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,

v.

PETITIONERS,

ENVIRONMENTAL PROTECTION AGENCY,

RESPONDENT.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMICUS CURIAE BRIEF FOR WASHINGTON,

MASSACHUSETTS AND ELEVEN OTHER STATES IN

SUPPORT OF RESPONDENT

ANDREA JOY CAMPBELL

Attorney General of

Massachusetts

HELEN YURCHENCO

EMILY MITCHELL FIELD

Assistant Attorneys General

One Ashburton Pl.

Boston, MA 02108

617-727-2200

helen.yurchenco@mass.gov

emily.field@mass.gov

ROBERT W. FERGUSON

Attorney General of

Washington

KELLY T. WOOD

Senior Counsel

PETER B. GONICK

Deputy Solicitor General

Counsel of Record

1125 Washington St. SE

Olympia, WA 98504-0100

360-753-6200

kelly.wood@atg.wa.gov

peter.gonick@atg.wa.gov

(Additional Counsel Listed On Signature Page)

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................. iii-v

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

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

ARGUMENT................................................................ 8

I.

NO PARTY HERE QUESTIONS THE

GENERAL USE OF NARRATIVE

PERMIT CONDITIONS ........................... 8

II.

COMBINED SEWER OVERFLOWS ARE

A MAJOR SOURCE OF WATER

POLLUTION............................................. 9

III. THE CLEAN WATER ACT AUTHORIZES

NARRATIVE PERMIT LIMITATIONS

PROHIBITING DISCHARGES FROM

VIOLATING WATER QUALITY

STANDARDS .......................................... 13

A. Compliance With State-Defined Water

Quality Standards Is a Bedrock

Principle of the Clean Water Act and

NPDES Permits................................. 13

B. The Clean Water Act Authorizes the

Receiving Water Condition Challenged

in This Case ....................................... 15

C. The Challenged Conditions in the

City’s Permit Are Not Vague and

Provide Ample Metrics for

Compliance ........................................ 19

ii

IV. NARRATIVE CONDITIONS GENERALLY

REQUIRING COMPLIANCE WITH

WATER QUALITY STANDARDS ARE

CRITICALLY IMPORTANT TO

BALANCING THE MANDATE OF

ADDRESSING WATER POLLUTION

WITH NECESSARY FLEXIBILITY FOR

PERMITTEES ........................................ 22

A. Water Quality Problems Can Occur

Despite Compliance with Numeric

Effluent Limitations.......................... 22

B. General Narrative Prohibitions Are

Frequently Used as a Flexible

Alternative to Strict Numerical

Limits ................................................. 26

CONCLUSION .................................................. 30

iii

TABLE OF AUTHORITIES

Cases

American Paper Inst. v. EPA,

996 F.2d 346 (D.C. Cir. 1993) ................................14

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ............................................13, 14

County of Maui v. Hawaii Wildlife Fund,

590 U.S. 165 (2020) ................................................23

Commodity Futures Trading Comm’n v. Schor,

478 U.S. 833 (1986) ................................................19

EPA v. California,

426 U.S. 200 (1976) ................................................18

In re Ketchikan Pulp Co.,

7 E.A.D. 605, 1998 WL 284694

(E.P.A. May 15, 1998) .................................. 7, 23, 26

Md. Dep’t of Env’t v. Anacostia Riverkeeper,

134 A.3d 892 (Md. Ct. App. 2016) .........................28

Nat’l Ass’n of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ............................................6, 17

Ohio Valley Env’tl Coal. v. Fola Coal Co.,

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

Okanogan Highlands All. v. Crown Res. Corp.,

492 F. Supp. 3d. 1149 (W.D. Wash. 2020) ............25

PUD No. 1 of Jefferson County v. Wash. Dep’t of

Ecology,

511 U.S. 700 (1994) .................6, 9, 16, 17, 18, 25-26

Puget Soundkeeper All. v. Wash. Dep’t of Ecology,

2023 WL 5713819 (Wash. Ct. App. 2023) .......28, 29

Puget Soundkeeper All. v. Wash. Dep’t of Ecology,

9 P.3d 892 (Wash. Ct. App. 2000) .........................29

Sosa v. Alvarez-Machain,

542 U.S. 692 (2004) ................................................15

iv

Statutes

33 U.S.C. § 1251(b) ....................................................13

33 U.S.C. § 1311 ..................................................14, 16

33 U.S.C. § 1311(a) ................................................6, 16

33 U.S.C. § 1311(b)(1)(A)-(C) ....................................15

33 U.S.C. § 1311(b)(1)(C)............... 6, 14, 15, 16, 17, 22

33 U.S.C. § 1312 ....................................................... 16

33 U.S.C. § 1313 ........................................................14

33 U.S.C. § 1316 ........................................................16

33 U.S.C. § 1317 ........................................................16

33 U.S.C. § 1319(d) ....................................................12

33 U.S.C. § 1341 ..................................................17, 26

33 U.S.C. § 1342 ........................................................16

33 U.S.C. § 1342(q)(1)............................................7, 18

33 U.S.C. § 1344 ........................................................16

33 U.S.C. § 1362(11) ............................................15, 22

33 U.S.C. § 1370 ........................................................14

Wash. Rev. Code § 90.48.520 (2024) .........................29

Regulations

40 C.F.R. § 122.44(d) .................................................14

40 C.F.R. § 122.62 ............................................... 23-24

40 C.F.R. § 130.2(d) ...................................................14

40 C.F.R. § 131.3(b) ...............................................9, 17

40 C.F.R. § 131.6 .......................................................14

59 Fed. Reg. 18,688 ...............................................7, 18

Other Authorities

118 Cong. Rec. 16,882 (1972) ....................................15

2024 Wash. Phase I Municipal Stormwater

Permit .................................................................... 28

Compl., Commonwealth of Massachusetts v. Specialty

Minerals Inc., No. 1:24-cv-11181

(D. Mass., May 3, 2024) .........................................24

v

Compl., United States v. City & County of San

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

2024) ...................................................................... 11

Di Jin et al., Evaluating Boston Harbor Cleanup: An

Ecosystem Valuation Approach, Front. Mar. Sci.

5:478 (2018). ............................................................2

Melissa K. Scanlan & Stephanie Tai,

Marginalized Monitoring: Adaptively Managing

Urban Stormwater,

31 UCLA J. Envtl. L. & Pol’y 1 (2013) ..................28

1

INTEREST OF AMICI CURIAE

Amici, the State of Washington, the

Commonwealth of Massachusetts, along with the

states of Connecticut, Illinois, Maine, Maryland,

Michigan, Minnesota, New Jersey, Oregon,

Wisconsin, the Commonwealth of Pennsylvania, and

the District of Columbia (Amici States), have powerful

economic, environmental, and sovereign interests in

the continued use of narrative effluent limitations to

ensure compliance with state Water Quality

Standards under the Federal Clean Water Act.

As with water quantity, water quality is the

lifeblood of a healthy community. Each of Amici

States have long traditions of enacting and enforcing

strong protections for the waters their residents rely

on for recreating, fishing, drinking, and providing

critical aquatic habitat, and for which amici act as

stewards. Many of Amici States’ efforts pre-date the

Clean Water Act. And, from headwaters in the

Olympic Mountains to Boston Harbor, Amici States

have been tireless in efforts to balance economic

interests with protecting waters within their

jurisdictions—including some of the last remaining

untouched and most critically threatened waters in

the Nation.

This case involves regulation of a serious threat

to those waters—combined sewer overflows, or CSOs,

that risk the health and quality of life for millions of

Americans. CSOs are point source discharges that,

following heavy rains, can result in releases of raw

sewage to rivers, lakes, beaches, and creeks, onto

streets and sidewalks and into homes throughout

urban areas. By their very nature, these events

2

typically occur in populated areas and involve

discharges into waters that are already stressed

significantly by pollution.

Regulation of CSOs and wastewater treatment

facilities under the Clean Water Act can be

transformative. As just one example, two municipal

treatment plants in the Boston area discharged a total

of 350 million gallons of untreated wastewater each

day into Boston Harbor as of the early 1980s. Di Jin

et al., Evaluating Boston Harbor Cleanup: An

Ecosystem Valuation Approach, Front. Mar. Sci.

5:478, 2 (2018). The cleanup of that heavily polluted

waterbody, spurred by Clean Water Act enforcement,

has transformed Boston Harbor from the “dirtiest

harbor in America” to a “Great American Jewel.” Id.

Communities surrounding Boston Harbor have, as a

result, seen a significant economic boost from both

regained ecosystem services and economic growth

along the waterfront. Id. at 10-11.

As permitting authorities under state law and

the Clean Water Act, Amici States have, along with

their federal and local government partners, long

sought to address CSO events and other wastewater

problems. And because in many states the

municipalities that are responsible for stormwater

and sewer collection and treatment are also

instruments of the states, Amici States have

remained particularly sensitive to the difficulties

municipalities face when it comes to dealing with and

preventing CSOs. As a result, Amici States have—to

the extent permitted by law—steered away from

relying solely on strict, numeric effluent limitations

for municipal permits in favor of more collaborative

approaches. These approaches include using

3

narrative receiving water limitations as a backstop to

ensure that permits (which the Clean Water Act

dictates must include conditions necessary to prevent

violations of state Water Quality Standards) can

effectively address significant water quality issues

without overly burdening regulated entities.

Contrary to the allegations of heavy-handed

enforcement by Petitioners, the City and County of

San Francisco (the City), and amici supporting the

City, such conditions promote collaboration between

regulators and local governments. This collaboration

then allows deployment of compliance schedules and

adaptive management approaches—tools that

promote reasonable timelines for municipalities to

install incremental upgrades and enhancements,

enabling them to remain in compliance with permit

conditions and, in some instances, shielding them

from enforcement by states, the Environmental

Protection Agency (EPA), and citizen suit plaintiffs.

The alternative, forcing regulators to rely solely on

strict and rigid permit conditions, or prohibiting CSOs

outright, would result in more burdensome

limitations being placed within permits and increased

citizen suits against both permitting authorities and

regulated entities. Amici States’ interests here are,

thus, substantial.

SUMMARY OF ARGUMENT

Like many municipalities throughout the

country, the City operates systems that transport

untreated

domestic

sewage,

industrial

and

commercial wastewater, and stormwater run-off to

facilities for treatment prior to discharge. During

periods of wet weather, however, stormwater can

4

overrun the system’s capacity, causing untreated

discharges of combined stormwater and raw sewage—

from untold and unknown sources throughout the

area—to receiving waters. These events are referred

to as combined sewer overflows, or CSOs. During each

CSO event, literally millions of gallons of human

waste and a soup of other dangerous contaminants are

discharged unchecked from point sources into waters

that are used for swimming, fishing, and recreating,

and that provide habitat for countless species. And, as

the residents of San Francisco have discovered, during

CSO events raw sewage mixed with stormwater can

also overflow into streets, sidewalks, businesses, and

even into homes.

While national policy, and most municipalities

operating combined sewage and stormwater systems,

aim for no more than one CSO event per year, the

City’s National Pollutant Discharge Elimination

System (NPDES) permit allows it an average of eight

CSOs annually, enabling it to legally discharge large

amounts of untreated sewage into surrounding

waters. But that generous allowance must still be

bounded such that it comports with the Clean Water

Act’s mandate that discharge permits include

conditions necessary to prevent violations of state

Water Quality Standards. The City’s NPDES permit

achieves that balance by, inter alia, the use of

narrative conditions that require compliance with

state standards.

The City’s position is both inconsistent with the

statutory language and would prevent NPDES

permitting authorities from allowing this kind of

flexibility in the future. Instead, permitting

authorities would be forced to impose more

5

burdensome prohibitions in NPDES permits so as to

ensure compliance with the Clean Water Act, thereby

exposing municipalities to higher costs, operational

constraints, and liability to third parties.

The Court should reject the City’s arguments

here and uphold the Ninth Circuit’s decision.

I. The Court should adhere to the narrow

question at hand, namely, whether general narrative

prohibitions to ensure discharges comply with state

Water Quality Standards are within the authority

granted by Congress in the Clean Water Act. No party

here questions the use of narrative permit conditions

in general, including the City. And multiple amici for

the City urge the Court to refrain from any ruling that

calls their use into question—as do Amici States. The

consequences of doing otherwise would have profound

and drastic impacts on NPDES permits throughout

the country.

II. CSOs are a significant source of pollution for

millions of Americans, including the residents of the

San Francisco region. While the City characterizes

itself as the target of an unfair and heavy-handed

system, in fact the City is facing liability here because

of repeated and systematic failures to execute on

multiple of its permit obligations and in a way that

has resulted in confirmed violations of Water Quality

Standards in waters that millions of San Francisco

residents and visitors rely upon. Indeed, neither the

City nor any of its amici point to an actual instance of

a permittee otherwise in compliance with permit

requirements being penalized for the condition of the

receiving waters rather than their own conduct.

6

III. The City is incorrect on the merits.

Compliance with state-defined Water Quality

Standards is a foundational requirement for NPDES

permits. It is also part of the bedrock of “cooperative

federalism” upon which the Clean Water Act is based,

whereby Congress expressly preserved the primary

rights of states to define and enforce the quality of

waters within their respective borders.

To those ends, narrative permit conditions that

generally prohibit discharges violating state Water

Quality Standards are fully within the authority

Congress granted. Section 1311(b)(1)(C) of the Clean

Water Act, and its reference to using “any more

stringent limitation” to meet state Water Quality

Standards, means just what it says. It authorizes any

limitation necessary to ensure that a permittee’s

discharges satisfy state standards, which naturally

includes conditions prohibiting discharges that

violate those same standards. Section 1311(a)

confirms this by prohibiting any discharges except

those that comply with, among other things, state

Water Quality Standards. Permit conditions

expressly prohibiting discharges that would fail to

meet Water Quality Standards are squarely within

this authority. Indeed, this Court has previously

recognized that section 1311(b)(1)(C) goes beyond

authorizing imposition of “effluent limits” and

recognized that dischargers may be “further

regulated” where water quality falls below acceptable

levels “despite individual compliance with effluent

limitations.” PUD No. 1 of Jefferson County v. Wash.

Dep’t of Ecology (PUD No. 1), 511 U.S. 700, 704 (1994);

Nat’l Ass’n of Mfrs. v. Dep’t of Def., 583 U.S. 109, 122

(2018). The City presents no compelling reason to

7

depart from this logical conclusion now. And, even if

the Clean Water Act did not already grant authority

to use general narrative prohibitions, Congress

separately authorized their use when it gave EPA’s

CSO Control Policy, which requires CSO permits to

contain narrative conditions mandating compliance

“with applicable WQS,” the force of law. 59 Fed. Reg.

18,688 at 18,696 (April 19, 1994); 33 U.S.C.

§ 1342(q)(1). The conditions at issue here are fully

authorized.

IV. Finally, narrative conditions requiring

compliance with Water Quality Standards make

sense. It is often difficult to know all potential

pollutants and all potential discharge sources at the

time of permit issuance. As EPA has noted, “to include

in the permit a list of every pollutant or combination

of pollutants that conceivably might be contained in

the applicant’s wastestreams, and to determine which

of those pollutants the Agency considered appropriate

for discharge . . . . would be an unduly burdensome

and costly, and ultimately, impractical [approach].” In

re Ketchikan Pulp Co., 7 E.A.D. 605, 618 1998 WL

284694 (E.P.A. May 15, 1998). But this burdensome,

costly, and impractical approach is exactly what the

City proposes here. The result would be added

burdens and more onerous conditions on permittees

with, paradoxically, fewer environmental protections.

The Court should affirm the decision below.

8

ARGUMENT

I. NO PARTY HERE QUESTIONS THE

GENERAL USE OF NARRATIVE PERMIT

CONDITIONS

This case presents a narrow question: does the

Clean Water Act authorize NPDES permits that

include general or, as the City labels them, “generic”

prohibitions to ensure discharges comply with state

Water Quality Standards? As discussed herein, the

answer to that question is an emphatic “yes.”

But, at the outset, it is critical to note that all

parties, including amici supporting the City, agree

that the use of narrative effluent criteria is not

challenged or at issue here.1 The City, indeed, itself

makes clear that it has “no objection to narrative

effluent limitations” in general. Pet’r Br. 4. Multiple

amici supporting the City also strenuously urge the

Court to refrain from issuing any ruling that calls into

question the use of narrative effluent limitations. See,

e.g., Br. of Amicus Curiae Nat’l Ass’n of Homebuilders

7 (asking the Court “not [to] disturb the wellestablished precedent of using descriptive nonnumerical narrative effluent limitations”).

Those calls to preserve the ability of permitting

authorities to use narrative effluent limitations in

general are well founded. As amicus curiae Local

Government Legal Center points out, “[n]arrative

effluent limitations are a critical part of NPDES

1 Narrative effluent limits impose permit requirements

that do not use numeric limits on discharges.

9

permits and are the preferred method in many

circumstances, especially for difficult situations such

as stormwater management.” Br. of Amicus Curiae

Local Gov’t Legal Ctr. 5. For example, narrative

effluent limitations may require the use of certain

“Best Management Practices” or may set out

schedules of compliance, whereby permittees improve

discharge conditions over time. And, as this Court has

previously recognized, permit limitations may—

consistent with the Clean Water Act—expressly

require permittees to ensure compliance with broad,

narrative state Water Quality Standards. PUD No. 1,

511 U.S. at 715-16 (citing 40 C.F.R. § 131.3(b))

(cleaned up).

These tools are critically important for

ensuring that permits are legally defensible while also

avoiding being overly rigid. They are essential for both

permitting authorities and permittees alike, and this

case does not call them into question. Amici States

therefore join the City and its amici in respectfully

submitting that the Court’s decision in this case

should reflect and not infringe upon this critical and

well-established approach to developing effluent

limits for NPDES permits.

II. COMBINED SEWER OVERFLOWS ARE A

MAJOR SOURCE OF WATER

POLLUTION

Most communities in the United States have

separate sanitary sewer and stormwater systems,

with residential and industrial sewer wastes and

stormwater travelling through different pipes to

10

different treatment facilities.2 Like San Francisco,

however, many cities still utilize a combined sewer

system, with both sewage and stormwater travelling

through the same pipes. During dry weather, flows

are low enough to ensure that all wastewater is routed

for treatment before it is discharged. But during rain

events, stormwater can overwhelm treatment system

capacity; at that point, raw sewage combined with

stormwater flows into permitted outfalls that

discharge untreated (or minimally-treated) waste to

nearby waters. The resulting CSOs are a major source

of pollution and public health hazard for over 700

communities throughout the United States.3

The facts of this case are an unfortunate

example of what can happen when CSOs occur in a

system that has not been adequately operated or

maintained. The City is not facing enforcement

liability here because EPA and California suddenly or

arbitrarily decided Water Quality Standards were not

being met. Nor is the City facing enforcement because

of some independent change in the status of the

receiving waters (the Pacific Ocean and San Francisco

Bay). The City faces enforcement because it has

repeatedly violated numerous specific requirements

in its permits and failed to prevent excessive CSO

events, resulting in significant water quality problems

in the Bay Area—many of which the City’s own

reports and monitoring have documented.4 It is these

basics.

2 https://www.epa.gov/npdes/combined-sewer-overflow-

3 Id.

4 As documented in the enforcement action involving the

City’s Bayside permit cited in its merits brief, Pet’r Br. 13 n.6,

11

many, excessive violations and their direct impacts

that led regulators to the inescapable conclusion that

the City is also violating the permit requirement that

it not cause or contribute to Water Quality Standard

violations or otherwise create a nuisance under

California law. That conclusion is backed by

monitoring data that demonstrates that the City’s

wastewater facilities are—in fact—discharging

wastewater that is causing exceedances of established

Water Quality Criteria, including bacteria, dissolved

copper, ammonia, and floating particulate matter

(e.g., human waste and toilet paper), among others.5

the problems stem from a variety of factors largely within the

City’s control. Since 2016, the City has discharged approximately

eleven billion gallons of combined sewage into the waters

surrounding San Francisco. Compl. ¶ 70, United States v. City &

County of San Francisco, No. 3:24-cv-02594 (N.D. Cal. May 1,

2024), https://perma.cc/HT8M-SS35. During that same

timeframe, the City also “failed to adequately assess the

condition of, and undertake timely repair or replacement of”

critical infrastructure, “despite being aware that infrastructure

was leaking, past its useful life, or otherwise required

replacement or repairs.” Id. ¶ 136. This includes leaks from pipes

that the City knew were discharging untreated effluent into a

creek for five years. Id. The City’s failure to maintain

infrastructure has also led to discharges of sewage into

residential basements, streets, and sidewalks. Id. ¶ 141. The City

has also failed to comply with other permit requirements,

including by failing to operate at “required flow rates or design

capacities; failing to maximize treatment at wet weather

facilities; and failing to operate facilities at all.” Id. ¶ 129. This

includes, at times, discharging untreated sewage “to San

Francisco Bay, its tributaries, or the Pacific Ocean when [the

City’s] systems had capacity to treat the combined sewage.” Id.

(emphasis added). Most of these issues are documented by the

City’s own reports and monitoring.

5 Id. ¶¶ 109-116.

12

And, as with any enforcement action, EPA and

California bear the burden of establishing that the

City’s discharges do indeed cause or contribute to

violations of Water Quality Standards. 33 U.S.C. §

1319(d). The facts of this case thus provide no support

for the City’s and amici’s arguments that the

challenged permit conditions lead to unjust and

heavy-handed enforcement.

As in this case, a permittee’s violations of

Water Quality Standards do not occur in a vacuum.

They almost always accompany significant violations

of other permit conditions and are supported by

monitoring data—frequently the permittee’s own

data—showing that the permittee’s discharges are

actually causing pollution in excess of permit

requirements and easily identifiable water quality

benchmarks. Thus, at bottom, dischargers like the

City face enforcement because of the pollution they

cause and not, as the City suggests, Pet’r Br. 24,

because the waters they discharge into are already

polluted.

13

III. THE CLEAN WATER ACT AUTHORIZES

NARRATIVE PERMIT LIMITATIONS

PROHIBITING DISCHARGES FROM

VIOLATING WATER QUALITY

STANDARDS

A. Compliance With State-Defined Water

Quality Standards Is a Bedrock Principle

of the Clean Water Act and NPDES

Permits

The Clean Water Act is built on a foundation of

cooperative federalism: states and the federal

government share responsibility for addressing water

quality impacts, but within a framework that also

preserves states’ traditional roles in protecting the

waters within their respective borders. 33 U.S.C.

§ 1251(b); see also Arkansas v. Oklahoma, 503 U.S. 91,

101 (1992) (the Clean Water Act “anticipates a

partnership between the States and the Federal

Government, animated by a shared objective”).

Indeed, the Clean Water Act begins by declaring that

“[i]t is the policy of the Congress to recognize,

preserve, and protect the primary responsibilities and

rights of States to prevent, reduce, and eliminate

pollution, [and] to plan the development and use

(including

restoration,

preservation,

and

enhancement) of land and water resources . . . .”

33 U.S.C. § 1251(b).

Within this cooperative framework, the Clean

Water Act employs a two-pronged approach to water

quality regulation. First, states retain authority to

develop Water Quality Standards for their waters

above federally established baseline requirements.

Indeed, it was “Congress’ intent to cast the states in

14

the featured role” in promulgating those standards.

American Paper Inst. v. EPA, 996 F.2d 346, 349

(D.C. Cir. 1993). States tailor Water Quality

Standards to each category of their water bodies

covered by the Act, and the standards are comprised

of three fundamental elements: (1) the designated

uses for the water body (e.g., recreation, water supply,

habitat); (2) criteria to protect those uses; and

(3) “antidegradation” provisions that both prohibit

backsliding on existing uses and protect waters of

exceptional value. 33 U.S.C. § 1313; 40 C.F.R.

§§ 130.2(d), 131.6. While EPA may disapprove of

Water Quality Standards that do not meet minimum

federal requirements, Congress expressly authorized

states to develop Water Quality Standards more

stringent than federal standards. 33 U.S.C. § 1370.

Second, and critical here, Congress prohibited

the discharge of any pollutant by any person except in

compliance with permits issued by EPA or authorized

states under the NPDES. 33 U.S.C. § 1311. And

Congress required that NPDES permits must include

various types of effluent limitations as well as “any

more stringent limitation necessary to meet water

quality standards”—in other words, NPDES permits

must ensure compliance with state Water Quality

Standards. See, e.g., 33 U.S.C. § 1311(b)(1)(C); 40

C.F.R. § 122.44(d) (requiring all NPDES permits to

include “any requirements in addition to or more

stringent than promulgated effluent limitations

guidelines or standards . . . necessary to . . . [a]chieve

water quality standards . . . including State narrative

criteria for water quality”); see also Arkansas, 503

U.S. at 105 (noting that, “[s]ince 1973, EPA

regulations have provided that an NPDES permit

15

shall not be issued when the imposition of conditions

cannot ensure compliance with the applicable water

quality requirements of all affected states” (cleaned

up)).

B. The Clean Water Act Authorizes the

Receiving Water Condition Challenged in

This Case

The Clean Water Act fully authorizes narrative

conditions that generally prohibit discharges that will

cause or contribute to a violation of Water Quality

Standards.

First, the Act’s text expressly allows such

conditions. Congress deliberately chose in section

1311(b)(1)(C) to use the broader phrase “any more

stringent limitation” when authorizing EPA and

states to require the achievement of those conditions

“necessary to meet water quality standards,” rather

than the narrower term “effluent limitations,”6 which

is also required to be included by sections

1311(b)(1)(A) and (B).7 See 33 U.S.C. § 1311(b)(1)(A)(C); see also Sosa v. Alvarez-Machain, 542 U.S. 692,

711 n.9 (2004) (courts presume Congress intended

different terms to mean different things). And a

limitation necessary to ensure that a permittee’s

discharges do not violate Water Quality Standards

“Effluent limitation” is defined as a state- or EPAestablished restriction “on quantities, rates, and concentrations

of chemical, physical, biological, and other constituents.”

33 U.S.C. § 1362(11).

6

7 This is especially true when it comes to a statute

attempting to tackle a problem described by its chief sponsor as

“a cancer which threatens our very existence.” 118 Cong. Rec.

16,882 (1972).

16

surely must include conditions prohibiting discharges

that violate those very standards. See 33 U.S.C. §

1311(b)(1)(C).

Next, the City misreads section 1311(a) of the

Act as indicating an intent to exclude narrative

permit prohibitions needed to ensure compliance with

state Water Quality Standards. Pet’r Br. 34-35.

Section 1311(a) does nothing of the sort and, in fact,

supports the inclusion of such conditions. As noted,

section 1311(a) makes it unlawful to discharge a

pollutant without complying with the limitations set

out in section 1311 and other enumerated sections of

the Act. See 33 U.S.C. § 1311(a) (referencing

compliance with, in addition to section 1311, sections

1312, 1316, 1317, 1342, and 1344). But section 1311(a)

also includes a mandate that discharges comply with

Water Quality Standards, as this Court has

previously confirmed. See PUD No. 1, 511 U.S. at 713

(citing the plain language of 33 U.S.C. § 1311(b)(1)(C)

and clear statements of legislative history that

“‘[s]ection [1313] is always included by reference

where section [1311] is listed’” (citation omitted)). As

a result, section 1311(a) is properly read as

prohibiting any discharges except in compliance with,

among other things, state Water Quality Standards

established under section 1313. See PUD No. 1, 511

U.S. at 713; 33 U.S.C. § 1311(a). Permit conditions

that expressly prohibit point source discharges that

would violate Water Quality Standards are, thus,

squarely within the authority contemplated by

Congress.

These limitations need not be strict effluent

limitations. As EPA points out, Resp. Br. 19-21, this

Court

previously

confirmed

that

section

17

1311(b)(1)(C)’s reference to “other limitation”

encompasses limitations that are “related to the

discharge of pollutants” but not falling “within the

precise statutory definition of ‘effluent limitation.’”

Nat’l Assn’ of Mfrs., 583 U.S. at 122. The Court then

cited section 1311(b)(1)(C) as a “concrete example[]” of

such a limitation, and described precisely the basis on

which EPA and California applied the limitation

challenged here: i.e., such limitations are sometimes

necessary

when

“technology-based

effluent

limitations cannot meet water quality standards,

treatment standards, or schedules of compliance.” Id.

at 122-23 (cleaned up).

Nor does the Court’s decision in PUD No. 1

stand for the proposition that permit conditions must

always be via strict effluent limits. For one, PUD

No. 1 involved Water Quality Standards themselves,

as applied through state water quality certifications

under section 1341 of the Act, not NPDES permit

conditions. See PUD No. 1, 511 U.S. at 714-16. But in

construing the appropriate scope of those standards,

the Court recognized that, as it would again years

later in National Association of Manufacturers, that

“state water quality standards provide a

‘supplementary basis . . . so that numerous point

sources, despite compliance with effluent limitations,

may be further regulated to prevent water quality

from falling below acceptable levels.’”8 Id. at 704

8 The Court did not have occasion to opine on the level of

specificity required because the specificity of Washington’s flow

limitation was not at issue in the case. The Court, however, went

on to agree that, while meeting specific criteria in Water Quality

Standards “generally” ensures that such standards will be met,

“in some circumstances, [specific] criteria alone are insufficient.”

18

(emphasis added) (quoting EPA v. California, 426 U.S.

200, 205 n.12 (1976)). These decisions support permit

conditions, like those at issue here, that kick in when

a permittee’s discharges are failing to do the very

thing an NPDES permit is trying to accomplish:

ensure compliance with Water Quality Standards.

Finally, even if the Clean Water Act did not

already expressly authorize general narrative

prohibitions against violating Water Quality

Standards, Congress expressly authorized such

conditions in the specific context of CSO permits when

it codified EPA’s CSO Control Policy. See 33 U.S.C.

§ 1342(q)(1) (requiring CSO permits to “conform to the

Combined Sewer Overflow Control Policy signed by

the [EPA] Administrator on April 11, 1994”). EPA’s

CSO Control Policy specifies that Phase I NPDES

permits such as the City’s must include a provision

requiring municipalities to “[c]omply with applicable

WQS . . . expressed in the form of a narrative

limitation.” 59 Fed. Reg. at 18,696 (emphasis added).

Thus, Congress separately authorized such conditions

when it came to CSOs when it gave the CSO Control

Policy the force of law. See 33 U.S.C. § 1342(q)(1).

Codification of the CSO Policy is also telling of how

PUD No. 1, 511 U.S. at 715 (citing 40 C.F.R. § 131.3(b)). Because

of this, the Court noted that “criteria are often expressed in

broad, narrative terms, such as ‘there shall be no discharge of

toxic pollutants in toxic amounts.’” Id. at 715-16 (cleaned up).

And the Court went on to reject a challenge to applying such

criteria because the Clean Water Act “permits enforcement of

broad, narrative criteria.” Id. at 716. As discussed below, supra

pp. 22-28, sometimes the most effective and flexible means of

enforcing Water Quality Standards is via conditions requiring

that discharges meet those standards.

19

Congress views the need for narrative limitations

requiring compliance with Water Quality Standards

outside of the CSO context. See Commodity Futures

Trading Comm’n v. Schor, 478 U.S. 833, 846 (1986)

(finding that “[w]here . . . ‘Congress has not just kept

its silence by refusing to overturn the administrative

construction, but has ratified it with positive

legislation,’” the Court “cannot but deem that

construction virtually conclusive” ).

Amici States do not contend that a permitting

authority could simply include generic conditions and

nothing else to avoid doing the often complex, but

necessary, task of crafting conditions to ensure

compliance. Nor have EPA and California done so

here. But there are cases where such conditions,

working in tandem with specific limitations, are

appropriate and necessary to strike the proper

balance between protecting water quality and

preserving permittee flexibility. The EPA and

California conditions at issue here are well within the

authority Congress bestowed in the Clean Water Act.

C. The Challenged Conditions in the City’s

Permit Are Not Vague and Provide Ample

Metrics for Compliance

The prohibitions against violating water

quality standards in the City’s permit are also

sufficiently clear and provide the City with everything

it needed to ensure compliance with the permit’s

conditions.

As the Ninth Circuit noted below, the City’s

permit specifies, among other things, the percentage

of combined wastewater that the City must capture

during wet weather, the flow rates that the City must

20

meet before CSO discharges, and the likelihood of rain

triggering the need to maximize secondary treatment

capabilities. App. 36; see also App. 117-24. The City’s

permit also sets out detailed operation and

maintenance requirements for critical infrastructure

the City needs to ensure the treatment system

functions properly, App. 112-17, and contains a cap on

CSO events, limiting the City to an average of eight

CSOs per year. J.A. 17; App. 97. The City also had

ample notice of the state Water Quality Standards

that applied to its stormwater operations. Those

standards, which included requirements to protect the

Pacific Ocean and San Francisco Bay, were

documented in both in the Fact Sheet for the City’s

permit and detailed in response to the City’s

comments on its proposed permit. See, e.g., App. 516.

Those standards, in turn, provide detailed, specific

limitations with which the City’s discharges must

comply. See, e.g., J.A. 22-226 (i.e., the Water Quality

Control Plan for Ocean Waters of California, setting

out detailed limits and levels of water quality

characteristics).

These conditions, and the specific standards

that expressly govern the City’s discharges, provide

more than enough detail for the City to know when

violations may be occurring. Contra Pet’r Br. 47

(claiming that the challenged narrative standards are

vague and leave the City to guess whether it has

violated the permit). And when the City, as EPA and

California have documented, fails to adequately

maintain infrastructure, fails to run its systems at full

treatment capacities, fails to meet flow rate

requirements, fails to close out work orders on pipe

repairs, and otherwise fails to take the actions

21

required to limit CSO events, it should be on notice

that violations of Water Quality Standards may well

be occurring.

Moreover, awareness of a receiving water

limitation violation does not depend on whether the

discharger understands that those receiving waters

are, or are not, in current compliance with Water

Quality Standards. For example, applicable and easily

identifiable standards prohibit the City from

discharging floating debris like human waste and

toilet paper. J.A. 46-50; see also Pet’r Br. 11 (conceding

that such narrative limits are lawful). If, after the City

exceeds its averaged allotments of CSO events for the

year, the City discharges floating debris to the Pacific

Ocean, it has violated the receiving water limitation

in its permit regardless of whether such debris is

already present in the receiving waters (i.e.,

independent of whether Water Quality Standards are

already met). And the City benefits from the flexibility

provided by these narrative conditions, like the ability

for the City to perpetuate up to eight CSO events per

year (on an averaged basis) or other provisions like

“mixing zones.” Those types of conditions allow a

permittee to discharge even when the receiving

waters do not meet Water Quality Standards at the

point of discharge due to other actors, background

conditions, or even the permittee’s own discharges.

See App. 97; J.A. 17.

Permit conditions that prohibit permittees

from causing or contributing to an exceedance of

Water Quality Standards focus solely on a permittee’s

discharges and work to curb those discharges before

the permittee discharges wastewater that causes or

contributes to an exceedance of a Water Quality

22

Standard—exactly the framework envisioned by the

Clean Water Act.9 It does not, as the City suggests,

Pet’r Br. 24-34, work backward from a Water Quality

Standard violation to polluting parties that are

otherwise in compliance with permit conditions.

IV.

NARRATIVE CONDITIONS

GENERALLY REQUIRING

COMPLIANCE WITH WATER

QUALITY STANDARDS ARE

CRITICALLY IMPORTANT TO

BALANCING THE MANDATE OF

ADDRESSING WATER POLLUTION

WITH NECESSARY FLEXIBILITY FOR

PERMITTEES

A. Water Quality Problems Can Occur

Despite Compliance with Numeric

Effluent Limitations

NPDES permits must establish effluent

limitations, which restrict “quantities, rates, and

concentrations

of . . . constituents . . . discharged

from point sources.” 33 U.S.C. § 1362(11). As

discussed above, supra p. 8, however, and as

recognized in the Act, 33 U.S.C. § 1311(b)(1)(C),

numerical effluent limitations are not always

9 As discussed in Section IV below, violations of receiving

waters limitations frequently involve regulators notifying

dischargers of problems with their discharges and the triggering

of adaptive management conditions with, often, lengthy

compliance schedules. Especially in the CSO and municipal

stormwater context, those processes serve to shield permittees

from citizen suits as they work with regulators to fix those issues

leading their discharges to cause or contribute to Water Quality

Standard exceedances.

23

sufficient to protect water quality. The City indeed

concedes the point. See Pet’r Br. 11 (agreeing that

“effluent limitations may be stated . . . narratively”).

That is because it is often difficult, or even impossible,

to determine all potential pollutant discharges at the

time the permit is issued—take CSOs, for example,

which collect sewage from unknown sources far and

wide. And it takes significant time—and great cost to

permittees—to modify a permit that does not

adequately protect water quality.10 As a result,

requiring permittees to ensure that their discharges

do not violate Water Quality Standards provides a

critical backstop to ensure that water quality goals

are achieved. Removing that authority would “create[]

[a] loophole[]” that would “undermine the statute’s

basic federal regulatory objectives.” County of Maui v.

Hawaii Wildlife Fund, 590 U.S. 165, 185 (2020).

For example, if a permittee’s wastewater

contains low levels of chloride, it likely will not have a

numeric effluent limit, or even a monitoring

requirement, for chloride. But if the permittee

suddenly discharges high concentrations of chloride

due to an upset or other unforeseen circumstance, it

would be toxic to aquatic species in violation of Water

Quality Standards for toxicity even though it would

not violate any specific effluent limits in the permit.

While the regulator could, after the fact, seek to

modify the permit to address chloride, see 40 C.F.R.

10 As EPA has observed, this also helps permitting

authorities avoid the practical pitfalls associated with trying to

capture with specificity every conceivable circumstance of

dynamic and complex waste discharges within a permit. In re

Ketchikan Pulp Co., 7 E.A.D. 605.

24

§ 122.62, such modifications take significant time to

develop and regulators would be hard pressed to curb

those discharges until after the modification became

effective—at great and often irreparable detriment to

receiving waters. A narrative standard that, for

example, prohibits discharges that violate Water

Quality Standards for toxicity allows regulators and

permittees to take immediate action.

This

scenario

is

not

hypothetical.

Massachusetts recently reached a settlement with a

mineral mining facility for alleged discharges that

turned over ten miles of the Hoosic River an opaque

white from bank to bank and damaged protected

riverine habitat. Compl., Commonwealth of

Massachusetts v. Specialty Minerals Inc., No. 1:24-cv11181 (D. Mass., May 3, 2024).11 Despite over sixty

days of alleged instances of white cloudy discharges

violating Massachusetts Water Quality Standards,

the facility operator’s required monitoring identified

only one day when the facility’s discharge exceeded a

numeric effluent limitation. Id. at 18. According to the

complaint, water samples taken by the Massachusetts

Department of Environmental Protection from

upstream of, at, and downstream of the facility’s

outfall on one day of white discharge revealed

increases of multiple pollutants. Id. at 19. Absent

permit

conditions

prohibiting

violations

of

Massachusetts’s state Water Quality Standards, the

permittee may have faced little consequence despite

several months of allegedly polluting a river enjoyed

11 https://tinyurl.com/thxpvn4w.

25

and used by the residents of Massachusetts for

fishing, navigating, and recreating. Id. at 21-30.

As another example, Washington State

established Clean Water Act violations against a gold

mine polluting the Buckhorn Mountain watershed in

northeast Washington. The violations were based, in

part, on a narrative condition establishing a “capture

zone,” prohibiting any contamination above otherwise

pristine background levels from leaving a certain

perimeter from the mine and, thus, violating the

antidegradation and other provisions in Washington’s

Water Quality Standards. Okanogan Highlands All.

v. Crown Res. Corp., 492 F. Supp. 3d. 1149, 1156-57

(W.D. Wash. 2020). Due to the dynamic nature of

mining discharges, combined with the complex

hydraulic environment presented by an underground

mine situated at the top of a mountain, not all of the

mine’s discharge points were known, much less

monitored. As a result, Washington would not have

been able to enforce full compliance with its Water

Quality Standards without crafting a narrative

permit condition ensuring that the downstream

watershed as a whole was not degraded by mining

operations.

Given these examples, it is unsurprising that

courts, too, have embraced the importance and

legality of receiving water limitations in permits to

protect water quality. See Ohio Valley Env’tl Coal. v.

Fola Coal Co., 845 F.3d 133, 142 (4th Cir. 2017)

(upholding the enforceability of a permit prohibiting

violations of narrative water quality standards, and

noting that “despite the Clean Water Act’s shift in

focus of environmental regulation towards the

discharge of pollutants, water quality standards still

26

have an important role in the Clean Water Act’s

regulatory scheme” (cleaned up)); see also PUD No. 1,

511 U.S. at 701 (concluding that Washington may

impose narrative restrictions under section 1341 of

the Clean Water Act and noting that specific numeric

criteria such as turbidity “cannot reasonably be

expected to anticipate all the water quality issues

arising from every activity that can affect the State’s

hundreds of individual water bodies.”). In short,

specific, numeric limitations cannot necessarily

account for all possible pollutant discharges under a

permit, and restrictions against violating Water

Quality Standards, as Congress endorsed, supra

pp. 14-18, can address the problem Congress sought

to tackle in the Clean Water Act.

B. General Narrative Prohibitions Are

Frequently Used as a Flexible Alternative

to Strict Numerical Limits

As discussed above, NPDES permits must

contain adequate conditions to ensure that Water

Quality Standards are met. Supra pp. 12-14. Permits

that fail to do so can be—and often are—struck down

by challenges from citizens and environmental

groups. As EPA has observed, however, there are

practical pitfalls associated with trying to capture

with specificity every conceivable circumstance of

dynamic and complex waste discharges within a

permit. In re Ketchikan Pulp Co., 7 E.A.D. at 605, 618.

Indeed, as EPA has concluded, “includ[ing] in the

permit a list of every pollutant or combination of

pollutants that conceivably might be contained in the

applicant’s wastestreams, and to determine which of

those pollutants the [permitting authority] considered

appropriate

for

discharge . . . would

be

27

an . . . impractical [approach].” Id. Yet this is

precisely the costly and impractical path the City asks

this Court to embark upon. This Court should reject

the City’s request that this Court endorse such a

counterintuitive approach.

Indeed, general narrative conditions are used

to address situations where a more specific

prohibition would deprive the permittee of needed

flexibility with no corresponding environmental

benefit. For example, some states include

temperature limitations for facilities that discharge

into salmonid habitat. In such cases, permitting

authorities can include conditions that include a

prohibition against raising the in-stream water

temperature above a certain threshold and require

temperature monitoring upstream and downstream of

the facility. This arrangement allows the permittee to

discharge greater amounts of warmer effluent when

the stream is colder or flowing at a higher volume and

encourages more caution when the water is warmer.

Forbidding

the

permitting

authority

from

conditioning compliance on the receiving water

conditions would force the permitting authority to

include much stricter conditions accounting for worst

case scenarios in terms of temperature and flow rate

to ensure that the permit never authorizes violations

of water quality standards. Paradoxically, a win for

Petitioners here could result in a net increase in the

stringency of NPDES permits more broadly.

In other contexts, receiving water limitations

often trigger adaptative management in a variety of

permits, both at the federal and state level. Such tools

typically involve implementing “additional or

alternative practices . . . if existing programs are not

28

meeting target reductions,” Md. Dep’t of Env’t v.

Anacostia Riverkeeper, 134 A.3d 892, 916 (Md. Ct.

App. 2016). At that point, the “primary emphasis is to

shift from rule-based approaches of management

towards strategies that emphasize continuous

monitoring of circumstances and adjusting decisions

accordingly.” Melissa K. Scanlan & Stephanie Tai,

Marginalized Monitoring: Adaptively Managing

Urban Stormwater, 31 UCLA J. Envtl. L. & Pol’y 1,

60-61 (2013). In this way, permittees and regulators

engage in a dialogue meant to identify problems and

chart achievable solutions.

For example, in Washington, when there is a

discharge attributable to a Municipal Stormwater

permittee that causes or contributes to a violation of

Water Quality Standards, the permitting agency is

required to notify the permittee of the need for an

adaptive management response to identify and

address the discharge. 2024 Wash. Phase I Municipal

Stormwater Permit §§ S4.F(1) and (2), and p. 84.12

Washington’s standard permit condition then calls on

the permittee to review its current stormwater Best

Management Practices, work with the state to

consider additional measures necessary to address the

issue, implement those measures, and report back to

Washington on the status of implementation and its

effectiveness. Id. § (3); see also Puget Soundkeeper All.

v. Wash. Dep’t of Ecology, 2023 WL 5713819, at *3

(Wash. Ct. App. 2023) (describing permitting agency’s

adaptive management process response as “typically

involv[ing] imposing new, stricter best practices

requirements” or “no additional action if it determines

12 https://tinyurl.com/2wkj5ut5.

29

that the violation is already being addressed”). This

process can shield permittees who have violative

discharges, but are engaging in adaptive

management, against enforcement or citizen suits.

And Washington has successfully defended these

permit

conditions

against

challenges

from

environmental groups asserting that more specific—

and thus more restrictive—conditions are required.

See, e.g., id.; Puget Soundkeeper All. v. Wash. Dep’t of

Ecology, 9 P.3d 892 (Wash. Ct. App. 2000).

While some states, including Washington, have

state laws that authorize general prohibitions against

violating Water Quality Standards, see, e.g., Wash.

Rev. Code § 90.48.520 (2024), a ruling here calling

such conditions into question will result in more

onerous permit conditions, less flexibility in NPDES

permitting, and worsened water quality.

30

CONCLUSION

This Court should affirm the Ninth Circuit’s

judgment.

RESPECTFULLY SUBMITTED.

ANDREA JOY CAMPBELL

Attorney General of

Massachusetts

HELEN YURCHENCO

EMILY MITCHELL FIELD

Assistant Attorneys

General

ROBERT W. FERGUSON

Attorney General of

Washington

KELLY T. WOOD

Senior Counsel

PETER B. GONICK

Deputy Solicitor

General

Counsel of Record

1125 Washington St. SE

One Ashburton Pl.

Olympia, WA 98504

Boston, MA 02108

360-753-6200

617-727-2200

helen.yuchenco@mass.gov kelly.wood@atg.wa.gov

peter.gonick@atg.wa.gov

emily.field@mass.gov

September 3, 2024

(Additional Counsel Listed on Following Page)

31

WILLIAM TONG

Attorney General

State of Connecticut

KWAME RAOUL

Attorney General

State of Illinois

AARON FREY

Attorney General

State of Maine

ANTHONY G. BROWN

Attorney General

State of Maryland

DANA NESSEL

Attorney General

People of the State of

Michigan

KEITH ELLISON

Attorney General

State of Minnesota

MATTHEW PLATKIN

Attorney General

State of New Jersey

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Attorney General

State of Oregon

MICHELLE A. HENRY

Attorney General

Commonwealth of

Pennsylvania

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Attorney General

State of Wisconsin

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Attorney General

District of Columbia