, 1974).

28

such evidence, relying instead on unsupported assertions about its own confusion. Despite those assertions, petitioner waited for decades to bring this

federal challenge—and has never previously invoked

the available state-court mechanism for challenging

this permit condition. See Cal. Water Code § 13330;

Pet. Br. 15 n.9; see generally City of Duarte v. State

Water Res. Control Bd., 60 Cal. App. 5th 258, 266-268

(2021).

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted,

ROB BONTA

Attorney General of California

MICHAEL J. MONGAN

Solicitor General

TRACY L. WINSOR

Senior Assistant Attorney General

CHRISTOPHER D. HU

Deputy Solicitor General

RUSSELL B. HILDRETH

Supervising Deputy

Attorney General

MARC N. MELNICK

BRYANT B. CANNON

Deputy Attorneys General

September 3, 2024