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

No. 23-753

In the

Supreme Court of the United States

CITY AND COUNTY OF SAN FRANCISCO,

CALIFORNIA,

Petitioner,

v.

ENVIRONMENTAL PROTECTION AGENCY,

Respondent.

On Writ of Certiorari to the United States

Court of A ppeals for the Ninth Circuit

BRIEF OF AMICI CURIAE SMALL BUSINESS

OWNERS AND OPERATORS IN SUPPORT

OF RESPONDENT

Keith P. Richard

Counsel of Record

Richard L. Qualey

A rchipelago

One Dana Street, 4th Floor

Portland, Maine 04101

(207) 558-0102

krichard@archipelagona.com

Counsel for Amici Curiae

332447

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

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

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 1

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

I.

S M A L L BU S I N E S S E S DE P EN D

ON CL E A N WAT ER , W H ICH I S

SA FEGUA RDED BY NA RR ATI V E

WA T ER QUA L I T Y S TA N DA R D S

I NC OR P OR A T E D I N T O C L E A N

WATER ACT PERMITS . . . . . . . . . . . . . . . . . . . 3

A. Narrative Permit Provisions that Protect

Water Quality Benefit Commercial

Fish and Shellfish Harvesters. . . . . . . . . . . 5

B. Narrative Permit Provisions that

Protect Water Quality Benefit Tourism

Businesses . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

II. THE CLEAN WATER ACT AUTHORIZES

PERMITTING AGENCIES TO INCLUDE

NA R R A T I V E WA T ER QUA L I T Y

STANDARDS IN NPDES PERMITS . . . . . . . 13

ii

Table of Contents

Page

A. Cong ress Recog nized the Clean

Water’s Act’s Objective of Water

Quality Improvement as Important

for Small Businesses . . . . . . . . . . . . . . . . . . 13

B. The Challenged Narrative Provisions are

Necessary to Achieve Compliance with

the Clean Water Act because Numeric

and Specific Narrative Provisions do

not Address All Pollutants or Changing

Water Quality Conditions. . . . . . . . . . . . . . 15

III. LIMITING AGENCIES’ ABILITY TO

INCLUDE NARRATIVE PROHIBITIONS

IN NPDES PERMITS WOULD HARM

CLEAN WATER-DEPENDENT LOCAL

BUSINESSES. . . . . . . . . . . . . . . . . . . . . . . . . . . 19

A. NPDES Per mits w ith Nar rative

Provisions Protect Local Economic

Interests by Serving as a Backstop

When Numeric Limitations Alone

Do Not Suffice to Protect Water

Quality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

B. NPDES Per mits w ith Nar rative

Provisions Protect Local Economic

Interests by Providing Protection

from Pollutants that Lack Numeric

Limits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

Table of Contents

Page

C. NPDES Per mits w ith Nar rative

Provisions Protect Local Economic

Interests by Serving as a Backstop

to Address Changing Conditions

in Waterbodies, Especially Where

Per mits Have Been Indef initely

Administratively Continued . . . . . . . . . . . . 26

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

iv

TABLE OF CITED AUTHORITIES

Page

CASES:

City of Milwaukee v. Illinois & Michigan,

451 U.S. 304 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Env’t Prot. Agency v. California ex rel. State

Water Res. Control Bd.,

426 U.S. 200 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Nat. Res. Def. Council v. EPA.,

915 F.2d 1314 (9th Cir. 1990) . . . . . . . . . . . . . . . . . . . 27

National Association of Manufacturers v.

Department of Defense,

583 U.S. 109 (2018) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Ohio Valley Env’t Coal., Inc. v. Marfork Coal Co.,

966 F. Supp. 2d 667 (S.D.W. Va. 2013) . . . . . . . . . . . . 16

Piney Run Pres. Ass’n v.

Cnty. Comm’rs of Carroll Cnty., MD,

268 F.3d 255 (4th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 14

PUD No. 1 of Jefferson Cnty. v.

Washington Dep’t of Ecology,

511 U.S. 700 (1994) . . . . . . . . . . . . . . . . . . . . . . . . 16, 20

San Francisco v. EPA,

75 F.4th 1074 (9th Cir. 2023) . . . . . . . . . . . . . . 3, 15, 19

v

Cited Authorities

Page

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

No. 3:24-cv-02594 (N.D. Cal. May 1, 2024) . . . . 20, 21

Upper Blackstone Water Pollution Abatement

Dist. v. U.S. E.P.A.,

690 F.3d 9 (1st Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . 17

STATUTES AND OTHER AUTHORITIES:

33 U.S.C. § 1251(a) . . . . . . . . . . . . . . . . . . . . . . . . 13, 21, 29

33 U.S.C. § 1251(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13

33 U.S.C. § 1251(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

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

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

33 U.S.C. § 1311(b)(1)(C) . . . . . . . . . . . . . . 2, 15, 16, 18, 24

33 U.S.C. § 1342(a)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

33 U.S.C. § 1342(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 27

33 U.S.C. § 1362(17) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

40 C.F.R. § 122.4(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 15

vi

Cited Authorities

Page

87 Fed. Reg. 36848 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 29

87 Fed. Reg. 36849 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 29

117 Cong. Rec. 38864 (1971) . . . . . . . . . . . . . . . . . . . . 2, 14

123 Cong. Rec. 38978 (1977) . . . . . . . . . . . . . . . . . . . . . . . 2

314 Mass. Code Regs. § 4.05(4)(a) . . . . . . . . . . . . . . . . . . 18

314 Mass. Code Regs. § 4.05(4)(b) . . . . . . . . . . . . . . . . . 18

314 Mass. Code Regs. § 4.05(5)(e) . . . . . . . . . . . . . . . 17, 25

1972 Clean Water Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1972 Clean Water Act § 301(b)(1)(C) . . . . . . . . . 15, 16, 17

A Bit About Us, Seven Rivers Paddling, https://

w w w.seven r iverspaddling.com /about -us

(last visited Aug. 26, 2024) . . . . . . . . . . . . . . . . . . . . . 12

Agency for Toxic Substances and Disease

Reg istr y, ATSDR CA SE STUDIES IN

EN V IRON M EN TA L M EDICINE

P OLYC H L OR I NA T E D BI P H EN Y L S

(PCBS) TOXICITY, U.S. Department of

Health and Human Services (2014), https://

www.atsdr.cdc.gov/csem/pcb/docs/pcb.pdf. . . . . . . . 29

vii

Cited Authorities

Page

Alabama Dep’t Env’t Mgmt., Final Permit for

MetalPlate Galvanizing 7th Ave, NPDES

Permit No. AL0080403 . . . . . . . . . . . . . . . . . . . . . . . . 4

Nadia Barbo et al., Locally caught freshwater

fish across the United States are likely a

significant source of exposure to PFOS and other

perfluorinated compounds, 220 ENV’T RSCH. 1

(2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Board Members, L ob s t er F ou n da t ion of

Massachusetts, https://lobsterfoundationofma.

org/board-members/ . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Combined Sewer Overflows: Guidance for Permit

Writers, EPA Office of Water (Sept. 1995) . . . . . 10

Karl S. Coplan, Of Zombie Permits and Greenwash

Renewal Strategies: Ten Years of New York’s

So-Called “Environmental Benefit Permitting

Strategy”, 22 Pace Env’t L. Rev. 1 (2005) . . . . . . . . 27

Dean Blanchard Seafood, Inc., Wild A merican

Shrimp, https://americanshrimp.com/suppliers/

dean-blanchard-seafood/ . . . . . . . . . . . . . . . . . . . . . . . 8

Detailed Facility Report: Durham Wastewater

Treatm ent Fa c ility, En forcement a nd

Compliance History Online, https://echo.epa.gov/

detailed-facility-report?fid=110006619212 . . . . . . . . 28

viii

Cited Authorities

Page

De t ai l e d Fa c i li ty Re p o r t: So m e r s w o r th

Wastewater Treatment Plant, Enforcement and

Compliance History Online, https://echo.epa.gov/

detailed-facility-report?fid=110020142987 . . . . . . . . 28

Tara Duggan, There Will Be No Commercial

Herring Catch in SF Bay This Year, S an

F r a nc i s c o C h r o n ic l e (Ja n. 19, 2 019),

https://w w w.sfchronicle.com/food/article/

Commercial-herring-catch-in-SF-Bay-canceledthis-13545808.php. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Env ’t P rot. A gency, Response to C omments ,

NPDES Permit No. NH0100234, Peirce Island

Wastewater Treatment Facility, Portsmouth,

New Hampshire (2023) . . . . . . . . . . . . . . . . . . . . . . . . 10

Ho m e, S h o a l ’ s F ly F i s h i n g a n d L i g h t

Tackle, https://shoalsflyfishing.com/ . . . . . . . . . . . . 11

Howarth et al., Aquaculture and Eelgrass Zostera

marina Interactions in Temperate Ecosystems, 14

Aquaculture Env’t Interactions 15 (2022) . . . . . . 23

La. A dmin. Code. 33 IX § 1111(A) . . . . . . . . . . . . . . . . . . 18

La. A dmin. Code. 33 IX § 1113(B)(1)(d) . . . . . . . . . . . . . 17

ix

Cited Authorities

Page

James S. Latimer & Steven A. Rego, Empirical

Relationship Between Eelgrass Extent and

Predicted Watershed-Der ived Nitrogen

L o a d i n g f o r S h a l l o w Ne w E n g l a n d

Estuar ies, 9 0 E s t ua ri n e , C oa s ta l a n d

Shelf Science 4 (2010) . . . . . . . . . . . . . . . . . . . . . . . . 23

Lou isia na Depa r tment of Env i ronment a l

Quality, Gen-LAG33-Coastal - LAG33A319—

J C Dupont (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Lou isia na Depa r tment of Env i ronment a l

Quality, Gen-LAG33-Coastal - LAG33A320—

J C Dupont (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Maine Dep’t Env’t Prot., General Permit –

Net Pen Aquaculture, Maine Pollutant

Discharge Elimination System Permit No.

MEG130000, Maine Waste Discharge License

#W009020-6H-D-R (2014) . . . . . . . . . . . . . . . . . . . . . . 4

N.H. Code A dmin Env-Wq § 1702.17(b) . . . . . . . . . . . . . 19

N.H. Code A dmin Env-Wq § 1702.17(c) . . . . . . . . . . . . . 19

N.H. Code A dmin Env-Wq § 1703.21 . . . . . . . . . . . . . . . 18

Nat’l Marine Fisheries Serv., U.S. Dep’t of Com.,

Fisheries Economics of the United States

2022 NMFS-F/SPO-248A (2024) . . . . . . . . . . . . . . . . 1

x

Cited Authorities

Page

NPDES Permit Writer’s Manual (Sept. 2010) . . . . . . 10

Ocean Today, Dead Zone in the Gulf of Mexico, NOAA,

https://oceantoday.noaa.gov/deadzonegulf/ . . . . . . . 26

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

for the United States as Amicus Curiae,

2016 WL6524150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Nancy N. Rabalais, R. Eugene Turner & William

J. Wiseman, Jr., Gulf of Mexico Hypoxia,

A.A. “ The Dead Zone,” 33 A nnua l R ev.

Ecology & Systematics 235, 244 (2002) . . . . . . . . . . .9

S. Rep. No. 92-414 (1971), 2 Leg. Hist. 1511 . . . . . . . . . 14

San Francisco Bay Regional Water Quality Control

Board, Water Quality Control Plan for the

San Francisco Bay Basin § 3.3.18 . . . . . . . . . . . . . . 17

John D. Sutter, Minnesota Farmer Battles Gulf

‘Dead Zone,’ CNN (Aug. 30, 2010), https://

www.cnn.com/2010/TECH/innovation/08/30/

gulf.dead.zone.minnesota.farm/index.html . . . . . . . . 9

Endre Szalay, Breathing Life into the Dead

Zone: Can the Federal Common Law of

Nuisance Be Used to Control Nonpoint Source

Water Pollution, 85 Tul. L. Rev. 215 (2010) . . . . . . . 9

xi

Cited Authorities

Page

Ky l e A . T h o m p s o n e t a l . , P o l y - a n d

Per f luoroalkyl Substances in

Municipal Wastewater Treatment Plants

in the United States: Seasonal Patterns

and Meta-Analysis of Long-Term Trends

and Average Concentrations, 2 ACS ES&T

Water 690 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. EPA Authorization to Discharge Under

the NPDES Small Wastewater Treatment

Facility General Permit No. NHG580012—

Town of Epping (2022) . . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, Authorization to Discharge Under the

NPDES Small Wastewater Treatment Facility

General Permit No. NHG580013—Town of

Newmarket (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, Draft NPDES Permit No. MA0103284—

Massachusetts Water Resources Authority

(2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28, 29

U.S. EPA, NPDES Permit No. NH0100234—

City of Portsmouth (2023) . . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, NPDES Permit No. NH0100277—

City of Somersworth (2003) . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, NPDES Permit No. NH0100455—

Town of Durham (1999) . . . . . . . . . . . . . . . . . . . . . . . 22

xii

Cited Authorities

Page

U.S. EPA, NPDES Permit No. NH0100668—

City of Rochester (2023) . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, NPDES Permit No. NH0100871—

Town of Exeter (2022) . . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, NPDES Permit No. NH0101311—

City of Dover (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, NPDES Permit No. NH0109000—

City of Portsmouth (2022) . . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, NPDES Permit No. NHG581141—

Town of Newington (2022) . . . . . . . . . . . . . . . . . . . . . 22

U.S. EPA, NPDES Permit No. NHG58A000—

New Hampshire (2020) . . . . . . . . . . . . . . . . . . . . . . . . 21

Unfair, Me r r i a m -Web st e r, ht t p s: // w w w.

m e r r i a m - w e b s t e r. c o m /d i c t i o n a r y /

unfair#:~:text=1,%2C%20 partiality%2C%20

or%20deception%20%3A%20unjust . . . . . . . . . . . . . . 4

1

INTERESTS OF AMICI CURIAE

Amici cur iae are small business ow ners and

individuals whose livelihoods depend on having clean

water, protected from pollution.1 Amicus curiae include

a commercial fisherman, a commercial lobsterman,

a shrimp purchaser, oyster farm owners, and water

dependent tourism business owners. Narrative water

quality standards incorporated into National Pollutant

Discharge Elimination System (“NPDES”) permits

protect the livelihoods of amici by ensuring that polluting

facilities do not jeopardize ecosystems that are integral

to the survival of amici’s businesses.

SUMMARY OF ARGUMENT

Small businesses throughout the United States rely on

clean water and functioning ecosystems. Water quality that

complies with the Clean Water Act (“CWA” or “the Act”)

protects the livelihoods of business owners and employees in

water-dependent sectors of the Nation’s economy, including

commercial fishing, lobstering, shrimping, oyster farming,

and tourism. In 2022 alone, the U.S. commercial fisheries

and seafood industry generated roughly $54.0 billion in

sales, $20.2 billion in income impacts, and $28.6 billion in

value-added impacts, and it supported 832,000 full- and

part-time jobs (not including imports).2 That same year, the

1. No counsel for any party authored this brief in whole or in

part, and no person or entity has made any monetary contribution

to the preparation or submission of the brief other than amici

curiae, their members, or their counsel.

2. Nat’l Marine Fisheries Serv., U.S. Dep’t of Com., Fisheries

Economics of the United States 2022 NMFS-F/SPO-248A at 6

(2024).

2

U.S. recreational fishing industry generated roughly $138

billion in sales, $45.1 billion in income impacts, and $74.9

billion in value-added impacts, and it supported 691,613

jobs. 3 Water quality issues such as nutrient pollution,

bacteria pollution, and chemical pollution harm the daily

and long-term operations of businesses in those sectors.

Congress’s only named objective in the CWA focuses

on water quality. 33 U.S.C. § 1251(a). In enacting the

1972 Clean Water Act (“CWA”) and in passing the 1977

amendments to the Act, Congress recognized the profound

impact of the water-dependent industries on the Nation’s

economy, noting that good water quality supports the

Nation’s “vital industries,”4 and poor water quality causes

“severe economic hardship.”5 It is the objective of the

CWA to “restore and maintain the chemical, physical, and

biological integrity of the Nation’s waters.” Id. Narrative

permit provisions that incorporate water quality standards

are an essential part of the NPDES permitting system

and vital to achieving the statute’s purpose. In order to

achieve this lofty objective, the permits may contain “any

more stringent limitation, including those necessary to

meet water quality standards[.]” 33 U.S.C. § 1311(b)(1)(C).

Eliminating the narrative permit provisions would

remove an important backstop in permits that enable

state and federal agencies to protect the public in general,

but also smaller business owners from economic losses

resulting from a permittee’s violations of water quality

3. Id. at 11–12.

4. 117 Cong. Rec. 38864 (1971).

5. 123 Cong. Rec. 38978 (1977).

3

standards. Often, numeric permit limits do not alone

provide compliant water quality since those limits do not

address all the pollutants that harm water quality. In

baseball, the catcher may call the pitch, but they have no

control over what happens between the mound and the

plate. A rogue pitch, a foul tip, an errant catch—in order

to protect the observing public, there is a backstop behind

home plate. In the same way, numeric limits do not account

for changing conditions in the ecosystem—narrative

provisions do. Narrative provisions that incorporate

codified state water quality standards thus provide an

important tool, not only for permitting authorities to

ensure that permits comply with the text and the objective

of the CWA, but also for supporting small businesses

throughout the Nation.

ARGUMENT

I.

SMALL BUSINESSES DEPEND ON CLEAN

WAT ER , W H ICH IS S A FEGUA R DED BY

NARRATIVE WATER QUALITY STANDARDS

INCORPORATED INTO CLEAN WATER ACT

PERMITS.

Narrative provisions in National Pollutant Discharge

Elimination System (“NPDES”) permits safeguard

water quality and protect small businesses throughout

the United States. In San Francisco Bay, the waters

off the coast of Massachusetts, the Gulf of Mexico, the

Great Bay estuary in New Hampshire, and other coastal

locations throughout the United States, small businesses

and individuals benefit from the pollution prevention

“backstop” only available through the inclusion of narrative

NPDES permit provisions. See San Francisco v. EPA, 75

4

F.4th 1074, 1093 (9th Cir. 2023). Narrative provisions in

NPDES permits with numeric effluent limitations are an

essential means of ensuring that permitted facilities do

not degrade water quality and harm small businesses.

And narrative provisions in NPDES permits that lack

numeric effluent limits for pollutants of concern are the

only means of water quality protection.6

The petitioner incorrectly labels narrative provisions

that incorporate codified state water quality standards

as “unfair.” Pet. Br. 6. But there is nothing unjust,

impartial, or deceptive7 about requiring a facility to

comply with known state laws. Rather, unfairness arises

under the present circumstances when a permit—which

is required to “provide for compliance” with the Clean

Water Act (“CWA” or “the Act”), see 40 C.F.R. § 122.4

(a)—authorizes pollution that harms water quality and

the small businesses that depend on clean water. Without

narrative provisions, small businesses are left vulnerable,

completely at the whim of major polluters like the City

and County of San Francisco. When major polluters don’t

6. See Alabama Dep’t Env’t Mgmt., Final Permit for MetalPlate

Galvanizing 7th Ave, NPDES Permit No. AL0080403 (failing

to include numeric effluent limits for zinc in a zinc galvanizing

facility’s permit); Maine Dep’t Env’t Prot., General Permit – Net Pen

Aquaculture, Maine Pollutant Discharge Elimination System Permit

No. MEG130000, Maine Waste Discharge License #W0090206H-D-R (2014) (failing to include numeric eff luent limits for

aquaculture pollutants of concern—like nutrients, total suspended

solids, dissolved oxygen, or biological oxygen demand—in net pen

aquaculture general permit).

7. Unfair, Merriam-Webster, https://www.merriam-webster.

com/dictionary/unfair#:~:text=1,%2C%20 partiality%2C%20

or%20deception%20%3A%20unjust (last visited Aug. 26, 2024).

5

comply with the provisions of their NPDES permits, it is

small businesses that suffer.

A.

Narrative Permit Provisions that Protect

Water Quality Benefit Commercial Fish and

Shellfish Harvesters.

The commercial fishing industry relies on clean water

to sustain the livelihoods of small businesses and boat

owners. John Mellor, 8 a 61-year-old lifelong commercial

fisherman, operates a 40-foot boat named “High Hopes”

in San Francisco Bay. Over the course of his fishing

career, John has fished for salmon, herring, crab, rockfish,

sablefish, and halibut. John is a member of both the San

Francisco Herring Association and the San Francisco

Crab Boat Owner’s Association. One hundred percent

of John’s income comes from fishing. Over the course of

John’s life and career, he witnessed the decline of the

herring fishery in the San Francisco Bay as a result of

sewage discharges from the local wastewater treatment

plants.

The herring industry operates on a quota system:

fishermen are limited to catching a certain amount of

fish and fish eggs based on the previous year’s spawning

biomass. In the past, the herring fishery in San Francisco

was incredibly competitive, and according to John,

“massive” amounts of fish would come into the Bay to

breed. For many years, John filled his quota of herring

8. See Tara Duggan, There Will Be No Commercial Herring

Catch in SF Bay This Year, San Francisco Chronicle (Jan. 19,

2019), https://www.sfchronicle.com/food/article/Commercialherring-catch-in-SF-Bay-canceled-this-13545808.php.

6

eggs in just one or two nights. But more recently, after

sewage was consistently pumped into the Bay during

the rainy winter season, the herring disappeared—they

stopped spawning in San Francisco Bay and chose new

locations to spawn in Northern California and Oregon.

As a result, fishing for herring and herring eggs became

economically nonviable for John and other fishermen.

John is worried about his business and the livelihoods of

other small business owners in San Francisco Bay and

surrounding coastal areas. Not only has the diminished

water quality reduced his ability to fish for herring, but

John is also concerned about harms to the fishing industry

more broadly due to sewage overflow events and the

negative public perception regarding the consumption

of local fish. John and the commercial fishing industry

thus benefit from the water quality oversight provided by

narrative permit provisions.

Similarly, commercial lobstering businesses require

uncontaminated water and healthy aquatic ecosystems.

Eric Meschino, 9 a lobsterman who owns and operates

Smoky Sou’Wester Fishing out of Hull, Massachusetts,

depends on water quality that supports a thriving lobster

population. Eric’s lobstering business provides income to

one to two employees each year. Eric’s business requires

annual permits to fish in state and federal waters off the

coast of New England from May through January.

Eric sets his lobster traps in Massachusetts Bay

and Cape Cod Bay, which are impacted by wastewater

9. Board Members, Lobster Foundation of M assachusetts,

https://lobsterfoundationofma.org/board-members/ (last visited

Aug. 26, 2024).

7

treatment plant discharges.10 Eric is mostly concerned

about toxic chemicals like per-and polyf luoroalkyl

substances (“PFAS”) and pharmaceuticals harming his

business and the lobstering industry. Toxic chemicals

like PFAS can bioaccumulate, or build up, in food chains

after permitted facilities like wastewater treatment

plants release them into waterbodies.11 Those chemicals

not only threaten human health,12 but they also threaten

customers’ perceptions of seafood, jeopardizing Eric’s

livelihood. Eric relies on clean water and uncontaminated

lobsters that provide a safe and healthful protein source

for consumers. PFAS chemicals and pharmaceuticals

are often not addressed by numeric limits in facilities’

permits.13 Thus, narrative provisions provide a backstop

for addressing toxic pollution that concerns lobstermen

like Eric.

10. See U.S. EPA, NPDES Permit No. MA0103284—

Massachusetts Water Resources Authority (2000) at 1 [hereinafter

Deer Island Permit] (authorizing discharges “to receiving waters

located in Massachusetts Bay, which is adjacent to Cape Cod Bay.”)

11. See 87 Fed. Reg. 36848, 36849 (June 21, 2022) (“Many

PFA S a re env i ronmentally persistent , bioaccumulative,

and have long half-lives in humans . . . .”); see also Kyle A.

Thompson et al., Poly- and Perf luoroalkyl Substances in

Municipal Wastewater Treatment Plants in the United States:

Seasonal Patterns and Meta-Analysis of Long-Term Trends and

Average Concentrations, 2 ACS ES&T Water 690, 690 (2022).

12. See Nadia Barbo et al., Locally caught freshwater fish

across the United States are likely a significant source of exposure

to PFOS and other perfluorinated compounds, 220 ENV’T RSCH.

1, 8 (2023).

13. See Part III(B), infra.

8

The commercial shrimping industry also requires

clean water and healthy ecosystems to support the shrimp

they catch. Dean Blanchard14 has been in the shrimp

industry for more than forty years and owns and operates

Dean Blanchard Seafood Inc. in Grand Isle, Louisiana.

Dean has spent his career shrimping and owning and

operating a shrimp dock and processing facility in an area

slightly west of where the Mississippi River discharges

into the Gulf of Mexico. Dean spent his days on the water

between 1974 and 1982, but he now spends his time on the

dock and at the processing facility, where he purchases

much of his product from shrimpers who still operate in

the Gulf. Chemical and nutrient pollution discharged by

large facilities into the Gulf of Mexico threaten Dean’s

business. In recent years, this pollution has driven the

shrimp away from the areas in which Dean relies for

purchasing and processing, causing his market share of

warm water shrimp in the United States to fall from ten

to eleven percent to two to three percent.

The most significant threat to Dean’s business is

degraded water quality resulting in “dead zones” in the

Gulf of Mexico. The dead zones are caused by chemicals

and nutrients that f low into the Gulf from various

upstream sources of pollution, including chemical plants.

Because oxygen levels plummet in dead zones, the shrimp

Dean normally relies on for his business are forced to flee

and are pushed towards the shore in search of oxygen.

Ultimately, the shrimp even jump up onto the beach and

14. Dean Blanchard Seafood, Inc., Wild A merican Shrimp,

https://americanshrimp.com/suppliers/dean-blanchard-seafood/

(last visited Aug. 26, 2024).

9

die.15 This phenomenon has become increasingly worse in

the Gulf as water quality declines, leaving few shrimp left

for the shrimpers Dean purchase from to catch. Without

clean water supporting a healthy shrimp population, Dean

will not be able to continue to operate his business.

Oyster farmers also rely on good water quality to

sustain their businesses. For example, David Berlinsky

and Evan Clough run Granite State Shellfish, which farms

oysters in Durham, New Hampshire and sells them to

the “half shell market.” The half shell market supplies

oysters for customers to consume raw. Because they are

selling raw oysters, a seafood product that is extremely

sensitive to water quality conditions, David and Evan are

especially concerned about maintaining excellent water

quality for their farm and business.

The summer of 2023 was troubling for Granite State

Shellfish because of water quality concerns. Due to

sewage pollution and resulting high bacteria levels, the

oyster farm was forced to shut down every month for

one or two weeks at a time. As a result, business sales

took a major hit. Narrative provisions are essential for

avoiding devastating effects on small business owners like

David and Evan. For example, over the fifteen years that

15. See Endre Szalay, Breathing Life into the Dead Zone:

Can the Federal Common Law of Nuisance Be Used to Control

Nonpoint Source Water Pollution, 85 Tul. L. Rev. 215 (2010) (citing

Nancy N. Rabalais, R. Eugene Turner & William J. Wiseman, Jr.,

Gulf of Mexico Hypoxia, A.A. “The Dead Zone,” 33 A nnual Rev.

Ecology & Systematics 235, 244 (2002)); see also John D. Sutter,

Minnesota Farmer Battles Gulf ‘Dead Zone,’ CNN (Aug. 30,

2010), https://www.cnn.com/2010/TECH/innovation/08/30/gulf.

dead.zone.minnesota.farm/index.html.

10

David has been running Granite State Shellfish, he has

noticed improvements in water quality when wastewater

treatment plants have upgraded their pollutant treatment

systems. And those upgrades are often a result of the

plant’s narrative water quality provisions, at least in

part.16

B. Narrative Permit Provisions that Protect

Water Quality Benefit Tourism Businesses.

The tourism sector also depends on CWA-compliant

water quality to succeed and to sustain the livelihoods

of business owners and employees. Permitted facilities

16. For example, the City of Portsmouth commented on the

Draft NPDES Permit that EPA issued to it in 2023, advocating for

EPA to remove a narrative provision similar to those that petitioner

challenges here, and requesting that EPA not require compliance

with water quality standards until after the City implements

its Long Term Control Plan (“LTCP”) for combined sewage

overflow discharges (“CSOs”). Env ’t P rot. Agency, Response

to Comments , NPDES P ermit No. NH0100234, P eirce Island

Wastewater Treatment Facility, Portsmouth, New H ampshire

at 51–52 (2023). In denying that request, EPA first noted that

LTCP development and abatement schedules for CSO pollution

has occurred through enforcement actions and then referenced

the importance of narrative water quality standards, stating that

EPA policies underscore the importance of ensuring that CSO

discharges achieve state water quality standards including those

that are narrative.” Id. (citing NPDES Permit Writer’s M anual,

EPA at 9-16 to 9-17 (Sept. 2010); Combined Sewer O verflows:

Guidance for Permit Writers, EPA Office of Water, at 3-36 to

3-37, 4-27 (Sept. 1995)) (“The CSO Guidance specifically states that

‘in addition to performance standards designed to meet WQS, the

permit writer should include narrative permit language providing

for the attainment of applicable WQS.’”)

11

discharging pollution affect businesses like charter boat

companies and guided tour operators that conduct their

businesses in and on our Nation’s waters.

For example, Captain Peter Whelan17 is a registered

Maine Guide with a Coast Guard Captains License who

owns and operates Shoals Fly Fishing and Light Tackle,

a charter boat company that takes guided tours fly fishing

on the New Hampshire and Maine coast, including in

Portsmouth Harbor, Great Bay, and Little Harbor in

New Hampshire, and near Piscataqua, York, Kittery,

and Kennebunk in Maine. Captain Whelan often takes

tourists fishing in the mouth of the Piscataqua River,

a critical part of the Great Bay estuary that tidally

connects the inland Great Bay with the Gulf of Maine.

Captain Whelan’s business depends on water quality and

ecosystem health. When water quality is good, eelgrass

grows. Eelgrass provides a habitat for small baitfish,

which feed the migratory predator fish (like bluefish and

striped bass) that Captain Whelan’s clients seek to catch.

But when water quality is bad, eelgrass declines, reducing

available habitat for baitfish, and, in turn, the migratory

predator fish that feed on them. The result is that Captain

Whelan is left with fewer fishing spots to take his clients.

Therefore, if water quality suffers, in Captain Whelan’s

words: “I don’t have a business.”

Thirteen wastewater treatment plants discharge

into rivers that feed into the New Hampshire waters

where Captain Whelan takes chartered tours. Combined

sewer overflows from those wastewater treatment plants

17. Home, Shoal’s Fly Fishing and Light Tackle, https://

shoalsflyfishing.com/ (last visited Aug. 26, 2024).

12

contribute to degradation of water quality and harm the

Great Bay ecosystem. The Great Bay has lost roughly

half of its eelgrass, removing prime baitfish habitat, and

reducing the location options for Captain Whelan’s charter

boat. In the past, during major rain events, the Piscataqua

River turned from blue to almost brown as a result of

combined sewer overflows from wastewater treatment

plants and stormwater runoff from land. Captain Whelan

was forced to cancel tours, and he is extremely concerned

about the future of his business and supports narrative

prohibitions in NPDES permits as a backstop to numeric

effluent limits that alone do not protect water quality.

In addition to fishing charters, kayaking and paddling

businesses depend on clean water. Peter Sawtell18 owns

and serves as Lead Kayaking Instructor for Seven Rivers

Paddling. Peter runs guided kayak and paddleboard

tours of the tidal waterways and rivers near Portsmouth,

Newcastle, and Newmarket, New Hampshire. The

business provides paddle sports opportunities for both

tourists and people who live in nearby communities. Water

quality is important for Peter’s business because during

his kayaking and paddling tours, groups often swim and

recreate in the water. Peter has lost business because of

water quality issues in the past, both because he has had to

cancel tours and because poor water quality has deterred

customers from signing up for tours.

For example, Peter’s company has been negatively

impacted by poor water quality near Jenness Beach

in New Hampshire, when waterways have been closed

18. A Bit About Us, Seven Rivers Paddling, https://www.

sevenriverspaddling.com/about-us (last visited Aug. 26, 2024).

13

for swimming due to poor water quality. Peter has also

stopped bringing paddling and kayaking groups to a

portion of the Lamprey River because bacteria levels

make it unsafe for swimming. Peter’s livelihood depends

on having water quality that allows for safe paddling and

swimming. Narrative permit provisions that incorporate

water quality standards ensure that EPA can adequately

address pollution from facilities that cause or exacerbate

water quality violations that threaten Peter’s business.

II. T H E CLEA N WAT ER ACT AU T HORIZES

PER M I T T I NG AGENCI E S T O I NC LU DE

NARRATIVE WATER QUALITY STANDARDS

IN NPDES PERMITS.

A.

Congress Recognized the Clean Water’s Act’s

Objective of Water Quality Improvement as

Important for Small Businesses.

The Clean Water Act declares a single “objective”

that focuses on protecting water quality: “restor[ing]

and maintain[ing] the chemical, physical, and biological

integrity of the Nation’s waters.” See 33 U.S.C. § 1251(a).

To accomplish that objective, Congress established

interim goals that also emphasize the Act’s commitment

to securing clean water. Id. § 1251(a)(1)-(2) (setting

interim goals that (1) “the discharge of pollutants into

the navigable waters be eliminated by 1985;” and (2) “that

wherever attainable,” water quality should “provide[]

for the protection and propagation of fish, shellfish, and

wildlife and provide[] for recreation in and on the water”

by 1983.).

The 1972 statute and its 1977 amendments envision

the NPDES permitting system to achieve its ultimate

14

water quality objective, not as a program solely intended

to provide permitted facilities with assurances against

enforcement actions. See Env’t Prot. Agency v. California

ex rel. State Water Res. Control Bd., 426 U.S. 200,

204 (1976) (emphasis added) (“[T]he Amendments are

aimed at achieving maximum ‘effluent limitations’ on

‘point sources,’ as well as achieving acceptable water

quality standards.”); City of Milwaukee v. Illinois &

Michigan, 451 U.S. 304, 318 (1981) (citing S. Rep. No.92414, at 95, 2 Leg. Hist. 1511) (emphasis in original) (“The

‘major purpose’ of the Amendments was ‘to establish

a comprehensive long-range policy for the elimination

of water pollution.’”); Piney Run Pres. Ass’n v. Cnty.

Comm’rs of Carroll Cnty., MD, 268 F.3d 255, 265 (4th Cir.

2001) (“[D]espite the CWA’s shift in focus of environmental

regulation towards the discharge of pollutants, water

quality standards still have an important role in the CWA

regulatory scheme.”)

Congress recognized the interdependent relationship

between water quality and economic security for small

businesses when enacting the Clean Water Act in 1972

and when amending the Act in 1977. In the Senate debates

on the legislation that became the Clean Water Act of

1972, one Senator referred to water quality protection

as essential for “vital industries.”19 The 1971 Senate

Report for this legislation stated that saltwater intrusion,

another water quality issue, “must be accounted for and

controlled” because it “often devastates the commercial

shellfish industry.” 20 In 1977, in the House debates on the

Act’s amendments, one Representative highlighted the

19. 117 Cong. Rec. 38864 (1971).

20. S. Rep. No. 92-414, at 3706 (1971).

15

“severe economic hardship” that fishermen faced because

of toxic water pollution.21 Compliant water quality remains

essential today for the “vital industries” discussed in

Part I, above—commercial fishing, lobstering, shrimping,

oyster farming, and tourism.

B. The Challenged Narrative Provisions are

Necessar y to Achieve Compliance with

the Clean Water Act because Numeric and

Specific Narrative Provisions do not Address

All Pollutants or Changing Water Quality

Conditions.

To achieve the Clean Water Act’s water quality

objective, section 301(b) requires permits to include

both numeric effluent limits and “any more stringent

limitation, including those necessary to meet water quality

standards . . . required to implement any applicable water

quality standard established pursuant to this chapter.” 33

U.S.C. § 1311(b)(1)(A)–(C); see also San Francisco v. EPA,

75 F.4th 1074, 1089 (9th Cir. 2023). Permitting authorities

may not issue a final permit that fails to “provide for

compliance with the applicable requirements of CWA[.]”40

C.F.R. § 122.4(a).

Narrative permit provisions that prohibit water

quality standard violations fall within the statutory

requirement for permits to include “any more stringent

limitation” that is “necessary to meet water quality

standards” under CWA section 301(b)(1)(C). See Resp.

Br. in Opp. to Cert. 12. In National Association of

Manufacturers v. Department of Defense, this Court

21. 123 Cong. Rec. 38978 (1977).

16

recognized that “limitation” under section 301(b)(1)(C)

means an “other limitation,” not an “effluent limitation.”

583 U.S. 109, 122-23 (2018). There, this Court described

the “limitation” in section 301(b)(1)(C) as a “concrete

example[] of the type of ‘other limitation’ Congress had

in mind” when providing jurisdiction for review of EPA

actions “approving or promulgating any effluent limitation

or other limitation[.]” Id. at 121-22 (emphasis added);

see also 33 U.S.C. § 1362(17). In National Association of

Manufacturers, this Court refused to “override Congress’

considered choice by rewriting the words of the” Clean

Water Act. Id. at 128. (internal citation omitted). The

Court should similarly refuse to rewrite the Act here.

Narrative provisions that incorporate water quality

standards are often “necessary to meet water quality

standards.” 33 U.S.C. § 1311(b)(1)(C). Numeric and

specific narrative effluent limitations are essential to

the NPDES permitting scheme, but they do not cover

all pollutants that impact water quality, and they do not

account for changing conditions in waterbodies. See PUD

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

511 U.S. 700, 717 (1994) (stating that particular criteria

“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.”);

Ohio Valley Env’t Coal., Inc. v. Marfork Coal Co., 966 F.

Supp. 2d 667, 685 (S.D.W. Va. 2013) (upholding a permit

provision incorporating state water quality standards

“[a]s a backstop” that “protects water quality standards

that [the permitting agency] did not anticipate would be

threatened based on the discharge levels reported in a

permit application.”)

17

Pairing numeric limitations with narrative provisions

that incorporate state water quality standards ensures

that facilities discharging a wide range of pollutants

into a constantly changing ecosystem do not violate

water quality standards. See Upper Blackstone Water

Pollution Abatement Dist. v. U.S. E.P.A., 690 F.3d 9, 14

(1st Cir. 2012) (citing 33 U.S.C. § 1311(b)(1)(C)) (“State

water quality standards generally supplement [federal,

technology-based] effluent limitations, so that where one

or more point source dischargers, otherwise compliant

with federal conditions, are nonetheless causing a violation

of state water quality standards, they may be further

regulated to alleviate the water quality violation.”) EPA

has included these provisions in “many EPA-issued

NPDES permits, both individual permits and widely

applicable general permits[.]” Ohio Valley Env’t Coal.

v. Fola Coal Co., Brief for the United States as Amicus

Curiae, 2016 WL6524150, at *6.

Requiring compliance with state water quality

standards also protects small businesses that rely on clean

water. For example, “meet[ing] water quality standards,”

see 33 U.S.C. § 1311(b)(1)(C), often means that facilities

cannot discharge toxic substances in harmful amounts.

See San Francisco Bay Regional Water Quality Control

B oard, Water Q ualit y C ontrol P lan for the S an

Francisco Bay Basin § 3.3.18 [hereinafter Basin Plan]

(“All waters shall be maintained free of toxic substances

in concentrations that are lethal to or that produce other

detrimental responses in aquatic organisms.”); 314 M ass.

Code Regs. § 4.05(5)(e) (“All surface waters shall be free

from pollutants in concentrations or combinations that

are toxic to humans, aquatic life or wildlife.”); La. A dmin.

Code. 33 IX § 1113(B)(1)(d) (“All waters shall be free

18

from such concentrations of substances attributable to

wastewater or other discharges sufficient to . . . injure,

be toxic, or produce demonstrated adverse physiological

or behavioral responses in humans, animals, fish, shellfish,

wildlife, or plants[.]”) N.H. Code A dmin. Env-Wq 1703.21

(“Unless naturally occurring or allowed under EnvWq 1707, all surface waters shall be free from toxic

substances or chemical constituents in concentrations or

combinations that . . . (1) Injure or are inimical to plants,

animals, humans or aquatic life; or . . . (2) Persist in the

environment or accumulate in aquatic organisms to levels

that result in harmful concentrations . . . .”). Narrative

provisions that incorporate those state standards ensure

that permits can protect small business owners who

harvest and sell seafood, or business owners who rely on

bringing tourists to waterbodies safe for swimming.

In addition, “meet[ing] water quality standards,” see

33 U.S.C. § 1311(b)(1)(C), means that a facility cannot

violate a beneficial or designated use, which often

means that a facility’s discharges cannot jeopardize a

waterbody’s ability to support fish and/or shellfish. See

Basin Plan at § 2.1.4 (establishing a beneficial use of

“commercial, and sport fishing,” for “[u]ses of water for

commercial or recreational collection of fish, shellfish,

or other organisms, including, but not limited to, uses

involving organisms intended for human consumption or

bait purposes.”); 314 M ass. Code Regs. § 4.05(4)(a), (b)

(“Where designated for shellfishing . . . these waters

shall be suitable for shellfish harvesting . . . .”) La. A dmin.

Code. 33 IX § 1111(A) (emphasis added) (establishing a

designated use of “Oyster Propagation,” which is “the

use of water to maintain biological systems that support

economically important species of oysters, clams, mussels,

19

or other mollusks so that their productivity is preserved

and the health of human consumers of these species is

protected.”); N.H. Code A dmin Env-Wq § 1702.17(b), (c)

(listing designated uses of “[f]ish consumption, meaning

the surface water can support a population of fish free

from toxicants and pathogens that could pose a human

health risk to consumers;” and “[s]hellfish consumption,

meaning the tidal surface water can support a population

of shellfish free from toxicants and pathogens that could

pose a human health risk to consumers[.]”).

Narrative permit provisions, therefore, ensure that

permits protect the livelihoods of individuals who rely on

having adequate populations of fish and shellfish to sell

as food to consumers or to sustain charter businesses.

III. LIMITING AGENCIES’ ABILITY TO INCLUDE

NA RR ATI V E PROHI BITIONS I N N PDES

PERMITS WOULD HARM CLEAN WATERDEPENDENT LOCAL BUSINESSES.

A.

NPDES Permits with Narrative Provisions

Protect Local Economic Interests by Serving

as a Backstop When Numeric Limitations

Alone Do Not Suffice to Protect Water Quality.

Narrative permit provisions—and the state narrative

standards they incorporate—address water quality issues

that can persist even when permits contain numeric limits.

See also San Francisco v. EPA, 75 F.4th 1074, 1092 (9th

Cir. 2023). When numeric effluent limits alone do not

protect water quality and the small businesses that depend

on clean water, narrative provisions incorporating water

quality standards provide a legitimate and beneficial

20

oversight tool for achieving the CWA’s stated water quality

goal.

John Mellor’s experience in San Francisco Bay and

the permit violations identified in the recent enforcement

action against San Francisco’s Bayside wastewater

treatment facility epitomize the benefit of narrative

permit provisions. John Mellor has experienced herring

populations in the San Francisco Bay plummet because

of sewage overflow discharges from San Francisco’s

wastewater treatment outfalls, and he was forced to stop

fishing for herring as a result. The federal Department

of Justice and California Regional Water Quality Control

Board recently filed an enforcement action to address

sewage discharges into the San Francisco Bay from the

City’s Bayside outfalls. See Pet. Supp. Br. at 2-3, San

Francisco v. EPA, No. 23-753 (2024) (citing Complaint

¶¶ 110 -112, United States v. City & Cnty. of San

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

That enforcement suit alleges that the Bayside wastewater

treatment facility, which discharges into the waters

where John Mellor fishes, contravened the narrative

prohibition incorporating state water quality standards

by discharging pollutants in amounts that violate its

beneficial uses (protection of water contact recreation

and aquatic life). Complaint ¶¶ 110–13, United States v.

City & Cnty. of San Francisco, No. 3:24-cv-02594 (N.D.

Cal. May 1, 2024), available at https://perma.cc/HT8MSS35. The narrative provision requiring compliance with

state water quality standards thus allowed enforcement

authorities to address beneficial uses, which are integral

components of the CWA that protect small businesses like

John’s. See PUD No. 1 of Jefferson Cnty. v. Washington

Dep’t of Ecology, 511 U.S. 700, 700 (1994) (citing 33 U.S.C.

21

§ 1251(a)) (stating that a designated use protecting habitat

for fish “directly reflects the Clean Water Act’s goal

of maintaining the ‘chemical, physical, and biological

integrity of the Nation’s waters.’”)

Petitioner laments the “risk” and “predicament” of

enforcement authorities using narrative prohibitions to

hold the City responsible for discharging “an average of

1.8 billion gallons of combined sewage each year from its

combined sewer systems into the Pacific Ocean and San

Francisco Bay.” Pet. Supp. Br. at 1–3 (citing Complaint

¶¶ 76–88, United States v. City & Cnty. of San Francisco,

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

https://perma.cc/HT8M-SS35). But enforcing narrative

provisions that require compliance with codified state laws

to hold the City accountable for releasing billions of gallons

of raw sewage into marine ecosystems is better framed as

an action that mitigates the risks and predicaments facing

the San Francisco Bay ecosystem and the businesses that

depend upon its health. The enforcement suit exemplifies

that narrative standards facilitate compliance with the

statute’s stated purpose.

Circumstances in the Great Bay watershed, where

Captain Whelan, Peter Sawtell, Evan Clough, and David

Berlinsky operate small tourism and oyster farming

businesses, also demonstrate the benefits of having a

water quality backstop. Thirteen wastewater treatment

facilities discharge wastewater into New Hampshire

surface waters in the Great Bay estuary. 22 All of those

22. U.S. EPA, NPDES Permit No. NHG58A000—New

Hampshire (2020) at 3 [hereinafter Total Nitrogen General

Permit].

22

facilities are subject to numeric limits for nitrogen. 23 All

are also subject to numeric limits for total suspended

solids and bacteria, among other pollutants. 24 In addition

to those numeric limits, the facilities’ individual permits

or authorizations include narrative provisions that

incorporate water quality standards. Like the provisions

that petitioner challenges, those narrative provisions

provide that “[t]he discharge shall not cause a violation

of the water quality standards of the receiving water.” 25

23. Id.

24. U.S. EPA, NPDES Permit No. NH0101311—City of

Dover (2006) at 2 [hereinafter Dover Permit]; U.S. EPA, NPDES

Permit No. NH 0100455—Town of Durham (1999) at 2 [hereinafter

Durham Permit]; U.S. EPA Authorization to Discharge Under the

NPDES Small Wastewater Treatment Facility General Permit

No. NHG580012—Town of Epping (2022) at 2–3 [hereinafter

Epping Permit]; U.S. EPA, NPDES Permit No. NH0100871—

Town of Exeter (2022) at 2 [hereinafter Exeter Permit]; U.S.

EPA, NPDES Permit No. NHG581141—Town of Newington (2022)

at 2 [hereinafter Newington Permit]; U.S. EPA, Authorization

to Discharge Under the NPDES Small Wastewater Treatment

Facility General Permit No. NHG580013—Town of Newmarket

(2023) at 2 [hereinafter Newmarket Permit]; U.S. EPA, NPDES

Permit No. NH0100234 — City of Portsmouth (2023) at 2

[hereinafter Pierce Island Permit]; U.S. EPA, NPDES Permit No.

NH0100668—City of Rochester (2023) at 2 [hereinafter Rochester

Permit]; U.S. EPA, NPDES Permit No. NH0100277—City of

Somersworth (2003) at 2 [hereinafter Somersworth Permit]; and

U.S. EPA, NPDES Permit No. NH0109000—City of Portsmouth

(2022) at 2 [hereinafter Portsmouth Permit].

25. Pierce Island Permit at 10; Rochester Permit at 8; Dover

Permit at 4; Exeter Permit at 8; Durham Permit at 5; Federal

Permit Somersworth Permit at 12; Portsmouth Permit at 9;

Newmarket Permit at 8; Epping Permit at 9; and Newington

Permit at 8.

23

The narrative provisions in the Great Bay permits serve

as a necessary backstop to numeric effluent limitations

and facilitate the Clean Water Act’s fundamental objective

of ensuring that permits issued under the Act provide for

compliance with water quality standards.

Maintaining a backstop for water quality protection

in the Great Bay estuary protects tourism businesses

and oyster farming businesses. Even though wastewater

treatment facilities in the Great Bay estuary must comply

with numeric nitrogen limits, total suspended solids

limits, and bacteria limits, small business owners have

still suffered because of nitrogen, turbidity caused by

suspended solids, and bacteria pollution. Specifically,

Captain Whelan has stopped taking his fishing charter

boat to some locations in the Great Bay estuary due to

eelgrass depletion, which is caused by excess nitrogen

and turbidity (or cloudiness that inhibits light). 26 Similarly,

Peter Sawtell has stopped taking kayaking and paddling

tours to certain portions of the Lamprey River because

of high bacteria levels that render the river unsafe for

swimming. Evan Clough and David Berlinsky’s oyster

farm has also shut down, for up to two weeks at a time, due

to high bacteria levels that make their oysters unsellable.

Reductions in water quality in the water bodies upon

which they depend would cause these harms to occur

more frequently.

26. Howarth et al., Aquaculture and Eelgrass Zostera

marina Interactions in Temperate Ecosystems, 14 Aquaculture

Env ’t Interactions 15, 20 (2022); James S. Latimer & Steven A.

Rego, Empirical Relationship Between Eelgrass Extent and

Predicted Watershed-Derived Nitrogen Loading for Shallow New

England Estuaries, 90 Estuarine, Coastal and Shelf Science

4, 4 (2010).

24

Thus, numeric limits alone are insufficient to protect

water quality and local livelihoods. Permits must include

backstop measures to address this shortcoming. By stating

that permits must include “any limitation necessary to

meet water quality standards,” 33 U.S.C. § 1311(b)(1)(C),

the Act authorizes permits to include state narrative water

quality requirements as a backstop in watersheds like the

Great Bay estuary, where water quality issues persist

despite specific numeric and narrative permit limits.

B. NPDES Permits with Narrative Provisions

Protect Local Economic Interests by Providing

Protection from Pollutants that Lack Numeric

Limits.

NPDES permit provisions that incorporate narrative

standards also protect water quality because many

permittees discharge pollutants that lack numeric limits,

despite the fact that those pollutants negatively affect

water quality. For example, Deer Island Wastewater

Treatment Facility—which releases wastewater into

Massachusetts Bay, where Eric Meschino operates his

lobster business—has a NPDES permit with both numeric

and narrative provisions. 27 One of Deer Island’s narrative

provisions states that the permittee’s “discharge shall not

cause or contribute to an exceedance of the current state

water quality standards, and/or impair any existing or

designated water use or cause any significant lowering

of water quality[.]” 28

27. See Deer Island Permit at 3–7.

28. Id. at 7.

25

There are no numeric limits in the Deer Island

Permit limiting toxic PFAS pollution, nor pharmaceutical

chemicals. 29 Eric Meschino, who catches lobsters in

waters affected by Deer Island, worries that those toxic

pollutants and endocrine disrupters will impact his

lobstering business and will harm the lobstering industry

generally. Eric is concerned that he, and the industry at

large, will suffer from loss of sales due to toxic pollution

building up in aquatic animals, which harms consumers’

health and impacts the public’s perception of seafood.

Because NPDES permits in the waters where Eric catches

lobsters omit limits for harmful chemicals including PFAS

and pharmaceuticals, narrative provisions incorporating

state standards provide EPA the ability to address water

quality issues that harm and concern small business

owners.

29. Id. at 3. EPA issued a Draft Permit for the Deer

Island Wastewater Treatment Facility in 2023 but has not yet

finalized the permit. See U.S. EPA, Draft NPDES Permit No.

MA0103284—Massachusetts Water Resources Authority at 4

(2023). The Draft permit similarly did not contain numeric effluent

limits for PFAS or pharmaceuticals in water discharges; thus, the

narrative provision incorporating state water quality standards

remains necessary to address these pollutants. See U.S. EPA,

Draft NPDES Permit No. MA0103284—Massachusetts Water

Resources Authority (2023) Fact Sheet at 89 (“Although the

Massachusetts water quality standards do not include numeric

criteria for PFAS, the Massachusetts narrative criterion for toxic

substances at 314 CMR 4.05(5)(e) states: ‘All surface waters shall

be free from pollutants in concentrations or combinations that

are toxic to humans, aquatic life or wildlife.’”); see also id. at 91

(internal citation omitted) (recognizing that pharmaceuticals

can “cause significant reproductive effects at very low levels of

exposure” for aquatic life but failing to establish monitoring

requirements or limits.)

26

C.

NPDES Permits with Narrative Provisions

Protect Local Economic Interests by Serving

as a Backstop to Address Changing Conditions

in Waterbodies, Especially Where Permits

Have Been Indefinitely Administratively

Continued.

Narrative water quality standards ensure permits

are protective when new threats to water quality emerge.

For example, the Gulf of Mexico dead zone, where Dean

Blanchard runs his shrimp purchasing and processing

operation, changes significantly from year to year. The

dead zone results from the build-up of pollutants that are

discharged into the Gulf from facilities and agricultural

sources along the Mississippi River. 30 Narrative water

quality standards in permits issued to facilities in the Gulf

allow the permitting authority to protect water quality,

as required by the CWA, by accounting for changing

conditions in receiving waters. For example, facilities

located in Terrebonne Parish, which has extensive

coastline along the Gulf, have received general coastal

CWA permits from the Louisiana permitting authority. 31

Allowing the permitting authority to include narrative

standards in these permits protects the permitting

authority’s ability to respond to changing water quality

as that agency enforces the permits. When chemicals and

nutrients are discharged into the Gulf during periods of

30. Ocean Today, Dead Zone in the Gulf of Mexico, NOAA,

https://oceantoday.noaa.gov/deadzonegulf/.

31. See e.g., Louisiana Department of Environmental Quality,

Gen-LAG33-Coastal - LAG33A320—J C Dupont (2021); Louisiana

Department of Environmental Quality, Gen-LAG33-Coastal LAG33A319—J C Dupont (2021).

27

expansive dead zones, these narrative standards are a tool

envisioned by the CWA that the permitting authority can

use to respond to those changing conditions.

Dean Blanchard has experienced the impacts of

changing water quality over time. As the Gulf Dead Zone

has grown, his business has suffered significant losses.

Preserving narrative water quality standards in NPDES

permits protects the agency’s ability to enforce the heart

of the CWA by ensuring that polluters do not cause water

quality to fall below acceptable levels. Removing these

protections would further threaten the economic wellbeing

of Dean Blanchard and similarly situated business owners.

NPDES permit provisions that incorporate narrative

standards also provide EPA the ability to address changing

conditions in waterbodies when permits remain in effect

for longer than their statutory expiration dates. While

the CWA authorizes NPDES permits for five years, see

33 U.S.C. § 1342(a)(3), (b)(1)(B), permits often remain in

effect for longer when they are administratively continued.

Nat. Res. Def. Council v. EPA., 915 F.2d 1314, 1319 (9th

Cir. 1990) (“NPDES permits are issued for periods of no

more than five years, although administrative delays can

extend de facto the duration of the permits.”). 32

32. See also Karl S. Coplan, Of Zombie Permits and

Greenwash Renewal Strategies: Ten Years of New York’s

So-Called “Environmental Benefit Permitting Strategy”, 22

Pace Env ’t L. Rev. 1 (2005) (stating that in the 1980s, shortly

after the Clean Water Act of 1972’s passage, “more than 6,000

undead State Pollutant Discharge Elimination System (SPDES)

permits in New York State roamed the State well beyond their

statutory expiration date because the State Department of

Environmental Conservation (DEC) had not processed permit

renewal applications.”)

28

For example, Deer Island wastewater treatment

plant operates under an administratively continued

NPDES permit, which was issued in 1999 and modified

in 2000. 33 That permit discharges into Massachusetts

Bay and contains a narrative provision incorporating

“current state water quality standards,” as discussed

above. 34 The Durham and Somersworth wastewater

treatment plants’ permits were issued in 1999 and 2003,

respectively, and are also administratively continued. 35

Both wastewater treatment plants affect the Great Bay

estuary in NH, and they both contain narrative provisions

incorporating state water quality standards. 36 When

permits are administratively continued for long periods of

time, narrative water quality standards are an especially

important backstop. These provisions can address gaps

that arise when unchanging numeric effluent limits remain

in effect for several decades.

33. See Deer Island Permit.

34. Deer Island Permit, at 1, 7. As noted in Part III(B), EPA

issued a Draft Permit for the Deer Island Wastewater Treatment

Facility in 2023 but has not yet finalized the permit. See U.S. EPA,

Draft NPDES Permit No. MA0103284—Massachusetts Water

Resources Authority at 4 (2023).

35. See Durham Per mit; Detailed Facility Repor t:

Durham Wastewater Treatment Facility, Enforcement and

Compliance History Online, https://echo.epa.gov/detailedfacility-report?fid=110006619212 (last updated May 13, 2024)

(listing Durham’s indiv idual per mit at administratively

continued); Somersworth Permit; Detailed Facility Report:

Somersworth Wastewater Treatment Plant, Enforcement and

Compliance History Online, https://echo.epa.gov/detailed-facilityreport?fid=110020142987 (last updated May 13, 2024) (listing

Somersworth’s individual permit at administratively continued).

36. Durham Permit at 5; Somersworth Permit at 12.

29

Facilities with administratively continued permits,

like Deer Island’s, Durham’s, and Somersworth’s

wastewater treatment plants, have unchanging permit

limits but impact water bodies with improving water

quality. Thus, when those permits incorporate up-to-date

state water quality standards by reference, they ensure

facilities can meet the CWA’s objective to “restore and

maintain the chemical, physical, and biological integrity

of the Nation’s waters.” See 33 U.S.C. § 1251(a).

Businesses that operate in Massachusetts Bay,

like Eric Meschino’s lobstering business, benefit when

facilities’ permits contain narrative provisions that can

ensure compliance with modern water quality standards

and improved water quality. Those narrative water

quality standards help ensure that permits which are

administratively continued remain protective of water

quality when conditions change in Massachusetts Bay and

when facilities like the Deer Island plant discharge persistent

and bioaccumulative toxins like PFAS and polychlorinated

biphenyls (“PCBs”) into the Bay.37 The build-up of those

pollutants over time presents a serious threat to the lobster

37. U.S. EPA, Draft NPDES Permit No. MA0103284—

Massachusetts Water Resources Authority (2023) Fact Sheet

at 89 (“EPA is collecting information to evaluate the potential

impacts that discharges of PFAS from wastewater treatment

plants may have on downstream drinking water, recreational and

aquatic life uses.”); 87 Fed. Reg. 36848, 36849 (June 21, 2022);

Deer Island Permit at 3 (setting limit for PCBs); Agency for Toxic

Substances and Disease Registry, ATSDR CASE STUDIES

IN ENVIRONMENTAL MEDICINE POLYCHLORINATED

BIPHENYLS (PCBS) TOXICITY, U.S. Department of Health

and Human Services (2014) at 18–19, 21, https://www.atsdr.cdc.

gov/csem/pcb/docs/pcb.pdf.

30

population and to Eric’s business, and narrative provisions

provide EPA the authority to address those threats.

Similarly, businesses like Captain Whelan’s, Peter Sawtell’s,

Eric Clough’s, and David Berlinsky’s that operate in the

Great Bay estuary benefit from narrative protections in the

Durham and Somersworth wastewater treatment plants.

Those provisions allow for updated water quality protections

despite stagnant permits that have remained effective long

past the timeline that Congress envisioned.

CONCLUSION

Amici and similar water-dependent businesses rely

on water quality that complies with the Clean Water

Act. NPDES permits must ensure compliance with

the Act, including compliance with state water quality

standards. Narrative provisions incorporating state

water quality standards ensure that permits comply with

those standards and the Act. In doing so, those narrative

provisions provide a water quality backstop that supports

small businesses. The judgment of the Court of Appeals

should be affirmed.

Respectfully Submitted,

Keith P. Richard

Counsel of Record

Richard L. Qualey

A rchipelago

One Dana Street, 4th Floor

Portland, Maine 04101

(207) 558-0102

krichard@archipelagona.com

Counsel for Amici Curiae