Petition for Writ of Certiorari — Port of Tacoma, et al., Petitioners v. Puget Soundkeeper Alliance

Supreme Court briefSep 25, 2024

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No. ______

In the

Supreme Court of the United States

PORT OF TACOMA; SSA TERMINALS, LLC; AND

SSA TERMINALS (TACOMA), LLC,

Petitioners,

PUGET SOUNDKEEPER ALLIANCE,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BRADFORD T. DOLL

LYNNE M. COHEE

FOSTER GARVEY PC

1111 Third Avenue

Suite 3000

Seattle, WA 98101

Counsel for Petitioner

Port of Tacoma

BRADLEY B. JONES

DIANNE K. CONWAY

GORDON THOMAS

HONEYWELL LLP

1201 Pacific Avenue

Suite 2100

Tacoma, WA 98402

Counsel for Petitioners

SSA Terminals, LLC, and

SSA Terminals (Tacoma),

LLC

GREGORY G. GARRE

Counsel of Record

ROMAN MARTINEZ

BLAKE E. STAFFORD

CHRISTINA R. GAY

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioners

Port of Tacoma,

SSA Terminals, LLC, and

SSA Terminals (Tacoma),

LLC

QUESTION PRESENTED

Section 505 of the Clean Water Act (“CWA”) grants

federal courts jurisdiction over citizen suits enforcing

“a permit or condition of a permit” if it is “issued

under” Section 402 of the CWA. 33 U.S.C. § 1365(a),

(f). Section 402 of the CWA establishes the National

Pollutant Discharge Elimination System (“NPDES”),

a federal permitting regime that governs the

discharge of pollutants from point sources into

navigable waters. Id. § 1342.

The State of Washington, like many States, issues

general pollutant-discharge permits that regulate

broad sectors of the economy.

These permits

frequently combine federal requirements for point

sources subject to the CWA with additional

requirements authorized by state law. Below, the

Ninth Circuit held that Section 505 authorizes

citizens to enforce in federal court any condition of

Washington’s combined permit for industrialstormwater discharges, even those adopted under

state-law authority that mandate “a greater scope of

coverage” than the CWA. App.13a (citation omitted).

As the Ninth Circuit acknowledged, that rule

“directly conflicts with” Second Circuit precedent on

the authority conferred by the CWA’s citizen-suit

provision. App.13a, 19a (citation omitted).

The question presented is:

Whether Section 505 of the CWA authorizes

citizens to invoke the federal courts to enforce

conditions of state-issued pollutant-discharge permits

adopted under state law that mandate a greater scope

of coverage than required by the CWA.

PARTIES TO THE PROCEEDING

Petitioners Port of Tacoma; SSA Terminals, LLC;

and SSA Terminals (Tacoma), LLC, were defendantsappellees/cross-appellants below. SSA Marine, Inc.,

was a defendant-appellant below and is not

participating in the proceedings before this Court.

APM Terminals Tacoma, LLC, and Don Esterbrook

were named as defendants in the United States

District Court for the Western District of Washington

and are not participating in the proceedings before

this Court.

Respondent Puget Soundkeeper Alliance was

plaintiff-appellant/cross-appellee below.

iii

RELATED PROCEEDINGS

Puget Soundkeeper Alliance v. Port of Tacoma,

Nos. 21-35881, 21-35889, 22-35061, United States

Court of Appeals for the Ninth Circuit, judgment

entered June 10, 2024.

Puget Soundkeeper Alliance v. SSA Terminals,

LLC, No. C17-5016-BHS, United States District

Court for the Western District of Washington,

judgment entered September 16, 2021.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ......................................... i

PARTIES TO THE PROCEEDING ........................... ii

RELATED PROCEEDINGS ..................................... iii

TABLE OF AUTHORITIES .................................... vii

OPINIONS AND ORDERS BELOW ..........................1

JURISDICTION ..........................................................1

STATUTORY

AND

REGULATORY

PROVISIONS INVOLVED .................................1

INTRODUCTION .......................................................2

STATEMENT OF THE CASE ....................................4

A. The Clean Water Act ...................................4

B. Washington’s Industrial Stormwater

General Permit ............................................7

C. West Sitcum Terminal Wharf .....................9

D. Proceedings Below .....................................12

REASONS FOR GRANTING THE WRIT................15

The

Decision

Below

Cements

Acknowledged Circuit Conflict Over The

Scope Of The CWA’s Citizen-Suit Provision ....16

II.

The Ninth Circuit’s Decision Is Wrong ............23

III. The Question Presented Is Important And

Warrants This Court’s Review In This Case ...31

TABLE OF CONTENTS—Continued

Page

CONCLUSION ..........................................................38

APPENDIX

Opinion of the United States Court of Appeals

for the Ninth Circuit, Port of Tacoma v.

Puget Soundkeeper, 104 F.4th 95 (9th Cir.

2024) ....................................................................1a

Order of the United States District Court of the

Western District of Washington Granting

Port of Tacoma Motion for Partial

Summary Judgment, Puget Soundkeeper

Alliance v. APM Terminals Tacoma, LLC,

No. C17-5016 BHS, 2020 WL 6445825

(W.D. Wash. Nov. 3, 2020) ...............................21a

Order of the United States District Court of the

Western District of Washington Granting

SSA Terminals, LLC, and SSA Terminals

(Tacoma), LLC, Motion for Summary

Judgment, Puget Soundkeeper Alliance v.

SSA Terminals, LLC, 561 F. Supp. 3d 1113

(W.D. Wash. 2021) ............................................48a

Order of the United States District Court of the

Western District of Washington Granting

Defendant’s Motion for Entry of Rule 54(b)

Judgment, Puget Soundkeeper Alliance v.

SSA Terminals, LLC, No. C17-5016 BHS,

2021 WL 4226162 (W.D. Wash. Sept. 16,

2021) ..................................................................70a

TABLE OF CONTENTS—Continued

Page

33 U.S.C. § 1342(a), (p) ...........................................76a

33 U.S.C. § 1365 ......................................................82a

40 C.F.R. § 123.1 .....................................................86a

vii

TABLE OF AUTHORITIES

Page(s)

CASES

Alliance For Environmental Renewal,

Inc. v. Pyramid Crossgates Co.,

436 F.3d 82 (2d Cir. 2006) ...................................17

Ardestani v. INS,

502 U.S. 129 (1991) ..............................................24

Arkansas v. Oklahoma,

503 U.S. 91 (1992) ..................................................4

Askins v. Ohio Department of

Agriculture,

809 F.3d 868 (6th Cir. 2016)................................28

Atlantic States Legal Foundation, Inc.

v. Eastman Kodak Co.,

12 F.3d 353 (2d Cir. 1993), cert.

denied, 513 U.S. 811 (1994) ........... 2, 13, 16, 17, 18

Cape Fear River Watch, Inc. v. Duke

Energy Progress, Inc.,

No. 7:13-cv-200, 2014 WL 10991530

(E.D.N.C. Aug. 1, 2014) .......................................34

Citizens’ Alliance for Property Rights v.

City of Duvall,

No. C12-1093RAJ, 2014 WL

1379575 (W.D. Wash. Apr. 8, 2014),

aff’d, 636 F. App’x 430 (9th Cir.

2016) .....................................................................20

City & County of San Francisco v. EPA,

144 S. Ct. 2578 (2024)..........................................31

viii

TABLE OF AUTHORITIES—Continued

Page(s)

County of Maui v. Hawaii Wildlife

Fund,

139 S. Ct. 196 (2019)............................................31

Covington v. Jefferson County,

358 F.3d 626 (9th Cir. 2004)................................26

Culbertson v. Coats American, Inc.,

913 F. Supp. 1572 (N.D. Ga. 1995) ...............21, 22

Decker v. Northwest Environmental

Defense Center,

567 U.S. 933 (2012) ..............................................31

Decker v. Northwest Environmental

Defense Center,

568 U.S. 597 (2013) ................................................5

DOT v. Association of American

Railroads,

575 U.S. 43 (2015) ................................................30

Florida Department of Revenue v.

Piccadilly Cafeterias, Inc.,

554 U.S. 33 (2008) ................................................24

Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), Inc.,

528 U.S. 167 (2000) ........................................30, 36

Garcia v. Cecos International, Inc.,

761 F.2d 76 (1st Cir. 1985) ..................................30

Gill v. LDI,

19 F. Supp. 2d 1188 (W.D. Wash.

1998) .....................................................................20

TABLE OF AUTHORITIES—Continued

Page(s)

Gwaltney of Smithfield, Ltd. v.

Chesapeake Bay Foundation, Inc.,

484 U.S. 49 (1987) .......................... 7, 27, 28, 30, 36

Harpeth River Watershed Association v.

City of Franklin,

No. 14-1743, 2016 WL 827584 (M.D.

Tenn. Mar. 3, 2016) .............................................22

International Paper Co. v. Ouellette,

479 U.S. 481 (1987) .................................. 24, 25, 27

Jones v. Hendrix,

599 U.S. 465 (2023) ..............................................27

Long Island Soundkeeper Fund, Inc. v.

New York City Department of

Environmental Protection,

27 F. Supp. 2d 380 (E.D.N.Y. 1998) ....................17

Loper Bright Enterprises v. Raimondo,

144 S. Ct. 2244 (2024)..........................................25

Los Angeles County Flood Control

District v. Natural Resources

Defense Council, Inc.,

567 U.S. 933 (2012) ..............................................31

Maryland Department of the

Environment v. Assateague Coastal

Trust,

299 A.3d 619 (Md. 2023) ......................................34

Mesa v. California,

489 U.S. 121 (1989) ..............................................29

TABLE OF AUTHORITIES—Continued

Page(s)

Middlesex County Sewerage Authority

v. National Sea Clammers

Association,

453 U.S. 1 (1981) ..................................................28

New Manchester Resort & Golf, LLC v.

Douglasville Development, LLC,

734 F. Supp. 2d 1326 (N.D. Ga.

2010) .....................................................................22

Northwest Environmental Advocates v.

City of Portland,

11 F.3d 900 (9th Cir. 1993)............................18, 19

Northwest Environmental Advocates v.

City of Portland,

56 F.3d 979 (9th Cir. 1995).......... 14, 18, 19, 20, 24

Northwest Environmental Advocates v.

City of Portland,

74 F.3d 945 (9th Cir. 1996)................ 15, 19, 20, 35

Ohio Valley Environmental Coalition,

Inc. v. Marfork Coal Co.,

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

2013) .....................................................................22

Ohio Valley Environmental Coalition v.

Fola Coal Co.,

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

Ohio Valley Environmental Coalition,

Inc. v. Fola Coal Co.,

No. 12-3750, 2013 WL 6709957

(S.D.W. Va. Dec. 19, 2013)...................................22

TABLE OF AUTHORITIES—Continued

Page(s)

Okanogan Highlands Alliance v. Crown

Resources Corp.,

544 F. Supp. 3d 1092 (E.D. Wash.

2021) .....................................................................34

Parker v. Scrap Metal Processors, Inc.,

386 F.3d 993 (11th Cir. 2004)..............................21

Parris v. 3M Co.,

595 F. Supp. 3d 1288 (N.D. Ga.

2022) .....................................................................22

Puget Soundkeeper Alliance v. APM

Terminals Tacoma, LLC,

No. C17-5016 BHS, 2018 WL

2560995 (W.D. Wash. June 4, 2018) ...................12

In re Reissuance of an NPDES/SDS

Permit to United States Steel Corp.,

954 N.W.2d 572 (Minn. 2021)..............................34

Romero v. International Terminal

Operating Co.,

358 U.S. 354 (1959) ..............................................30

Sackett v. EPA,

142 S. Ct. 896 (2022)............................................31

Sackett v. EPA,

598 U.S. 651 (2023) .................................... 7, 28, 35

Saint John’s Organic Farm v. Gem

County Mosquito Abatement District,

574 F.3d 1054 (9th Cir. 2009)..............................34

xii

TABLE OF AUTHORITIES—Continued

Page(s)

Solid Waste Agency of Northern Cook

County v. United States Army Corps

of Engineers,

531 U.S. 159 (2001) ..............................................31

Stephens v. Koch Foods, LLC,

667 F. Supp. 2d 768 (E.D. Tenn.

2009) .....................................................................23

United States Department of Energy v.

Ohio,

503 U.S. 607 (1992) ..............................................17

United States v. Recticel Foam Corp.,

858 F. Supp. 726 (E.D. Tenn. 1993) ....................26

United States ex rel. Polansky v.

Executive Health Resources, Inc.,

599 U.S. 419 (2023) ..............................................31

Verlinden B.V. v. Central Bank of

Nigeria,

461 U.S. 480 (1983) ..............................................29

Yadkin Riverkeeper, Inc. v. Duke

Energy Carolinas, LLC,

141 F. Supp. 3d 428 (M.D.N.C. 2015) .................34

Yates v. United States,

574 U.S. 528 (2015) ..............................................25

CONSTITUTIONAL, STATUTORY AND

REGULATORY PROVISIONS

U.S. Const. art. III, § 2, cl. 1 .....................................29

xiii

TABLE OF AUTHORITIES—Continued

Page(s)

28 U.S.C. § 1254(1)......................................................1

33 U.S.C. § 1251(b).......................................... 4, 28, 35

33 U.S.C. § 1311(a)......................................................4

33 U.S.C. § 1311(b)....................................................18

33 U.S.C. § 1319(a)(3) ...........................................6, 25

33 U.S.C. § 1319(d)......................................................7

33 U.S.C. § 1342 ....................................................5, 24

33 U.S.C. § 1342(a)(2) .................................................5

33 U.S.C. § 1342(b)..................................................6, 7

33 U.S.C. § 1342(p)(1) .................................................5

33 U.S.C. § 1342(p)(2)(B) ............................................5

33 U.S.C. § 1362(12) ....................................................4

33 U.S.C. § 1365 ..........................................................2

33 U.S.C. § 1365(a)................................................7, 23

33 U.S.C. § 1365(a)(1) .................................................6

33 U.S.C. § 1365(d)................................................7, 34

33 U.S.C. § 1365(f) ................................................6, 24

33 U.S.C. § 1365(f)(1)-(7) ..........................................25

42 U.S.C. § 6901 et seq. .............................................26

xiv

TABLE OF AUTHORITIES—Continued

Page(s)

Wash. Rev. Code § 90.48.260 ......................................7

40 C.F.R. § 122.26(a)(1)(ii) ........................................14

40 C.F.R. § 122.26(b)(14) ........................................5, 6

40 C.F.R. § 122.26(b)(14)(i)-(xi) ..................................5

40 C.F.R. § 122.26(b)(14)(viii) .................................6, 8

40 C.F.R. § 122.46(a) ...................................................8

40 C.F.R. § 123.1 .......................................................26

40 C.F.R. § 123.1(d)(1) ................................................7

40 C.F.R. § 123.1(i)(2) ..................................... 2, 17, 26

40 C.F.R. § 271.1 .......................................................26

Wash. Admin. Code § 173-226-010 .............................8

Wash. Admin. Code § 173-226-070 .............................8

OTHER AUTHORITIES

73 Fed. Reg. 70418 (Nov. 20, 2008) ..........................26

Charles S. Abell, Ignoring the Trees for

the Forests: How the Citizen Suit

Provision of the Clean Water Act

Violates the Constitution’s

Separation of Powers Principle, 81

Va. L. Rev. 1957 (1995)........................................30

TABLE OF AUTHORITIES—Continued

Page(s)

David Adelman & Robert Glicksman,

Reevaluating Environmental Citizen

Suits in Theory and Practice, 91

Colo. L. Rev. 386 (2020) .......................................36

Jonathan H. Adler, Stand or Deliver:

Citizen Suits, Standing, and

Environmental Protection, 12 Duke

Env’t L. & Pol’y F. 39 (2001) ...............................32

The American Heritage Dictionary

(1978) ....................................................................24

Frank B. Cross, Rethinking

Environmental Citizen Suits, 8

Temp. Env’t L. & Tech. J. 55 (1989,

Westlaw)...............................................................35

2A Env’t Law Practice Guide (2024) ........................21

Roger Hanshaw, State Courts vs.

Federal Courts: Jurisdictional

Battles over State Water Quality

Standards, 31 Nat. Res. & Env’t 12

(2016) ....................................................................20

Rick W. Jarvis, A City Attorney’s

Citizens’ Suit Survival Guide,

League of California Cities (May

1996), https://www.cacities.org/

UploadedFiles/LeagueInternet/

2a/2a7c5332-7aef-4598-9218c60b795f8119.pdf .................................................32

xvi

TABLE OF AUTHORITIES—Continued

Page(s)

Susan A. Macmanus, The Impact of

Litigation on Municipalities: Total

Cost, Driving Factors, and Cost

Containment Mechanisms, 44

Syracuse L. Rev. 833 (1993) ................................35

1 Linda A. Malone, Env’t Reg. of Land

Use (2024) ............................................................21

James R. May, The Availability of State

Environmental Citizen Suits, 18SPG Nat. Res. & Env’t 53 (2004,

Westlaw)...............................................................35

Memorandum from William A.

Sullivan, Jr., EPA Enforcement of

RCRA-Authorized State Hazardous

Waste Laws and Regulation,

Directive No. 9541.01-82x (Mar. 15,

1982), https://rcrapublic.epa.gov/

files/12046.pdf ......................................................26

Puget Soundkeeper, Clean Water Act

Lawsuits,

https://pugetsoundkeeper.org/

strategy-citizen-lawsuits/ (last

visited Sept. 18, 2024) ...................................33, 37

Marc Robertson, Environmental

Ambulance Chasing: DOJ Urges

Court To Scrutinize Clean Water

Citizen-Suit Settlements, Forbes

(June 26, 2018).....................................................36

xvii

TABLE OF AUTHORITIES—Continued

Page(s)

S. Rep. No. 92-414 (1971), 1971 WL

11307 ......................................................................7

U.S. Gov’t Accountability Off., Clean

Water Act: EPA Needs to Better

Assess and Disclose Quality of

Compliance and Enforcement Data

(July 2021), https://www.gao.gov/

assets/gao-21-290.pdf...........................................33

PETITION FOR A WRIT OF CERTIORARI

Petitioners Port of Tacoma; SSA Terminals, LLC;

and SSA Terminals (Tacoma), LLC, respectfully

petition this Court for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS AND ORDERS BELOW

The opinion of the court of appeals (App.1a-20a) is

reported at 104 F.4th 95. The opinion of the district

court granting SSA Terminals, LLC, and SSA

Terminals (Tacoma), LLC’s motion for summary

judgment (App.48a-69a) is reported at 561 F. Supp.

3d 1113. The opinion of the district court granting the

Port of Tacoma’s motion for partial summary

judgment (App.21a-47a) is available at 2020 WL

6445825. The district court’s order entering Rule

54(b) judgment (App.70a-75a) is available at 2021 WL

4226162.

JURISDICTION

The court of appeals entered its judgment on

June 10, 2024. On September 3, 2024, Justice Kagan

extended the time to file a petition for a writ of

certiorari to September 25, 2024. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY AND REGULATORY

PROVISIONS INVOLVED

Relevant statutory and regulatory provisions are

reproduced in the petition appendix. App.76a-89a.

INTRODUCTION

This case presents a fundamental question about

the reach of the citizen-enforcement provision of the

Clean Water Act (“CWA”), 33 U.S.C. § 1365 (“Section

505”). The decision below reaffirmed the Ninth

Circuit’s position that Section 505 authorizes citizens

to bring federal lawsuits that seek to enforce state-law

water-pollution requirements that “mandate ‘a

greater scope of coverage than that required’ by” the

CWA. App.12a-13a. According to the Ninth Circuit,

private citizens can enforce in federal court any

condition of a state-issued pollutant-discharge

permit—including conditions authorized by state law

that go beyond the CWA—as long as some portion of

that permit implements the federal National

Pollutant Discharge Elimination System (“NPDES”)

program.

The Ninth Circuit’s expansive rule on citizen-suit

standing demands this Court’s review. As the Ninth

Circuit itself acknowledged, this rule “directly

conflicts” with the Second Circuit’s decision in

Atlantic States Legal Foundation, Inc. v. Eastman

Kodak Co., 12 F.3d 353 (2d Cir. 1993), cert. denied,

513 U.S. 811 (1994). App.13a (citation omitted). In

Atlantic States, the Second Circuit held that “state

regulations, including the provisions of [state-issued

pollutant-discharge] permits, which mandate ‘a

greater scope of coverage than that required’ by the

federal [Act] and its implementing regulations are not

enforceable through a citizen suit.” 12 F.3d at 359

(quoting 40 C.F.R. § 123.1(i)(2)) (emphasis added).

The Ninth Circuit below held the exact opposite—

while acknowledging the conflict. App.13a.

The Ninth Circuit’s rule also is plainly mistaken:

It distorts the CWA’s statutory language, ignores

EPA’s stated limits on the reach of the CWA, produces

several significant and anomalous consequences, and

raises serious constitutional concerns. As Judge

O’Scannlain observed below, the Ninth Circuit’s

position “expand[s] citizen standing in a way

Congress never intended.”

App.18a (specially

concurring). As this case shows, that expansion

eviscerates Congress’ careful drafting of the CWA by

illogically allowing private citizens to enforce in

federal court permit conditions regulating activities

Congress expressly exempted from the CWA’s scope.

The issue is unquestionably important. There are

hundreds of thousands of permits issued under the

NPDES program, many of which combine expansive

state-imposed water-pollution conditions with federal

CWA requirements. As Judge O’Scannlain observed,

the Ninth Circuit’s ruling below paves the way for

costly and unpredictable federal citizen litigation.

App.19a-20a. Because of the CWA’s strict-liability

scheme and attorney’s fees and penalty provisions,

such litigation can impose massive costs on its

targets, including municipalities and other local

government entities, based on even minor violations

of state-authorized permit conditions that go far

beyond the federal requirements.

The Ninth Circuit’s rule also impedes the

sovereign ability of States to decide how to enforce

their own laws, placing authority over such matters

in the hands of a virtually limitless—and entirely

unaccountable—force of private litigants, who lack

the traditional political checks on prosecutorial

actions. This case is just one example. Recognizing

the challenges of compliance with its increasingly

complex water laws, Washington—like many

States—has decided not to allow private actions to

enforce violations of its water-pollution requirements.

Yet, under the Ninth Circuit’s rule, citizen groups like

respondent can override Washington’s enforcement

choices, pursuing even minor violations of its widereaching permits. These private enforcement actions

not only burden the federal judicial system, but also

divert attention and taxpayer resources from local

government programs, including those addressing

more pressing environmental issues.

This Court’s review is warranted to resolve the

acknowledged circuit split over this critical question

and ensure that the CWA’s citizen-suit provision

serves its proper, and properly limited, role.

STATEMENT OF THE CASE

A. The Clean Water Act

1. Enacted in 1972, the CWA establishes a

regulatory framework that honors our federal

structure by dividing the authority to regulate water

pollution between the Federal Government and the

States. See Arkansas v. Oklahoma, 503 U.S. 91, 101

(1992). By its own terms, the CWA aims to “protect

the primary responsibilities and rights of States to

prevent, reduce, and eliminate pollution, [and] to plan

the development and use … of land and water

resources,” 33 U.S.C. § 1251(b), while also providing

for direct federal oversight when necessary.

That federal oversight is found principally in the

Act’s prohibition of most discharges of “pollutants”

from “point sources” to “navigable waters.” Id.

§§ 1311(a), 1362(12). Nonexempt discharges from

point sources to navigable waters require a permit,

typically from the EPA or a State with delegated

authority. These permits, known as NPDES permits,

are issued under Section 402 of the CWA. See id.

§ 1342. NPDES permits translate the CWA’s general

requirements into specific limitations on the types

and amounts of pollutants a point source can

discharge, and can include monitoring and reporting

requirements to ensure compliance. Id. § 1342(a)(2).

As originally enacted, the CWA regulated

virtually all discharges from point sources into

navigable waters, including stormwater discharges—

rainwater that flows over the ground surface instead

of being absorbed. But in 1987, Congress amended

the Act to exempt “most ‘discharges composed entirely

of stormwater.’” Decker v. Northwest Env’t Def. Ctr.,

568 U.S. 597, 603-04 (2013) (quoting 33 U.S.C.

§ 1342(p)(1)). Congress decided that only certain

categories of stormwater discharges require an

NPDES permit, including discharges “associated with

industrial activity.” 33 U.S.C. § 1342(p)(2)(B).

Congress directed EPA to define stormwater

discharges “associated with industrial activity.”

Decker, 568 U.S. at 603-04 (citation omitted). In

response, EPA defined the term to encompass

discharges from “any conveyance that is used for

collecting and conveying storm water and that is

directly related to manufacturing, processing or raw

materials storage areas at an industrial plant.” 40

C.F.R. § 122.26(b)(14).

EPA specified eleven

categories of facilities meeting those requirements,

including transportation facilities with “vehicle

maintenance shops, equipment cleaning operations,

or airport deicing operations.” Id. § 122.26(b)(14)(i)(xi).

EPA was equally clear that the CWA’s “associated

with industrial activity” term “excludes areas located

on plant lands separate from the plant’s industrial

activities, … as long as the drainage from the

excluded areas is not mixed with storm water drained

from” an industrial-activity area. Id. § 122.26(b)(14).

So, for transportation facilities with “vehicle

maintenance shops, equipment cleaning operations,

or airport deicing operations,” “[o]nly those portions

of the facility that are either involved in vehicle

maintenance … , equipment cleaning operations,

airport deicing operations, or which are otherwise

identified under paragraphs (b)(14)(i)-(vii) or (ix)-(xi)

of this section are associated with industrial activity.”

Id. § 122.26(b)(14)(viii). Stormwater drainage from

areas where marine ports do not conduct such

activities—such as parking lots, docks, and wharfs—

are therefore not subject to the federal requirements

for industrial-stormwater discharges.

2. The CWA authorizes enforcement actions by

federal and state regulators. 33 U.S.C. § 1342(b);

see id. § 1319(a)(3) (authorizing EPA to enforce

“condition[s] or limitation[s] … in a permit issued

under section 1342 of this title”). It also contains a

citizen-suit provision authorizing private citizens to

sue in federal court to enforce “an effluent standard

or limitation under [the CWA]” or “an order issued by

[EPA] or a State with respect to such a standard.” Id.

§ 1365(a)(1). Congress defined “effluent standard or

limitation” to include “a permit or condition of a

permit issued under section 1342 of this title that is

in effect under this chapter.” Id. § 1365(f).

Congress intended citizens to play a limited role in

enforcing the CWA. As this Court has recognized,

“[t]he Senate Report [accompanying the bill including

Section 505] noted that ‘[t]he Committee intends the

great volume of enforcement actions [to] be brought

by the State,’ and that citizen suits are proper only

‘if the Federal, State, and local agencies fail to

exercise their enforcement responsibility.’” Gwaltney

of Smithfield, Ltd. v. Chesapeake Bay Found., Inc.,

484 U.S. 49, 60 (1987) (quoting S. Rep. No. 92-414, at

64 (1971), 1971 WL 11307). In other words, the

citizen suit was intended to “supplement rather than

to supplant governmental action.” Id.

The CWA’s citizen-suit provision is nevertheless a

potent weapon. Any citizen may invoke it to allege

ongoing violations of the CWA where administrative

authorities have declined to bring suit, in order to

seek injunctive relief as well as civil penalties payable

to the U.S. Treasury. 33 U.S.C. §§ 1319(d), 1365(a).

As this Court has recognized, those penalties—

assessed on a per-day, per-violation basis, even for

completely inadvertent violations—can be “crushing.”

Sackett v. EPA, 598 U.S. 651, 660 (2023). Citizens can

also recover attorney’s fees, expert witness fees, and

other litigation costs. 33 U.S.C. § 1365(d).

B. Washington’s

Industrial

Stormwater

General Permit

The CWA charges EPA with issuing NPDES

permits in the first instance, but most States—

including the State of Washington—are authorized by

EPA to issue NPDES permits themselves. 33 U.S.C.

§ 1342(b); 40 C.F.R. § 123.1(d)(1); Wash. Rev. Code

§ 90.48.260. Exercising its delegated authority, the

State of Washington regulates specific discharge

categories through “general water quality permits”

issued by the Washington State Department of

Ecology (“Ecology”) that apply to categories of

facilities or industries. 2-PortSER-234. Most of these

general permits combine the federal CWA

requirements with Washington’s expansive state-law

conditions on the release of stormwater or waste

materials into ground and surface waters. See Wash.

Admin. Code § 173-226-070.

At issue here are the 2010 and 2015 versions of the

Washington Industrial Stormwater General Permit

(“ISGP”), which regulates stormwater discharges

from industrial facilities.1 The ISGP is a combined

permit “designed to satisfy” both “the requirements

for discharge permits under [the CWA] and the state

law governing water pollution control.” Id. § 173-226010. Indeed, the ISGP expressly states that it is both

an “[NPDES] and State Waste Discharge General

Permit” issued “[i]n compliance with the provisions of

The State of Washington Water Pollution Control

Law … and [t]he [CWA].” App.27a.

The ISGP’s scope is staggering. The 2015 version

stretches nearly 70 pages, demanding adherence

to detailed manuals that span hundreds more. 5-ER965–1033.

Through this far-reaching permit,

Washington exerts control over more than 1,200

different facilities. 2-PortSER-265.

Beginning in 2010, Ecology omitted from its ISGP

the terms of the federal regulations confining

regulation of industrial stormwater to “[o]nly those

portions of a [transportation] facility” where vehicle

maintenance, equipment cleaning, airport deicing,

or other activities specifically defined as

industrial take place. App.5a (quoting 40 C.F.R.

§ 122.26(b)(14)(viii)). At the time, however, Ecology

told permittees that the ISGP would apply only to the

portions of transportation facilities “where vehicle

The ISGP is reissued every five years. See 40 C.F.R.

§ 122.46(a).

and equipment maintenance or equipment cleaning

occurs.” 2-PortSER-358; see 2-PortSER-346–358.

After the deadline to challenge Ecology’s 2010

ISGP passed, Ecology notified two ports that they

needed to expand ISGP compliance to encompass all

port property. App.31a. The ports responded that the

implications of such interpretation would be

“extreme,” explaining that expanding the ISGP’s

scope would have “major ramifications on a port’s

ability to comply” and would “require substantial

efforts and expenditures.” Id.; 4-ER-743.

For example, the ISGP mandates stormwater

runoff sampling and corrective actions such as the

installation of rainfall collection and treatment

systems. 5-ER-988–991, 1005–008. These measures

are infeasible for overwater structures such as docks

or wharfs that support electrified crane operations, as

they are intentionally designed to avoid water

collection for safety reasons.

Notably, federal

regulations contain no similar requirements for

stormwater discharges from docks, wharfs, railroad

lines, and other areas used solely for transportation.

Ecology nonetheless instructed ports that they

needed to take the necessary—and costly—steps to

implement the ISGP’s requirements “as soon as

possible” on “all areas of industrial activity.”

App.31a-32a. But Ecology stated that it would

exercise its “enforcement discretion” to allow time to

comply with those requirements. Id.

C. West Sitcum Terminal Wharf

The Port of Tacoma—one of the largest container

ports in the U.S.—is a deepwater port located on

Commencement Bay in south Puget Sound,

Washington. It is a publicly owned and operated

facility. 4-ER-738. Through The Northwest Seaport

Alliance, a marine cargo operating partnership of the

Tacoma and Seattle ports, the Port of Tacoma’s

customers move goods across the world. 4-ER-771–

72.

The West Sitcum Terminal (the “Terminal”) is a

137-acre marine cargo terminal at the Port of Tacoma,

leased and operated by SSA Terminals (Tacoma),

LLC—a privately owned company that provides

stevedoring and marine terminal services. App.3a.

“The Wharf” is a 12.6-acre overwater portion of the

Terminal used only for loading and unloading cargo

containers. Id. No vehicle maintenance, equipment

cleaning, or airport deicing occurs at the Wharf. Id.

The Wharf is graded to avoid receiving stormwater

flows from other portions of the Terminal. 4-ER-772.

The following picture shows the Wharf in yellow,

along with the surrounding area (see App.50a):

The 2010 and 2015 ISGPs authorized stormwater

discharges from the Terminal. Because the Wharf is

used only to load and unload containers and does not

receive discharges from portions of the Terminal

defined by EPA as “associated with industrial

activity,” discharges from the Wharf are exempted

from federal industrial-stormwater requirements.

App.4a. But the Ninth Circuit concluded below that

such runoff does fall within the state-law-derived

provisions of Washington’s expanded ISGP. App.8a11a.

Accordingly, under the Ninth Circuit’s

interpretation of the combined permit, areas like the

Wharf must meet the State’s requirements for

industrial-stormwater

discharges—even

though

stormwater runoff from the Wharf is exempt from

such requirements under the CWA.

D. Proceedings Below

1. In January 2017, Puget Soundkeeper Alliance

(“Soundkeeper”) initiated this CWA citizen suit

against APM Terminals Tacoma, LLC (“APMT”), the

then-tenant of the West Sitcum Terminal. App.51a.

Among other claims, Soundkeeper contended that

APMT violated the 2010 and 2015 ISGPs by failing to

apply “all known, available, and reasonable methods

of prevention, control and treatment” of pollutants.

Puget Soundkeeper All. v. APM Terminals Tacoma,

LLC, No. C17-5016 BHS, 2018 WL 2560995, at *1

(W.D. Wash. June 4, 2018).

After APMT terminated its operations and SSA

Terminals (Tacoma), LLC, took over as the Terminal’s

tenant, Soundkeeper added the Port and SSA2 as

“SSA” refers collectively to petitioners SSA Terminals,

LLC, and SSA Terminals (Tacoma), LLC.

defendants, alleging (among other claims) that the

Port and SSA failed to comply with ISGP

requirements on the Wharf—even though no

industrial activities as defined by EPA’s regulations

take place there. App.51a; supra at 10.

As relevant here, the Port and SSA moved for

summary judgment on Soundkeeper’s claims related

to stormwater discharges from the Wharf. They first

argued that the plain language of the ISGP does not

cover discharges from the Wharf. 3-SSA_SER-773;

4-ER-706–11. But they added that, “[e]ven if Ecology

exercised state authority to extend the ISGP to all

portions of a transportation facility,” such broader

coverage “is not federally enforceable” by private

citizens because “stormwater discharges from the

Wharf are exempted from the federal NPDES

program by Congress and the EPA.” 4-ER-801; see

also 3-SSA_SER-771–73. As the Port and SSA

explained, the CWA’s citizen-suit provision does not

authorize suits purporting to enforce state-law

conditions of state-issued permits that mandate a

greater scope of coverage than the CWA. 4-ER-791–

802 (citing Atlantic States, 12 F.3d at 359).

The district court held that the plain terms of the

ISGP do not cover the entire footprint of industrial

facilities and thus do not cover discharges from the

Wharf. App.43a-45a, 65a-66a. The court accordingly

did not reach the alternative argument that, to the

extent the ISGP extended such coverage as a matter

of state law, that expanded scope of coverage could not

be enforced in a CWA citizen suit.

2. The Ninth Circuit reversed. App.1a-20a. The

court disagreed with the district court’s reading of the

2010 and 2015 ISGPs, concluding that those permits

imposed conditions on stormwater discharges from

the entire footprint of the Terminal, including the

Wharf. App.8a-11a. The court acknowledged that,

“[i]n this respect, the ISGPs differ from the federal

regulations”—acknowledging that, “[u]nder the

ISGPs, coverage is triggered … when the facility

conducts industrial activity, not when a particular

discharge is ‘associated with industrial activity.’”

App.8a (quoting 40 C.F.R. § 122.26(a)(1)(ii)).

The court then rejected the Port and SSA’s

alternative argument that ISGP conditions

regulating discharges from the Wharf are not

enforceable in a CWA citizen-suit action “because

they exceed the requirements of the federal

regulations.”

App.11a.

Citing Ninth Circuit

precedent, the court held that “all permit conditions”

are enforceable in a CWA citizen suit, App.12a

(quoting Northwest Env’t Advocs. v. City of Portland,

56 F.3d 979, 986 (9th Cir. 1995) (“NWEA II”))—even

if a condition was adopted pursuant to state law and

“prescribe[s] ‘a greater scope of coverage’ than the

federal regulations,” App.12a-13a.

The court

acknowledged that this precedent “directly conflicts

with the Second Circuit’s decision in Atlantic States,”

but stated it was “bound to follow the former.”

App.13a (citation omitted).

Judge O’Scannlain specially concurred. While

acknowledging that the panel opinion “faithfully

follows Ninth Circuit precedent,” Judge O’Scannlain

emphasized that such precedent “created a circuit

split” that remains and is a “source of ongoing

confusion to parties, such as the Port of Tacoma,” that

have invoked the Second Circuit precedent. App.18a19a. Echoing the concerns in an earlier dissent from

the Ninth Circuit’s refusal to rehear NWEA II en

banc, he further explained that the Ninth Circuit’s

position “continues to expand citizen standing in a

way Congress never intended.”

Id. (discussing

Northwest Env’t Advocs. v. City of Portland, 74 F.3d

945, 946 (9th Cir. 1996) (“NWEA III”) (O’Scannlain,

J., joined by Hall, T.G. Nelson, and Kleinfeld, JJ.,

dissenting from denial of rehearing en banc)).

Judge O’Scannlain explained that the Ninth

Circuit’s rule not only “upset[s] the delicate balance

envisioned by Congress in its promulgation of the

current enforcement regime for environmental law,”

but

also

invites

“excessive,

costly,

and

counterproductive citizen suits, funded by the

taxpayers, for the enforcement of standards that are

imprecise and astronomically costly to the

municipalities affected.” App.20a (citation omitted).

REASONS FOR GRANTING THE WRIT

This petition readily satisfies all the traditional

criteria for certiorari. First, as the Ninth Circuit

acknowledged, its decision has entrenched a direct

circuit conflict. Second, the Ninth Circuit’s position is

wrong. Text, context, and constitutional principles all

make clear that the CWA’s citizen-suit provision does

not authorize private citizens to bring actions in

federal court to enforce state-law permit conditions

that mandate a greater scope of coverage than

required by federal law. And, third, the question

presented is undeniably important.

The Ninth

Circuit’s decision upsets the delicate balance of state

and federal authority over water-quality matters,

hands enforcement decisions over to private interest

groups or individuals lacking political checks against

prosecutorial abuse, and invites excessive and costly

regulatory litigation. Certiorari is thus warranted.

I. The

Decision

Below

Cements

Acknowledged Circuit Conflict Over The

Scope Of The CWA’s Citizen-Suit Provision

The Ninth Circuit’s decision reaffirms an

entrenched circuit split over whether citizens can

enforce in federal court conditions authorized by state

law that go beyond the scope of the CWA.

1. As both the panel opinion and special

concurrence acknowledged below, the Ninth Circuit’s

decision “directly conflicts with” the Second Circuit’s

ruling in Atlantic States Legal Foundation, Inc. v.

Eastman Kodak Co., 12 F.3d 353 (2d Cir. 1993).

App.13a; App.19a (O’Scannlain, J., specially

concurring). In Atlantic States, the Second Circuit

held that federal courts lack jurisdiction over citizenenforcement actions alleging violations of permit

conditions authorized by state law that go beyond the

requirements of the CWA. See 12 F.3d at 358-60.

That holding is irreconcilable with the decision below.

The facts of Atlantic States closely resemble those

here.

There, an environmental advocacy group

claimed that Kodak violated a state-issued pollutantdischarge permit that—like the ISGP—was “devised

to implement both the [CWA] and [state] law.” Id. at

355. The group alleged that Kodak breached a permit

condition adopted “pursuant to” New York law, which

allegedly prohibited “the discharge of any pollutant”

not specifically listed. Id. at 359. The Second Circuit

rejected the suit, concluding that, “even if Atlantic

States is right about New York law” and the

interpretation of Kodak’s state-issued permit, the

action would still fail “because New York would be

implementing a regulatory scheme broader than

the CWA, … and such broader state schemes are

unenforceable through … citizen suits.” Id. at 359-60.

For support, the Second Circuit quoted an EPA

regulation specifying that, “[i]f an approved State

[NPDES] program has greater scope of coverage than

required by Federal law[,] the additional coverage is

not part of the Federally approved program.”

40 C.F.R. § 123.1(i)(2). It also relied on United States

Department of Energy v. Ohio, which held that

“penalties prescribed by state statutes” for violations

of the CWA do not “arise under federal law” for

purposes of waiving the United States’s sovereign

immunity from liability for citizen suits. 503 U.S.

607, 624-26 (1992). While “States may enact stricter

standards for wastewater effluents than mandated by

the CWA and federal EPA regulations,” the Second

Circuit explained, “private citizens have no standing”

to enforce those standards in federal court under

Section 505 of the CWA. Atlantic States, 12 F.3d at

357-58.

As Judge O’Scannlain recognized, “[t]his circuit

split remains, as the Second Circuit has never

reversed itself.” App.19a. Accordingly, district courts

within the Second Circuit continue to apply Atlantic

States to dismiss citizen suits that, like

Soundkeeper’s here, seek to enforce permit conditions

broader in scope than the CWA’s requirements.3

2. The Ninth Circuit’s decision below squarely

conflicts with Atlantic States. The court held that

Soundkeeper may enforce “all [ISGP] conditions” in

See, e.g., Alliance For Env’t Renewal, Inc. v. Pyramid

Crossgates Co., 436 F.3d 82, 84-85 (2d Cir. 2006); Long Island

Soundkeeper Fund, Inc. v. New York City Dep’t of Env’t Prot., 27

F. Supp. 2d 380, 386 (E.D.N.Y. 1998).

federal court, including those adopted under statelaw authority that “prescribe ‘a greater scope of

coverage’” than the CWA. App.12a-13a. That is the

exact opposite of what Atlantic States held—that

citizens lack standing under the CWA to enforce

state-law conditions that go beyond the CWA’s

requirements. See 12 F.3d at 358-60. Moreover, in

reaching this holding, the Ninth Circuit reaffirmed its

earlier ruling in NWEA II, which the panel and

concurring opinions below both explicitly recognized

had created a “circuit split” with, and “directly

conflicts” with, Atlantic States. App.13a, 18a-19a.

NWEA II involved a citizen suit brought against

the City of Portland to enforce Oregon’s generic

water-quality standards, which were incorporated

into Portland’s NPDES permit. 56 F.3d at 982. The

CWA does not require permittees to comply with such

standards; rather, it instructs States to use their

water-quality

standards

set

“effluent

limitations”—specific restrictions on the amount of

pollutants that can be discharged—and to incorporate

those limitations into NPDES permits. 33 U.S.C.

§ 1311(b). Portland thus argued that the court lacked

jurisdiction over the citizen group’s claims because

they were based on state-law standards that went

beyond the scope of the CWA. 56 F.3d at 986-90.

Initially, the Ninth Circuit panel agreed. In an

opinion by Judge Ingram (a district judge sitting by

designation), the majority highlighted the absence of

“a single case in which a court held that citizen suits

could be used to enforce [state] water quality

standards” in federal court. Northwest Env’t Advocs.

v. City of Portland, 11 F.3d 900, 907-11 (9th Cir.

1993). The majority concluded that such standards

should be enforced “in the state courts,” not “by way

of a citizen suit” in federal court. Id. at 911.

Judge Pregerson dissented from that ruling. But

then, the panel granted rehearing and adopted Judge

Pregerson’s position in another divided ruling. In the

revised opinion—authored by Judge Pregerson and

joined by Judge Ingram—the majority concluded that

the citizen-suit provision “authorizes citizens to

enforce all permit conditions” in federal court. NWEA

II, 56 F.3d at 985-90. In so holding, the new majority

leaned heavily on the CWA’s legislative history,

claiming it reflected a concern “about nonenforcement” and an intent to “grant broad authority

for citizen enforcement.” Id. at 986-87. Thus,

according to the majority, the CWA’s citizen-suit

provision allows citizens to enforce permit conditions

based on state standards that “regulate discharges

outside the scope of the [CWA].” Id. at 988-89.

Judge Kleinfeld dissented. He argued that state

water-quality

standards,

while

useful

for

“government enforcement authorities (who decided

not to prosecute this case against the City of

Portland),” are “too uncertain and amorphous” to be

implemented by private citizens and federal courts.

Id. at 992. He emphasized that “citizens’ suits may

produce too much of a good thing with regard to

enforcement,” particularly because the “burdens” on

courts and regulated parties often outweigh the

“improvement” in water quality. Id. at 992-93. He

further warned that “[i]f the private advocacy group”

which brought the action prevailed, it would extract

“a great deal of money from the citizens of Portland.”

Id. at 992.

The full Ninth Circuit declined to rehear the case

en banc, with four judges dissenting. NWEA III,

74 F.3d at 946. In an opinion by Judge O’Scannlain,

the dissenters argued that the panel opinion

“significantly reshaped federal environmental law,”

contravened “the plain language of the [CWA],”

“upset the delicate balance envisioned by Congress in

its promulgation of the current enforcement regime

for environmental law,” sanctioned costly federal

suits “at government expense,” imposed potentially

“astronomical[]” costs to municipalities, and created a

circuit split with the Second Circuit. Id.

As Judge O’Scannlain recognized below, “[t]his

circuit split remains.” App.19a. And it is widely

recognized. For example, multiple district courts

within the Ninth Circuit have acknowledged the

conflict between NWEA II and Atlantic States.4 And

practitioners and practice guides have highlighted it

as well. See, e.g., Roger Hanshaw, State Courts vs.

Federal Courts: Jurisdictional Battles over State

Water Quality Standards, 31 Nat. Res. & Env’t 12, 14

(2016) (“Until the Supreme Court advises the

environmental legal community otherwise, Atlantic

States will remain a consideration that every citizen

suit litigant must address when assessing whether

federal jurisdiction exists over an alleged claim under

See, e.g., Citizens’ All. for Prop. Rts. v. City of Duvall,

No. C12-1093RAJ, 2014 WL 1379575, at *2 (W.D. Wash. Apr. 8,

2014) (“Although some courts disagree, the Ninth Circuit has

held that citizens may enforce ‘permit conditions based on both

EPA-promulgated effluent limitations and state-established

standards.’” (quoting NWEA II, 56 F.3d at 988 and citing

Atlantic States)), aff’d, 636 F. App’x 430 (9th Cir. 2016); Gill v.

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

that the Ninth Circuit’s rule in NWEA II conflicts with the

Second Circuit’s from Atlantic States).

the [CWA].”).5 This acknowledged circuit conflict

alone warrants this Court’s review.

3. But the split runs deeper than simply the

Second and Ninth Circuits. The Fourth and Eleventh

Circuits, as well as district courts across the country,

have sided with the Ninth Circuit and observed that

citizens can enforce any condition in a state-issued

pollutant-discharge permit—without limitation.

Oftentimes, these courts have acknowledged that

their positions conflict with Atlantic States.

In Parker v. Scrap Metal Processors, Inc., for

example, the Eleventh Circuit expressly rejected the

reasoning of Atlantic States in concluding that

citizens could enforce any “state law standard[]”

embedded in Georgia’s General Storm Water Permits.

386 F.3d 993, 1005-06 (11th Cir. 2004). The Eleventh

Circuit drew on Culbertson v. Coats American, Inc.,

913 F. Supp. 1572 (N.D. Ga. 1995), which explicitly

held that the CWA “authorizes citizen suits for the

enforcement of all conditions of [state-issued

pollutant-discharge] permits,” including those

mandating compliance with all state water laws.

Parker, 386 F.3d at 1008 (emphasis added) (quoting

Culbertson, 913 F. Supp. at 1581).

Post-Parker, district courts within the Eleventh

Circuit have sanctioned citizen suits based on permit

conditions adopted under state law that extend

See also 2A Env’t Law Practice Guide § 12A.04 (2024)

(explaining that NWEA II “rejected th[e] view” from Atlantic

States that permit conditions issued under the authority of state

law are not enforceable in federal court); 1 Linda A. Malone,

Env’t Reg. of Land Use § 8:11 n.36 (2024) (discussing the

conflicting holdings in Atlantic States and NWEA II, and listing

these two cases among the four “significant cases” that “have

addressed the scope of citizen suits under” the CWA).

beyond the CWA’s scope. See, e.g., New Manchester

Resort & Golf, LLC v. Douglasville Dev., LLC, 734 F.

Supp. 2d 1326, 1337-39 (N.D. Ga. 2010) (citing NWEA

II and Parker in sanctioning a citizen suit based on

“Georgia’s in-stream water quality standards,” which

govern discharges to artificial and subsurface

waters); Parris v. 3M Co., 595 F. Supp. 3d 1288, 1324

(N.D. Ga. 2022) (citizen suit alleging violations of

town’s sewer-use ordinance and State’s water-quality

laws incorporated into a permit).

The Fourth Circuit has likewise held that a permit

holder “must comply with all the terms of its permit”

to avoid citizen suits, including state regulations

“incorporated in” a permit that govern issues other

than the discharge of CWA-regulated pollutants.

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

134-36, 143 (4th Cir. 2017). And district courts within

the Fourth Circuit have followed suit, with many

expressly rejecting Atlantic States’s reasoning along

the way. See, e.g., Ohio Valley Env’t Coal., Inc. v. Fola

Coal Co., No. 12-3750, 2013 WL 6709957, at *18

(S.D.W. Va. Dec. 19, 2013) (“reject[ing] [the]

reasoning” of Atlantic States and holding that citizens

can enforce in federal court all “state law standards”

incorporated into a permit); Ohio Valley Env’t Coal.,

Inc. v. Marfork Coal Co., 966 F. Supp. 2d 667, 684-85

(S.D.W. Va. 2013) (holding that citizens can enforce

state-law water-quality standards, even those

pertaining to pollutants for which a permit “did not

establish specific permit effluent limitations”).

Finally, district courts in other circuits have also

blessed citizen suits enforcing state-authorized

permit conditions beyond the scope of CWA’s

requirements, usually acknowledging that doing so

conflicts with Atlantic States. See, e.g., Harpeth River

Watershed Ass’n v. City of Franklin, No. 14-1743,

2016 WL 827584, at *3 (M.D. Tenn. Mar. 3, 2016)

(disagreeing with Atlantic States and refusing to

consider whether permit conditions adopted under

state-law authority were “beyond the scope” of the

CWA); Stephens v. Koch Foods, LLC, 667 F. Supp. 2d

768, 783 (E.D. Tenn. 2009) (citing courts holding “that

plaintiffs have standing by alleging a violation of any

NPDES permit condition”).

4. Federal jurisdiction to entertain citizen suits

under the CWA should not vary based on geographic

circumstance. Petitioners strongly believe that the

Ninth Circuit’s position is wrong. But if the Court

disagrees, then there is no basis to deny such

jurisdiction to citizens in the Second Circuit. Either

way, there should be one national rule on this

important and recurring federal question.

The

Court’s intervention is needed to resolve this conflict.

II. The Ninth Circuit’s Decision Is Wrong

This conflict and confusion among the lower courts

is reason enough to grant review. But certiorari is

also warranted because the decision below is wrong.

Interpreting the CWA’s citizen-suit provision to allow

federal lawsuits over permit conditions that exceed

the scope of the CWA distorts the statutory text,

ignores EPA’s own regulations, produces significant

and anomalous consequences, and raises serious

constitutional concerns. The Ninth Circuit’s flawed

interpretation of an important federal statute

demands this Court’s correction.

1. The Ninth Circuit’s rule flouts the CWA’s plain

terms. Section 505 of the CWA authorizes citizen

suits—and grants federal jurisdiction—to enforce an

“effluent standard or limitation” under the CWA. 33

U.S.C. § 1365(a). “[E]ffluent standard or limitation,”

in turn, is defined to include “a permit or condition of

a permit” if it is “issued under section 1342 of this

title.” Id. § 1365(f) (emphasis added).

The term “under” means “[w]ith the authorization

of” or “by virtue of.”

The American Heritage

Dictionary 1395 (1978). As a result, permit conditions

are enforceable in citizen suits only if issued

“‘pursuant to,”’ or “‘by reason of the authority of,”’ 33

U.S.C. § 1342. Ardestani v. INS, 502 U.S. 129, 135 &

n.2 (1991) (interpreting “expenses awarded under this

subsection”); see Florida Dep’t of Revenue v. Piccadilly

Cafeterias, Inc., 554 U.S. 33, 52-53 (2008) (“under

Chapter 11” means “pursuant to” Chapter 11). The

“effluent standards or limitations” enforceable in

federal court under Section 505 thus encompass only

those conditions issued under the authority of the

NPDES program. They do not cover any other

possible condition a State might add to a permit under

state-law authority, simply because part of that

permit implements the NPDES program.

The Ninth Circuit effectively rewrote the statute.

It held that an “effluent standard or limitation”

includes any “‘permit or condition thereof …’”—

omitting the crucial qualifying phrase “‘issued under

section [1342].’” NWEA II, 56 F.3d at 986 (ellipsis in

original). Only by excising this language could the

court assert that the CWA allows citizens to sue to

enforce any “permit or condition thereof.” Id.

Courts may not read words out of a statute. That

is especially true for the CWA, a “carefully drawn”

statute in which Congress “carefully addressed” the

“balance of public and private interests” implicated by

the Act. International Paper Co. v. Ouellette, 479 U.S.

481, 494 (1987). Through the CWA, Congress did not

grant private citizens a cause of action in federal court

to enforce state pollutant-discharge regulations

broader in scope than the requirements of the CWA.

Instead, Congress carefully defined and limited its

grant of jurisdiction to avoid overburdening federal

courts, while leaving States free to adopt broader

regulations under their own state-law authority.

Rewriting the statute to confer jurisdiction on federal

courts to enforce state-law permit conditions disrupts

the “[careful] balance” Congress struck. Id. at 494-95.

2. Other interpretative tools confirm the statute’s

plain text. For example, the definition of “effluent

standard or limitation” includes seven categories of

enforceable restrictions, including the “permit or

condition thereof” provision.

See 33 U.S.C.

§ 1365(f)(1)-(7). None of the other six categories

includes state-law matters; they all address federal

obligations. Id. Those surrounding categories “cabin

the contextual meaning” of Section 505, Yates v.

United States, 574 U.S. 528, 543 (2015) (plurality

opinion), confirming that it covers only federal, not

state-law, conditions.

EPA’s “contemporaneous[]” understanding of the

CWA—an “especially useful” tool of statutory

construction—cements

this

commonsense

construction. Loper Bright Enters. V. Raimondo, 144

S. Ct. 2244, 2262 (2024). The CWA empowers EPA,

like private citizens, to enforce violations of

“condition[s] or limitation[s] … in a permit issued

under section 1342 of this title.”

33 U.S.C.

§ 1319(a)(3).

Shortly after these enforcement

provisions were enacted, EPA issued a regulation that

clearly delineated the CWA’s limits, cautioning that,

“[i]f an approved State program has greater scope of

coverage than required by Federal law[,] the

additional coverage is not part of the Federally

approved program.” 40 C.F.R. § 123.1(i)(2). For

example, EPA noted that, “if a State requires permits

for discharges into publicly owned treatment works,

these permits are not NPDES permits.” Id. § 123.1

second note. This regulation remains in effect today.

And EPA has clarified the obvious implications of it:

“Nor would these State-law requirements be federally

enforceable” by citizens or EPA. 73 Fed. Reg. 70418,

70458 (Nov. 20, 2008) (citing 40 C.F.R. § 123.1(i)(2)).

This longstanding interpretation of the CWA—not

the Ninth Circuit’s—is the correct one.

Moreover, EPA and lower courts have interpreted

the nearly identical enforcement provisions of the

federal Resource Conservation and Recovery Act

(“RCRA”), 42 U.S.C. § 6901 et seq., which governs the

management of solid and hazardous waste, to exclude

state requirements that exceed federal standards.

When EPA adopted comparable regulations for

RCRA, 40 C.F.R. § 271.1, it explained that it “may not

enforce that portion of a state program which is

broader in scope of coverage than the Federal

regulatory program,” Memorandum from William A.

Sullivan, Jr., EPA Enforcement of RCRA-Authorized

State Hazardous Waste Laws and Regulation,

Directive No. 9541.01-82x (Mar. 15, 1982),

https://rcrapublic.epa.gov/files/12046.pdf.

Applying

that guidance, even courts on the Ninth Circuit’s side

of the split have refused to allow federal enforcement

of state-law solid-waste requirements that lack a

counterpart in the federal RCRA program. See, e.g.,

United States v. Recticel Foam Corp., 858 F. Supp.

726, 742 (E.D. Tenn. 1993); Covington v. Jefferson

County, 358 F.3d 626, 642 (9th Cir. 2004). Their

contrary position on the nearly identical CWA citizensuit provision is entirely inconsistent.

3. Extending Section 505 to cover permit

conditions beyond the scope of the CWA also leads to

a number of “illogical results”—another red flag.

Jones v. Hendrix, 599 U.S. 465, 480 (2023).

For example, under the Ninth Circuit’s ruling, any

violation of a state-issued permit that incorporates

NPDES requirements would give rise to a citizen

action under the CWA that could result in the

imposition of civil penalties payable to the United

States Treasury and attorney’s fees. See supra at 7.

That makes no sense. Citizen suits exist to ensure

“compliance with the [CWA].” Gwaltney, 484 U.S. at

60 (emphasis added). Congress did not open the

federal courts for the enforcement of all state-law

conditions just because they are included in the same

permit as federal CWA requirements. Nor does it

make sense to impose penalties payable to the U.S.

Treasury for violations of state laws.

The Ninth Circuit went even further here. It held

that Soundkeeper could enforce state-law conditions

on discharges from portions of facilities explicitly

exempted from the CWA’s industrial-stormwater

requirements. See supra at 12-14. But this just puts

the CWA at war with itself, enabling private enforcers

to invoke it to enforce conditions that vitiate

“carefully drawn” federal limits. International Paper

Co., 479 U.S. at 494. Ultimately, the Ninth Circuit’s

rule dismantles the CWA’s precise framework.

Further, under the Ninth Circuit’s rule, one of two

equally untenable outcomes must be true: either

(i) citizens have more enforcement authority in

federal court than EPA; or (ii) EPA has the ability to

enforce in federal court state laws incorporated into

NPDES permits. Both scenarios are unacceptable.

As for the first, this Court has repeatedly emphasized

that the citizen-suit provision is only a limited

“supplement[]” to the enforcement powers vested in

EPA. Gwaltney, 484 U.S. at 60; see Middlesex Cnty.

Sewerage Auth. V. National Sea Clammers Ass’n, 453

U.S. 1, 14, 17 n.27 (1981). It would be “paradoxical”

to read the citizen-suit provision as giving citizens

greater enforcement authority than the federal

agency charged with enforcing the statute. Askins v.

Ohio Dep’t of Agric., 809 F.3d 868, 875-76 (6th Cir.

2016) (rejecting interpretation of CWA’s citizen-suit

provision that would “grant citizens greater

enforcement authority than the U.S. EPA”).

As for the second, EPA itself has disavowed

authority to enforce state-law requirements that go

beyond the CWA. Supra at 25-26. And allowing EPA

to enforce matters of state law in federal court would

raise serious federalism concerns. It would encroach

on one of the most fundamental aspects of state

sovereignty—the ability of a State to decide how,

when, and by whom its own laws are enforced—while

undermining the CWA’s express intent to preserve

state primacy in water-quality matters. See 33 U.S.C.

§ 1251(b). An interpretation that leads to this result

cannot be correct either. Indeed, just last year, this

Court rejected an “overly broad interpretation of the

CWA’s reach [that] would impinge on [the States’]

authority” where Congress failed to “‘enact

exceedingly clear language’” expressing a desire to

“‘significantly alter the balance between federal and

state power.’” Sackett v. EPA, 598 U.S. 651, 679-80

(2023).

The only outcome that avoids these untenable

results is the one already compelled by the statute’s

plain text and EPA’s implementing regulations: the

CWA’s citizen-suit provision does not extend to

permit requirements adopted under state-law

authority that go beyond the scope of the CWA.

4. The Ninth Circuit’s rule also raises serious

constitutional concerns, making it even more

imperative that the CWA’s citizen-suit provision not

be expanded beyond its terms.

First, the Ninth Circuit’s rule creates Article III

problems. Article III of the Constitution gives the

Judiciary authority to hear cases “arising under”

federal law. U.S. Const. art. III, § 2, cl. 1. Under this

Court’s precedents, Congress cannot simply “grant

jurisdiction over a particular class of cases” to meet

Article III’s “arising under” requirement. Verlinden

B.V. v. Central Bank of Nigeria, 461 U.S. 480, 496

(1983); see Mesa v. California, 489 U.S. 121, 136

(1989) (“[P]ure jurisdictional statute[s] … cannot

support Article III ‘arising under’ jurisdiction.”).

Instead, a case must actually “arise under” federal

law for Congress to confer jurisdiction on federal

courts under Article III to adjudicate it.

The Ninth Circuit’s theory ignores that

constitutional line. Soundkeeper claims a federal

right to enforce permit conditions that regulate far

beyond the federal mandate of the CWA, and that are

implemented pursuant to state-law authority that

does not include citizen enforcement. The Ninth

Circuit’s theory turns Section 505 into a jurisdictional

grant that shoehorns state-law claims into federal

court—precisely what Article III prohibits.

Moreover, even if this construction didn’t raise

Article III problems, it still violates this Court’s

admonition to strictly construe—not vastly enlarge—

statutes that confer jurisdiction on the federal courts.

See, e.g., Romero v. International Terminal Operating

Co., 358 U.S. 354, 379 (1959) (explaining the “deeply

felt and traditional reluctance of th[e Supreme] Court

to expand the jurisdiction of the federal courts

through a broad reading of jurisdictional statutes”).

Second, the Ninth Circuit’s rule ignores the need

to narrowly construe statutory provisions that

empower private citizens to enforce the law, given

their potential to “intru[de]” on government

enforcement prerogatives. Gwaltney, 484 U.S. at 6061; see Garcia v. Cecos Int’l, Inc., 761 F.2d 76, 81 (1st

Cir. 1985) (Wisdom, J.) (“The Supreme Court has

demanded strict adherence to statutory provisions for

citizens’ suits in environmental litigation.”).

In the citizen-suit context, a private plaintiff is

“basically

unchecked

exercise

executive,

prosecutorial authority as a ‘private attorney

general.’” Charles S. Abell, Ignoring the Trees for the

Forests: How the Citizen Suit Provision of the Clean

Water Act Violates the Constitution’s Separation of

Powers Principle, 81 Va. L. Rev. 1957, 1964 (1995). As

a result, private citizens can launch CWA suits for

reasons entirely unrelated to environmental

protection—be it to target industries they dislike,

attract donor dollars, or simply out of spite.

This unchecked power has led Justices of this

Court to repeatedly question whether the citizen-suit

mechanism violates Article II. See Friends of the

Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528

U.S. 167, 197 (2000) (Kennedy, J., concurring); id. at

209 (Scalia, J., joined by Thomas, J., dissenting); DOT

v. Association of Am. Railroads, 575 U.S. 43, 62 (2015)

(Alito, J., concurring); see also United States ex rel.

Polansky v. Executive Health Res., Inc., 599 U.S. 419,

442-450 (2023) (Kavanaugh, J., joined by Barrett, J.,

concurring) (recognizing the “substantial arguments”

that qui tam suits violate Article II for similar

reasons). Here, the Ninth Circuit’s rule raises

significant federalism concerns to boot by intruding

on the sovereign ability of States to choose when and

how to enforce their own environmental laws and

conditions. See infra at 35-36.

The Ninth Circuit could, and should, have

“avoid[ed] the significant constitutional and

federalism questions” raised by its overly broad CWA

interpretation. Solid Waste Agency of N. Cook Cnty.

v. United States Army Corps of Eng’rs, 531 U.S. 159,

174 (2001). States that wish to enforce state-law

conditions in pollutant-discharge permits have the

authority and ability to do so under state law. But

Congress did not unleash a force of unchecked private

attorneys general to invoke the jurisdiction of the

federal courts to do so in their stead.

III. The Question Presented Is Important And

Warrants This Court’s Review In This Case

The importance of the question presented

underscores the need for this Court’s intervention.

1. This Court has repeatedly intervened to

enforce the careful balance struck by the CWA and

protect against overregulation. See, e.g., Sackett v.

EPA, 142 S. Ct. 896 (2022) (granting certiorari);

County of Maui v. Hawaii Wildlife Fund, 139 S. Ct.

196 (2019) (same); Decker v. Northwest Env’t Def. Ctr.,

567 U.S. 933 (2012) (same); Los Angeles Cnty. Flood

Control Dist. v. Natural Res. Def. Council, Inc., 567

U.S. 933 (2012) (same); see also City & Cnty. of S.F. v.

EPA, 144 S. Ct. 2578 (2024) (same).

The Court’s intervention is likewise needed here.

As Judge O’Scannlain observed, the Ninth Circuit’s

expansive interpretation of the CWA’s citizen-suit

provision upsets the “delicate balance envisioned by

Congress in its promulgation of the current

enforcement regime for environmental law.” App.20a

(citation omitted). Indeed, under the Ninth Circuit’s

rule, citizens—without any of the institutional checks

governing enforcement agencies—can invoke the

jurisdiction of the federal courts and assert even

“technical” violations of state-law conditions that go

beyond the scope of the CWA. Jonathan H. Adler,

Stand or Deliver: Citizen Suits, Standing, and

Environmental Protection, 12 Duke Env’t L. & Pol’y

F. 39, 43, 49-50, 56-57, 62 (2001); see also Rick W.

Jarvis, A City Attorney’s Citizens’ Suit Survival

Guide, League of California Cities (May 1996)

(apprising city attorneys on citizens’ “creative”

theories for bringing federal actions against

municipalities, including by threatening to sue over

violations of California “Discharge Requirements”

that are “far broader than” the CWA’s requirements).6

In practice, this dynamic has created its own

unique breed of professional “citizen suit” plaintiff.

Soundkeeper is a good example. According to its

website, Soundkeeper has filed more than 170 CWA

citizen-suit actions in federal court since 1992—many

of which alleged violations of permit conditions that

https://www.cacities.org/UploadedFiles/LeagueInternet/

2a/2a7c5332-7aef-4598-9218-c60b795f8119.pdf.

go beyond the CWA.7 Indeed, Soundkeeper has

already brought another lawsuit against SSA alleging

ISGP violations from stormwater runoff at a wharf.8

Imposing the ISGP’s complex—and often infeasible—

permit requirements on overwater, non-industrial

areas like the Wharf makes them an easy target for

citizen suits. The prospect of attorney’s fees only

heightens the appeal of bringing such suits. And the

combination of ever-expanding state-law conditions

and the possibility of lucrative fee awards—without

the traditional checks on prosecutorial overreach or

agency discretion—is a recipe for never-ending

litigation never intended by Congress.

Moreover, these professional “citizen suit”

plaintiffs target an increasingly expanding

community regulated under complex and far-reaching

permits. NPDES permits are ubiquitous: The federal

government estimates that more than 330,000 project

operators nationwide maintained active NPDES

permits in fiscal year 2020. U.S. Gov’t Accountability

Off., Clean Water Act: EPA Needs to Better Assess and

Disclose Quality of Compliance and Enforcement Data

7 (July 2021).9 And forty-seven States issue those

NPDES permits themselves, often incorporating

See Puget Soundkeeper, Clean Water Act Lawsuits,

https://pugetsoundkeeper.org/strategy-citizen-lawsuits/

(last

visited Sept. 18, 2024) (“CWA Lawsuits”).

See Puget Soundkeeper All. v. SSA Marine, Inc., No. 24cv-00438 (W.D. Wash. filed Apr. 1, 2024); see also, e.g.,

Communities for a Healthy Bay v. Husky Terminal &

Stevedoring, LLC, No. 24-cv-05662-BHS (W.D. Wash. filed Aug.

12, 2024) (another citizen group alleging violations of the ISGP

at a wharf).

https://www.gao.gov/assets/gao-21-290.pdf.

exclusively state requirements on top of the CWA

requirements.

For example, multiple States have incorporated

into their NPDES permits conditions on discharging

pollutants to groundwater—even though Congress

expressly exempted such discharges from the CWA.10

And citizen-suit plaintiffs have taken note—bringing

federal suits to enforce those broader conditions.11

The consequences of this enforcement regime are

particularly severe for municipalities and public

entities like the Port of Tacoma.

Complex

environmental litigation is increasingly expensive,

particularly given the CWA’s near-mandatory (for

plaintiffs) fee-shifting provision. 33 U.S.C. § 1365(d);

see Saint John’s Organic Farm v. Gem Cnty.

Mosquito Abatement Dist., 574 F.3d 1054, 1063-64

(9th Cir. 2009) (a district court’s discretion to deny a

prevailing citizen fees “is narrow”).

As Judge

O’Scannlain noted, the Ninth Circuit rule “promises

to invite excessive, costly, and counterproductive

See, e.g., Maryland Dep’t of the Env’t v. Assateague

Coastal Tr., 299 A.3d 619, 633-34 (Md. 2023); In re Reissuance of

an NPDES/SDS Permit to United States Steel Corp., 954

N.W.2d 572, 577 (Minn. 2021).

11 See, e.g., Yadkin Riverkeeper, Inc. v. Duke Energy

Carolinas, LLC, 141 F. Supp. 3d 428, 448 (M.D.N.C. 2015)

(allowing citizens to enforce permit conditions that applied to

groundwater and surface water and that regulated the safety of

dams); Cape Fear River Watch, Inc. v. Duke Energy Progress,

Inc., No. 7:13-cv-200, 2014 WL 10991530, at *1 (E.D.N.C. Aug.

1, 2014) (holding that a State has the “ability … to regulate

groundwater on its own by imposing NPDES permit conditions”

and a citizen can enforce such provisions); Okanogan Highlands

All. v. Crown Res. Corp., 544 F. Supp. 3d 1092, 1097 (E.D. Wash.

2021) (allowing citizens to enforce conditions of a combined

permit regulating groundwater).

citizen suits, funded by the taxpayers, for the

enforcement of standards that are imprecise and

astronomically costly to the municipalities affected.”

NWEA III, 74 F.3d at 946. Given the limited

resources available to government entities, litigation

expenses can divert funds from essential government

programs—costs

that

taxpayers

themselves

ultimately bear. See Susan A. Macmanus, The Impact

of Litigation on Municipalities: Total Cost, Driving

Factors, and Cost Containment Mechanisms, 44

Syracuse L. Rev. 833, 840-41 (1993).

The Ninth Circuit’s rule also harms the States by

undermining “the CWA’s express policy to ‘preserve’

the States’ ‘primary’ authority over land and water

use.” Sackett, 598 U.S. at 680 (quoting 33 U.S.C

§ 1251(b)). Many States, including Washington, have

chosen not to grant their citizens a cause of action to

enforce their water laws. See James R. May, The

Availability of State Environmental Citizen Suits, 18SPG Nat. Res. & Env’t 53, 56 (2004, Westlaw). For

good reason: States often need to rely on their own

enforcement discretion when experimenting with

more stringent regulatory approaches. Allowing

private parties to make their own enforcement

decisions can “frustrate” the very “objective[s] of

environmental protection” by subjecting parties—

especially municipalities—to litigation the State has

chosen not to invite. Frank B. Cross, Rethinking

Environmental Citizen Suits, 8 Temp. Env’t L. &

Tech. J. 55, 64 (1989, Westlaw).

Indeed, in light of the significant costs associated

with obtaining compliance with its industrialstormwater requirements on the entirety of an

industrial facility, Ecology specifically told ports it

would use its “enforcement discretion” to allow time

to comply. 4-ER-746. Yet the decision below allows

citizens to override the State’s discretion and enlist

federal courts to enforce Washington’s requirements,

supplanting

(i)

Washington’s

enforcement

prerogatives, (ii) the CWA’s cooperative federalism,

and (iii) this Court’s precedents limiting citizen suits

to a “supplementary role.” Gwaltney, 484 U.S. at 60.

The fact that this case arises from the Ninth

Circuit—the nation’s largest circuit and a magnet for

environmental litigation—amplifies the need for

review. Environmental plaintiffs flock to the Ninth

Circuit to launch their citizen suits, drawn by the

sweeping environmental laws of its States. See, e.g.,

David Adelman & Robert Glicksman, Reevaluating

Environmental Citizen Suits in Theory and Practice,

91 Colo. L. Rev. 386, 430-31, 439-40 (2020). Many of

these suits seek to enforce state-law permit conditions

that are increasingly vague and expansive, extending

well beyond federal requirements. Supra at 32-34.

The Ninth Circuit’s unequivocal reaffirmation of its

overly broad interpretation of the CWA’s citizen-suit

provision will only invite more such actions.

2. This case is an ideal vehicle for resolving the

question presented. Although citizen groups send

hundreds of notices of intent to sue annually, very few

citizen-suit cases make it to the courts of appeals, let

alone this Court, because the costs and burdens of

such litigation often force citizen-suit defendants to

settle, rather than fight. See Friends of the Earth, 528

U.S. at 209-10 (Scalia, J., dissenting) (observing how

citizen plaintiffs’ “massive bargaining power ... is

often used to achieve settlements requiring the

defendant to support environmental projects of the

plaintiffs’ choosing”); Marc Robertson, Environmental

Ambulance Chasing: DOJ Urges Court To Scrutinize

Clean Water Citizen-Suit Settlements, Forbes

(June 26, 2018) (describing a Department of Justice

court filing raising concerns about abusive CWA

citizen suits). Indeed, Soundkeeper’s own website

proudly boasts that most of its citizen suits “resolve[]

without going to trial.”12 This Court should not miss

this opportunity to settle a well-entrenched circuit

split over the breadth of the citizen-suit provision.

This case offers an ideal vehicle to do so. The

question presented was dispositive to the judgment

below and pressed at every step of this case. See

App.11a, 6a.

The Ninth Circuit’s rejection of

petitioners’ position on the question presented was its

sole basis for allowing Soundkeeper’s suit against the

Port to proceed once the Ninth Circuit determined

that the ISGPs cover discharges from the Wharf. See

App.11a-13a. And both the panel opinion and Judge

O’Scannlain’s special concurrence fully ventilated

this issue and acknowledged the direct circuit conflict.

In short, the question presented clearly warrants

review and is cleanly presented here.

See CWA Lawsuits, supra.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

BRADFORD T. DOLL

LYNNE M. COHEE

FOSTER GARVEY PC

1111 Third Avenue

Suite 3000

Seattle, WA 98101

Counsel for Petitioner

Port of Tacoma

BRADLEY B. JONES

DIANNE K. CONWAY

GORDON THOMAS

HONEYWELL LLP

1201 Pacific Avenue

Suite 2100

Tacoma, WA 98402

Counsel for Petitioners

SSA Terminals, LLC, and

SSA Terminals (Tacoma),

LLC

September 25, 2024

GREGORY G. GARRE

Counsel of Record

ROMAN MARTINEZ

BLAKE E. STAFFORD

CHRISTINA R. GAY

LATHAM & WATKINS LLP

555 Eleventh Street, NW

Suite 1000

Washington, DC 20004

(202) 637-2207

gregory.garre@lw.com

Counsel for Petitioners

Port of Tacoma,

SSA Terminals, LLC,

and SSA Terminals

(Tacoma), LLC

APPENDIX

TABLE OF CONTENTS

Page

Opinion of the United States Court of Appeals

for the Ninth Circuit, Port of Tacoma v.

Puget Soundkeeper, 104 F.4th 95 (9th Cir.

2024) ....................................................................1a

Order of the United States District Court of the

Western District of Washington Granting

Port of Tacoma Motion for Partial

Summary Judgment, Puget Soundkeeper

Alliance v. APM Terminals Tacoma, LLC,

No. C17-5016 BHS, 2020 WL 6445825

(W.D. Wash. Nov. 3, 2020) ...............................21a

Order of the United States District Court of the

Western District of Washington Granting

SSA Terminals, LLC, and SSA Terminals

(Tacoma), LLC, Motion for Summary

Judgment, Puget Soundkeeper Alliance v.

SSA Terminals, LLC, 561 F. Supp. 3d 1113

(W.D. Wash. 2021) ............................................48a

Order of the United States District Court of the

Western District of Washington Granting

Defendant’s Motion for Entry of Rule 54(b)

Judgment, Puget Soundkeeper Alliance v.

SSA Terminals, LLC, No. C17-5016 BHS,

2021 WL 4226162 (W.D. Wash. Sept. 16,

2021) ..................................................................70a

33 U.S.C. § 1342(a), (p) ...........................................76a

33 U.S.C. § 1365 ......................................................82a

40 C.F.R. § 123.1 .....................................................86a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PUGET SOUNDKEEPER ALLIANCE,

Plaintiff-Appellant,

PORT OF TACOMA; SSA Terminals LLC;

SSA Terminals (Tacoma), LLC, DefendantsAppellees,

and

APM Terminals Tacoma LLC; Don Esterbrook,

Defendants.

Puget Soundkeeper Alliance, PlaintiffAppellee,

Port of Tacoma, Defendant-Appellant,

and

SSA Terminals LLC; SSA Terminals (Tacoma),

LLC; APM Terminals Tacoma LLC; Don

Esterbrook, Defendants.

Puget Soundkeeper Alliance, PlaintiffAppellee,

SSA Terminals LLC; SSA Terminals (Tacoma),

LLC, Defendants-Appellants,

and

Port of Tacoma; APM Terminals Tacoma LLC;

Don Esterbrook, Defendants.

No. 21-35881

No. 21-35899

No. 22-35061

Argued and Submitted December 7, 2022

Submission Withdrawn August 18, 2023

Resubmitted June 10, 2024

Seattle, Washington

Filed June 10, 2024

[104 F.4th 95]

Before: Diarmuid F. O’Scannlain, M. Margaret

McKeown, and Eric D. Miller, Circuit Judges.

Opinion by Judge Miller;

Special Concurrence by Judge O’Scannlain

OPINION

MILLER, Circuit Judge:

Discharges of stormwater are not generally

regulated under the Clean Water Act, but they are

regulated when they result from certain industrial

activities. This case involves a facility that conducts

such activities. The question presented is whether

regulation extends to all discharges from the facility

or only to discharges from the portions of the facility

where the industrial activities occur. We consider

that question in the context of several different

versions

Washington

State’s

Industrial

Stormwater General Permit, which implements the

Clean Water Act in Washington. With respect to

those permits that have not been challenged in state

court, we conclude that the plain text of the permits

extends coverage to the entire facility and that the

validity of the permits is not subject to collateral

attack in federal court. We therefore reverse the

district court’s contrary determination. With respect

to the permit that is subject to an ongoing state-court

challenge, we remand to allow the district court to

consider in the first instance the effect of the state

proceedings on this case.

The Clean Water Act prohibits “the discharge of

any pollutant by any person” into the waters of the

United States without a National Pollutant Discharge

Elimination System (NPDES) permit. 33 U.S.C.

§ 1311(a); see NRDC v. County of Los Angeles, 725

F.3d 1194, 1198 (9th Cir. 2013). The Environmental

Protection Agency has authority to issue regulations

implementing the Act, 33 U.S.C. § 1361(a), and to

issue NPDES permits, id. § 1342(a).

The West Sitcum Terminal is a 137-acre marine

cargo terminal located on Commencement Bay, an

arm of Puget Sound, in Tacoma, Washington.

It is operated by the Port of Tacoma and by SSA

Terminals,

LLC

and

affiliated

companies

(collectively, the Port). At issue in this case is a 12.6acre portion of the Terminal, commonly referred to as

“the Wharf,” where five large cranes load and unload

container ships.

When rain falls on the Terminal, stormwater

runs into Puget Sound, carrying with it metals

and other pollutants.

But in recognition that

“[p]ractically speaking, rain water will run downhill,

and not even a law passed by the Congress of the

United States can stop that,” the Clean Water Act

does not require an NPDES permit for all discharges

of stormwater. Hughey v. JMS Dev. Corp., 78 F.3d

1523, 1530 (11th Cir. 1996); see 33 U.S.C. § 1342(p)

(defining the scope of stormwater regulation).

Instead, only certain categories of stormwater

discharges require a permit.

One such category is stormwater discharges

“associated with industrial activity.”

33 U.S.C.

§ 1342(p)(2)(B).

EPA’s regulations define that

category to include discharges from “[t]ransportation

facilities” (further defined as facilities that fall within

specified Standard Industrial Classifications) that

house “vehicle maintenance shops, equipment

cleaning operations, or airport deicing operations.” 40

C.F.R. § 122.26(b)(14)(viii). The Terminal is such a

facility, but the regulations do not require it to control

every discharge of stormwater. Rather, they apply to

“[o]nly those portions of the facility that are . . .

involved in vehicle maintenance . . . , equipment

cleaning operations, [or] airport deicing operations.”

Id. (emphasis added). Because such activities do not

occur at the Wharf, discharges from there do not

require NPDES permits.

Although the EPA has the authority to issue

NPDES permits itself, 33 U.S.C. § 1342(a), it can

delegate that responsibility to the States, id.

§ 1342(b); see Southern Cal. All. of Publicly Owned

Treatment Works v. EPA, 8 F.4th 831, 834 (9th Cir.

2021). It has done so in almost every State, including

Washington. 39 Fed. Reg. 26,061 (1974). Exercising

its delegated authority, Washington regulates

industrial stormwater discharges through a “general

permit,” a single NPDES permit that applies to all

facilities conducting industrial activities that

discharge stormwater to a surface water body or a

storm sewer that drains to one. See Alaska Cmty.

Action on Toxics v. Aurora Energy Servs., LLC, 765

F.3d 1169, 1171 (9th Cir. 2014). That permit, the

Industrial Stormwater General Permit (ISGP), is

issued by the Washington State Department of

Ecology (Ecology), which is responsible for Clean

Water Act permitting on behalf of the State. At issue

here are the three editions of the ISGP issued in 2010,

2015, and 2020, each with a term of five years.

The ISGPs purport to define the requirements of

the Clean Water Act: They state that “[a]ny permit

noncompliance constitutes a violation of the Clean

Water Act.” (Many of the words in the ISGPs are

italicized; we omit the italics throughout.) But

beginning in 2010, Ecology omitted the limiting terms

of the federal regulations—that is, the terms

confining regulation of industrial stormwater to

“[o]nly those portions of a facility” where

vehicle maintenance, equipment cleaning, and

airport deicing take place—from the ISGPs

governing discharges from the Port. 40 C.F.R.

§ 122.26(b)(14)(viii). Instead, the 2010 permit states

that it applies to “[t]ransportation facilities”—not

merely portions of such facilities—“which have

vehicle maintenance shops, material handling

facilities, equipment cleaning operations, or airport

deicing operations.” The relevant provisions of the

2015 and 2020 permits are the same.

Puget Soundkeeper Alliance (Soundkeeper) is an

environmental organization concerned with water

quality in Puget Sound. It brought this action under

the citizen-suit provision of the Clean Water Act,

33 U.S.C. § 1365, alleging that the Port had violated

the Act in various respects. In a memorandum

disposition filed concurrently with this opinion, we

address Soundkeeper’s claims about the discharges

from the Terminal that uncontroversially require

some degree of regulation. In this opinion, we confine

ourselves to considering whether stormwater

discharges from the Wharf are subject to regulation.

The district court granted partial summary

judgment to the Port on that issue. The court held

that the ISGPs do not extend coverage to the entire

footprint of facilities that conduct industrial activity.

Although the “Permit Coverage” sections of the ISGPs

omit the limiting terms from the federal regulations,

the court looked to Table 1, which appears just under

the “Permit Coverage” section of the ISGPs, and

which sets out a list of “activities requiring permit

coverage.” In the 2010 ISGP, the definition section

says that “Table 1 lists the 11 categories of industrial

activities identified in 40 CFR 122.26(b)(14)(i-xi) in a

different format.” Accordingly, the court reasoned,

the inclusion of Table 1 in the ISGPs was tantamount

to the incorporation of the federal regulations,

including section 122.26(b)(14)(viii), which limits the

definition of industrial activity—and thus the scope of

regulatory coverage—to include only the portions of

facilities where that activity takes place. Having

determined that the ISGPs do not extend coverage to

the Wharf, the court did not consider the Port’s

alternative argument that, to the extent the ISGPs do

extend coverage to the Wharf, they may not be

enforced in a citizen suit under the Clean Water Act.

The district court subsequently resolved the

remaining claims and entered a final judgment,

which both sides appealed under 28 U.S.C. § 1291.

The district court analyzed all three ISGPs—the

2010, 2015, and 2020 editions—together, but as the

case comes before us, the 2020 ISGP presents distinct

issues from the earlier permits.

We begin by

considering the 2010 and 2015 ISGPs before turning

to the 2020 ISGP.

The district court believed that the ISGPs do

not extend coverage to the Wharf. The Port defends

that interpretation and, alternatively, renews

its argument that if the ISGPs do extend coverage

to the Wharf, they may not be enforced in a citizen

suit under the Clean Water Act. We reject both

arguments.

At the outset, we must determine the standard of

review that applies to the ISGPs. The district court

reasoned that “NPDES permits are treated like any

other contract.” County of Los Angeles, 725 F.3d at

1204. But that is true only of an individual permit—

that is, a permit authorizing a particular entity to

discharge a pollutant in a specific place. See Alaska

Cmty. Action on Toxics, 765 F.3d at 1172. An ISGP is

a general permit—that is, a permit that authorizes

discharges by an entire class of potential dischargers

across a region. Id. Because such a permit is more

akin to a regulation, we interpret it as we would a

regulation. Id. In either case, however, we must “give

effect to the natural and plain meaning of [the

permit’s] words.” Id. (quoting Bayview Hunters Point

Cmty. Advocates v. Metropolitan Transp. Comm’n,

366 F.3d 692, 698 (9th Cir. 2004)); accord County of

Los Angeles, 725 F.3d at 1204–05 (“If the language of

the permit, considered in light of the structure of the

permit as a whole, ‘is plain and capable of legal

construction, the language alone must determine the

permit’s meaning.’” (quoting Piney Run Pres. Ass’n v.

County Comm’rs of Carroll Cnty., 268 F.3d 255, 270

(4th Cir. 2001))). We review the district court’s

interpretation de novo. Alaska Cmty. Action on

Toxics, 765 F.3d at 1172.

The 2010 and 2015 ISGPs plainly require that a

transportation

facility

conducting

industrial

activities implement stormwater controls across the

entire facility. The first section of the ISGPs, entitled

“S1. Permit Coverage,” begins by stating that “[t]his

statewide permit applies to facilities conducting

industrial activities that discharge stormwater.”

A facility “shall apply for coverage” if it “conduct[s]

industrial activities listed in Table 1.” Table 1 then

lists industrial activities and includes an entry for

“[t]ransportation facilities which have vehicle

maintenance shops, material handling facilities,

equipment cleaning operations, or airport deicing

operations.” In this respect, the ISGPs differ from the

federal regulations. Under the ISGPs, coverage is

triggered—that is, “[t]his statewide permit applies”—

when the facility conducts industrial activity, not

when a particular discharge is “associated with

industrial activity.” 40 C.F.R. § 122.26(a)(1)(ii). The

nature of the facility, not the nature of the discharge,

determines whether there is coverage. See Puget

Soundkeeper Alliance v. Pollution Control Hearings

Bd., ––– Wash.App.2d ––––, ––––, 545 P.3d 333, 345

(2024) (holding that “it is plain that [the 2020 ISGP]

requires coverage for the land and appurtenances at

any transportation facility that conducts vehicle

maintenance, equipment cleaning, or airport deicing

operations—that is, the entire footprint of the

transportation facility”). Because the Terminal is a

facility conducting industrial activities, the permits

apply to the entire facility, including the Wharf.

The Port argues that regardless of whether the

permits writ large apply to the entire facility, the

specific provisions of the permits—prescribing the

actual substance of the permit-holders’ obligations—

are written so as to control only discharges associated

with industrial activity. To the contrary, the permits’

specific obligations encompass the entire facility.

The ISGPs impose a range of obligations on

permit-holders, all of which are derivative, in one way

or another, of two core obligations: the preparation

of a Stormwater Pollution Prevention Plan and

regular sampling of discharges for pollutants. Those

two obligations apply across the entire facility.

In preparing a Stormwater Pollution Prevention

Plan, the permit-holder must identify and implement

“all known, available, and reasonable methods of

prevention, control and treatment . . . of stormwater

pollution.” The permit offers no qualification or

limitation based on where, on site, the stormwater

pollution originates. A permit-holder must update

the plan if it determines that the current plan would

be “ineffective in eliminating . . . pollutants in

stormwater discharges from the site.” (emphasis

added). The plan evidently concerns reduction of

pollution from the site as a whole, not pollution

associated with specific industrial activities.

Likewise, the permit-holder must sample discharges

from the entire site. Specifically, Condition S4

requires sampling of pollutant levels at “each distinct

point of discharge off-site,” not just at discharge

points associated with industrial activity.

Because the obligations to prepare a Stormwater

Pollution Prevention Plan and to sample encompass

discharges from the entire facility, so, too, do the rest

of the permit’s obligations, such as the obligations to

inspect discharges from the facility, to monitor

discharges for exceedances of benchmark levels, to

take corrective actions when pollutant levels in

discharges exceed applicable benchmarks, and

10a

to comply with water quality standards. Consistent

with the opening sentence of the permits, the permits

“appl[y]” to the entire Terminal.

Where the ISGPs limit the scope of their coverage,

they say so clearly by exempting discharges or

applying specific rules to them. For instance, “if any

part of a facility . . . has a stormwater discharge”

containing certain toxic pollutants, the permit-holder

must secure an “individual NPDES” permit for that

discharge. Similarly, the permits explain that “[f]or

sites that discharge to both surface water and ground

water, the terms and conditions of this permit shall

apply to all ground water discharges,” but permittees

“are not required to sample on-site discharges to

ground.” Those carve-outs underscore that, in the

ordinary course, the permits require compliance

across discharges at an entire facility.

In reaching a contrary conclusion, the district

court focused on the permits’ definition of industrial

activity.

In the 2010 ISGP, the definition of

“industrial activity” includes the following sentence:

“Table 1 lists the 11 categories of industrial activities

identified in 40 CFR 122.26(b)(14)(i-xi) in a different

format.” According to the district court, the ISGP

therefore incorporates the federal regulatory

definition of what industrial activities are covered at

a transportation facility.

The 2015 ISGP does not include that sentence in

its definition of “industrial activity,” so that line of

argument is of limited value in interpreting the 2015

ISGP. Regardless, we read both editions of the permit

as requiring stormwater controls across the entirety

of facilities conducting industrial activity. The permit

“applies to facilities conducting industrial activities,”

not to discharges associated with industrial

11a

activity. Even if the ISGPs mirrored 40 C.F.R.

§ 122.26(b)(14)(viii) by directly stipulating that

“[o]nly those portions of the facility” involved in

vehicle maintenance or equipment cleaning “are

associated with industrial activity,” the permits’

coverage would continue to depend on whether the

facility as a whole “conduct[s] industrial activities,”

not on whether specific discharges are associated with

that activity. See Puget Soundkeeper Alliance, 545

P.3d at 345 (concluding that a contrary interpretation

would require “read[ing] language into the definition

and” making parts of the permit “superfluous”).

Because the 2010 and 2015 ISGPs apply to the

entirety of transportation facilities that conduct listed

industrial activity, and because the Terminal is such

a facility, the Port needed to implement appropriate

stormwater controls across the footprint of the

Terminal while the 2010 and 2015 ISGPs were in

effect.

The Port argues that even if the ISGPs do regulate

discharges from the Wharf, they are not enforceable

in a citizen suit because they exceed the requirements

of the federal regulations, and “Ecology never sought

EPA approval to expand the scope of the NPDES

program.” The district court did not reach that

argument, but it was preserved below. Because we

may affirm on any ground supported by the record, we

proceed to consider it. Ellis v. Salt River Project

Agric. Improvement & Power Dist., 24 F.4th 1262,

1268 (9th Cir. 2022).

The Port’s argument is foreclosed by the plain

language of the Clean Water Act’s citizen-suit

provision, which states that “any citizen may

12a

commence a civil action . . . against any person . . .

who is alleged to be in violation of . . . an effluent

standard or limitation under this chapter.” 33 U.S.C.

§ 1365(a). The term “effluent standard or limitation

under this chapter” is defined to include “a permit or

condition of a permit issued under section 1342 of

this title that is in effect under this chapter.” Id.

§ 1365(f)(7); see also id. § 1342 (providing the general

authorization for NPDES permitting). Here, there is

no dispute that the ISGP is “a permit issued under

section 1342,” nor that it was “in effect.” It follows

that Soundkeeper may bring a citizen suit to

challenge an alleged violation of the ISGP. And that

is how we have previously read the statute: “The

plain language of [section 1365] authorizes citizens

to enforce all permit conditions.” Northwest Env’t

Advocs. v. City of Portland, 56 F.3d 979, 986 (9th Cir.

1995); accord County of Los Angeles, 725 F.3d at 1204;

Community Ass’n for Restoration of the Env’t v. Henry

Bosma Dairy, 305 F.3d 943, 956 (9th Cir. 2002); see

also Parker v. Scrap Metal Processors, Inc., 386 F.3d

993, 1008 (11th Cir. 2004).

In urging a contrary result, the Port primarily

argues that cases about the enforceability of permit

conditions are inapposite because they involved

“a condition plainly expressed in a permit.” That is

merely a reprise of the Port’s argument that ISGP’s

plain language does not extend coverage to the Wharf,

an argument that we have already rejected. The Port

also invokes Atlantic States Legal Foundation, Inc. v.

Eastman Kodak Co., in which the Second Circuit

concluded that “state regulations, including the

provisions of [state-issued] permits, which mandate

‘a greater scope of coverage than that required’ by the

federal [Act] and its implementing regulations are not

13a

enforceable through a citizen suit.” 12 F.3d 353, 359

(2d Cir. 1993) (quoting 40 C.F.R. § 123.1(i)(2)), as

amended (Feb. 3, 1994). Whether or not the ISGPs

prescribe “a greater scope of coverage” than the

federal regulations in the sense contemplated by the

Second Circuit, we note that “the holding in

[Northwest Environmental Advocates] directly

conflicts with the Second Circuit’s decision in Atlantic

States,” and we are bound to follow the former.

Northwest Env’t Advocs. v. City of Portland, 74 F.3d

945, 948 (9th Cir. 1996) (O’Scannlain, J., dissenting

from denial of rehearing en banc).

The Port further argues that a State cannot issue

NPDES permits that exceed the stringency of federal

stormwater regulations unless the State formally

“determines that the [stormwater] discharge, or

category of discharges within a geographic area,

contributes to a violation of a water quality standard

or is a significant contributor of pollutants to waters

of the United States.” 40 C.F.R. § 122.26(a)(9)(i)(D).

Assuming, without deciding, that Ecology was

required to make such a determination but failed to

do so, we hold that the Port cannot now collaterally

attack the validity of conditions in the 2010 and 2015

ISGPs.

The Clean Water Act “does not contemplate

federal court review of state-issued permits.”

Southern Cal. All. of Publicly Owned Treatment

Works v. EPA, 853 F.3d 1076, 1086 (9th Cir. 2017)

(quoting American Paper Inst., Inc v. EPA, 890 F.2d

869, 875 (7th Cir. 1989)). “[S]tate officials—not the

federal EPA—have the primary responsibility for

reviewing and approving NPDES discharge permits,

albeit with continuing EPA oversight.” Akiak Native

Cmty. v. EPA, 625 F.3d 1162, 1164 (9th Cir. 2010)

14a

(quoting National Ass’n of Home Builders v. Defenders

of Wildlife, 551 U.S. 644, 650, 127 S.Ct. 2518, 168

L.Ed.2d 467 (2007)).

We have previously observed that the Clean Water

Act “make[s] the states, where possible, the primary

regulators of the NPDES system.” Southern Cal. All.

of Publicly Owned Treatment Works, 853 F.3d at 1086

(quoting American Paper Inst., 890 F.2d at 873).

A party may object to the conditions of a state-issued

permit on the basis of federal law, but “state courts

can interpret federal law, and thus can review and

enjoin state authorities from issuing permits that

violate the requirements of the Clean Water Act.”

Southern Cal. All. of Publicly Owned Treatment

Works, 8 F.4th at 839 (quoting Boise Cascade Corp. v.

EPA, 942 F.2d 1427, 1434 (9th Cir. 1991)). Indeed,

parties seeking review of state decisions about

permits are guaranteed judicial review in state courts

“that is the same as that available to obtain judicial

review in federal court of a federally-issued NPDES

permit.” 40 C.F.R. § 123.30.

The principle that federal courts do not reconsider

the validity of state-issued permits helps explain the

settled rule that “[w]here a permittee discharges

pollutants in compliance with the terms of its NPDES

permit, the permit acts to ‘shield’ the permittee from

liability under the CWA.” County of Los Angeles, 725

F.3d at 1204; see also EPA v. California ex rel. State

Water Res. Control Bd., 426 U.S. 200, 205, 96 S.Ct.

2022, 48 L.Ed.2d 578 (1976); Alaska Cmty. Action on

Toxics, 765 F.3d at 1171. That is, if a permit-holder

complies with the terms of its permit, it need not fear

liability under the Clean Water Act. Neither the EPA

nor a citizen can use an enforcement action or a

citizen suit to revisit the validity of permit conditions.

15a

33 U.S.C. § 1342(k). As the Supreme Court has

explained, “[t]he purpose of [section 1342(k)] seems to

be to . . . relieve [permit holders] of having to litigate

in an enforcement action the question whether their

permits are sufficiently strict. In short, [section

1342(k)] serves the purpose of giving permits

finality.” E. I. du Pont de Nemours & Co. v. Train,

430 U.S. 112, 138 n.28, 97 S.Ct. 965, 51 L.Ed.2d 204

(1977).

Accordingly, Soundkeeper could not hold the Port

liable in a citizen suit on the theory that certain

permit conditions in the ISGP were invalid because

they were overly permissive. By the same token,

however, the Port cannot avoid liability by arguing

that certain terms in its permit are invalid because

they are overly restrictive. We will not consider

collateral attacks on the validity of permit conditions

in the course of an enforcement action or citizen suit,

whether those attacks arise offensively or defensively.

See Sierra Club v. Union Oil Co. of Cal., 813 F.2d

1480, 1488 (9th Cir. 1987) (“The state’s method of

adopting a more stringent standard should be subject

to scrutiny only at the permit issuance stage.”),

vacated, 485 U.S. 931, 108 S.Ct. 1102, 99 L.Ed.2d 264

(1988), reinstated as amended, 853 F.2d 667 (9th Cir.

1988).

Our approach is consistent with that of other

courts that have rejected collateral attacks in Clean

Water Act enforcement actions. In General Motors

Corp. v. EPA, a permit-holder sought to defend

against an EPA enforcement action by arguing that

certain terms in a state-issued permit exceeded the

scope of lawful stormwater regulation under the

Clean Water Act. 168 F.3d 1377, 1379 (D.C. Cir.

1999). The District of Columbia Circuit held that the

16a

EPA had reasonably interpreted the Act to bar

a permit-holder from collaterally attacking “the

validity of its state permit in [a] federal enforcement

proceeding.”

Id. at 1383.

Instead, the court

explained, the Act “remit[s] to a state forum any

attack upon the validity of a state permit.” Id.; accord

Public Int. Rsch. Grp. of N.J., Inc. v. Powell Duffryn

Terminals Inc., 913 F.2d 64, 77–78 (3d Cir. 1990).

Likewise, the Port cannot mount a collateral

attack on the validity of stormwater regulations in the

2010 and 2015 ISGPs. Ecology issued ISGPs in 2010

and 2015 providing that “[a]ny permit noncompliance

constitutes a violation of the Clean Water Act.” The

Port now argues that the ISGPs in fact did not comply

with the Act. The Port could have challenged the

permits before the Washington State Pollution

Control Hearings Board. See Wash. Rev. Code.

§ 43.21B.110(1)(c).

Had the Board issued an

unfavorable decision, the Port could have sought

review in state court. See id. § 43.21B.180. As we will

see, the Port availed itself of just that process when it

came to the 2020 ISGP.

But the Port brought no such challenge to the

stormwater regulations in the 2010 and 2015 ISGPs.

And because it did not, it lost “forever the right to do

so.” Public Int. Rsch. Grp. of N.J., Inc., 913 F.2d at 78

(quoting Texas Mun. Power Agency v. Administrator

of U.S. EPA, 836 F.2d 1482, 1484 (5th Cir. 1988)). The

conditions in the 2010 and 2015 ISGPs are valid and

enforceable, and the Port may be liable for discharges

in violation of their terms.

III

Finally, we turn to the 2020 ISGP. Soon after that

permit was issued, several parties, including

17a

Soundkeeper and the Port, appealed it to the

Washington State Pollution Control Hearings Board.

See Puget Soundkeeper All. v. Department of Ecology,

PCHB No. 19-089c, 2021 WL 1163243 (Mar. 23, 2021).

In March 2021, several months after the district

court’s partial summary judgment order, the Board

issued a decision in which it agreed with the Port that

“Ecology’s deletion of the ‘[o]nly those portions of the

facility’ phrase from the federal regulation does not

change the fact that only specified actions are listed

in the permit coverage section” and that “Ecology’s

claim that the 2020 ISGP covers the entire

transportation facility is without support from the

plain language of the permit.” Id. at *9.

We asked the parties to file supplemental briefs

addressing the preclusive effect, if any, of the Board’s

decision. The Port argued that because the decision

“addressed the same legal issue before this Court, it

should be given preclusive effect” as a matter of issue

preclusion. For its part, Soundkeeper argued that the

Port had forfeited any argument for issue preclusion

and that, in any event, because the Board’s decision

was issued after this court assumed jurisdiction over

the appeal, any preclusive effect is barred by the

priority-of-action rule, under which “the court which

first gains jurisdiction of a cause retains the exclusive

authority to deal with the action until the controversy

is resolved.” Sherwin v. Arveson, 96 Wash.2d 77, 633

P.2d 1335, 1337 (1981).

The Board’s decision was not Washington’s last

word on the interpretation of the 2020 ISGP. After

the parties filed their supplemental briefs in this

court, the Washington Court of Appeals reversed the

Board’s decision. Puget Soundkeeper Alliance, 545

P.3d at 333. Paralleling the reasoning we have

18a

employed in construing the 2010 and 2015 permits,

it held that “if a transportation facility requires

coverage under the 2020 permit because it conducts

vehicle maintenance, equipment cleaning, or airport

deicing operations, coverage under the permit applies

to the entire transportation facility, not just limited

areas.” Id. at 346. The Port has petitioned for review

of that decision in the Washington Supreme Court,

and the petition remains pending.

The district court has not had an opportunity to

consider the effect of the decision of the Washington

Court of Appeals, the pending petition before the

Washington Supreme Court, or the outcome of any

potential remand to the Board. Rather than address

those issues in the first instance, we vacate the

district court’s decision insofar as it resolved the scope

of the 2020 ISGP, and we remand for further

consideration. On remand, the district court may, in

its discretion, evaluate how best to address the risk of

piecemeal litigation and conflicting judgments, and it

may consider any arguments that it determines to be

properly presented to it, including arguments based

on issue preclusion or the priority-of-action rule.

VACATED in part, REVERSED in part, and

REMANDED.

O’SCANNLAIN,

Circuit

Judge,

specially

concurring:

While I concur in the Opinion of the Court because

it faithfully follows Ninth Circuit precedent, I write

separately to address my concern, ever since 1996,

that such precedent is flawed, not only because it

created a circuit split at the time, but because it

continues to expand citizen standing in a way

Congress never intended.

19a

The precedent on which the Opinion correctly

relies is Northwest Environmental Advocates v. City

of Portland, 56 F.3d 979 (9th Cir. 1995) (“NWEA II”).

If NWEA II did not apply, private citizens such as

Puget Soundkeeper Alliance would have no standing

to sue as to that portion of the case dealing with

stormwater discharges from the Wharf.

At the time that NWEA II was published, I and

several other colleagues objected to its holding, noting

that “any citizen will now be permitted to bring a

lawsuit at government expense for the enforcement of

state water quality standards that have not been

translated into effluent limitations in federal

permits.” Nw. Envtl. Advocates v. City of Portland, 74

F.3d 945, 946 (9th Cir. 1996) (O’Scannlain, J.,

dissenting from the denial of rehearing en banc)

(“NWEA II En Banc Dissental”).

I wrote that “the holding in NWEA II directly

conflicts with the Second Circuit’s decision in Atlantic

States Legal Foundation v. Eastman Kodak, 12 F.3d

353 (2d Cir. 1993).” NWEA II En Banc Dissental, 74

F.3d at 948. This circuit split remains, as the Second

Circuit has never reversed itself, and may be a source

of ongoing confusion to parties, such as the Port of

Tacoma, which reasonably cited Atlantic States, in

supplemental briefing, for its holding that Congress

authorized states to enact standards on wastewater

effluent stricter than those mandated by the CWA

and federal EPA regulations, but it only authorized

enforcement of those stricter standards by states or

EPA, not citizens.

Indeed, the holding of NWEA II substantially

altered the regulatory enforcement scheme of the

Clean Water Act in a way that was not envisioned by

Congress. As I objected at the time:

20a

“It should go without saying that the

environment faces real and growing dangers

that warrant protective measures and

challenge us to develop innovative solutions.

Nevertheless, by allowing citizens to enforce

standards that Congress specifically allocated

to government agencies to monitor, the court

has upset the delicate balance envisioned by

Congress in its promulgation of the current

enforcement regime for environmental law.

The result promises to invite excessive, costly,

and counterproductive citizen suits, funded by

the taxpayers, for the enforcement of standards

that are imprecise and astronomically costly to

the municipalities affected.”

NWEA II En Banc Dissental, 74 F.3d at 946.

This objection is as strong today as it was in 1996.

While Judge Miller’s Opinion correctly applies NWEA

II in dealing with the citizen-suit standing issue,

I continue to believe that such precedent

unfortunately goes beyond what Congress intended.

21a

[2020 WL 6445825]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PUGET

SOUNDKEEPER

ALLIANCE,

Plaintiff,

APM TERMINALS

TACOMA, LLC, et al.,

Defendants.

CASE NO. C17-5016

BHS

ORDER GRANTING

DEFENDANT’S

MOTION FOR

PARTIAL SUMMARY

JUDGMENT AND

MOTION TO SEAL,

DENYING WITHOUT

PREJUDICE

DEFENDANT’S

MOTION IN LIMINE,

AND DENYING

DEFENDANT’S

MOTION FOR LEAVE

TO SUPPLEMENT

THE RECORD

This matter comes before the Court on Defendant

Port of Tacoma’s (“Port”) motion for partial summary

judgment, Dkt. 176, motion to seal, Dkt. 281, motion

in limine, Dkt. 283, and motion for leave to

supplement the record, Dkt. 299. The Court has

considered the pleadings filed in support of and in

opposition to the motions and the remainder of the

file and hereby rules as follows:

22a

I. PROCEDURAL HISTORY

On June 13, 2018, Plaintiff Puget Soundkeeper

Alliance (“Soundkeeper”) filed a third amended

complaint bringing a citizen suit under Section 505 of

the Clean Water Act (“CWA”) as amended, 33 U.S.C.

§ 1365, against Defendants APM Terminals Tacoma,

LLC (“APMT”), the Port, SSA Marine, Inc., and SSA

Terminals, LLC. Dkt. 109.

On November 15, 2018, the Port filed a motion for

summary judgment requesting that the Court dismiss

Soundkeeper’s “claims arising from stormwater

discharges to the Wharf.” Dkt. 176 at 18.

On November 30, 2018, the Washington Public

Ports Association (“WPPA”) and the Washington

Maritime Federation (“WMF”) (collectively “Amici”)

filed a motion for leave to file an amici curiae brief.

Dkt. 182.

On December 3, 2018, Soundkeeper and

Defendants SSA Marine, Inc. and SSA Terminals,

LLC (collectively “SSA”) responded to the Port’s

motion for summary judgment. Dkt. 185. On

December 7, 2018, the Port replied. Dkt. 189.

On May 23, 2019, the Court granted WPPA and

WMF’s motion, renoted the pending dispositive

motions, and requested the parties’ positions on

whether the Court should invite an amicus curiae

brief from the Washington Department of Ecology

(“Ecology”). Dkt. 252.

On June 10, 2019, the Court invited Ecology to

submit an amicus brief. Dkt. 259. On August 16,

2019, Ecology filed a brief. Dkt. 269. On August 30,

2019, Soundkeeper, the Port, and SSA responded.

Dkts. 275, 276, 279.

23a

Also on August 30, 2019, the Port filed a motion to

seal, Dkt. 281, and a motion in limine, Dkt. 283.

On September 6, 2019, Ecology, Soundkeeper, the

Port, and SSA replied to the responses to Ecology’s

amicus brief. Dkts. 290, 291, 292, 293.

On September 16, 2019, Soundkeeper responded

to the Port’s motion in limine. Dkt. 296.

On January 28, 2020, the Port notified the Court

of “administrative appeals filed with the State of

Washington Pollution Control Hearings Board

(“Board”) concerning the new Industrial Stormwater

General Permit effective January 1, 2020 (“2020

ISGP”).” Dkt. 298 at 1.

On August 6, 2020, the Port filed a motion to

supplement the record. Dkt. 299. On August 17,

2020, Soundkeeper responded. Dkt. 301. On August

21, 2020, the Port replied. Dkt. 303.

II. FACTUAL BACKGROUND

At issue in this case are industrial stormwater

discharges at a large marine cargo terminal

(“Terminal”) used for ship unloading and cargo

distribution. The Court will address the stormwater

permitting process in general and then the facts of

this case.

A. The Federal Statutes

The CWA is intended to “restore and maintain the

chemical, physical, and biological integrity of the

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

the CWA makes it unlawful to discharge any

pollutant from a point source to navigable waters

without a permit. Id. §§ 1311(a), 1362(12). The

National Pollutant Discharge Elimination System

(“NPDES”) program is “[a] central provision of the

Act” requiring that “individuals, corporations, and

24a

governments secure [NPDES] permits before

discharging pollution . . . .” Decker v. Nw. Envtl. Def.

Ctr., 568 U.S. 597, 602 (2013).

To achieve these goals, the CWA “anticipates a

partnership between the States and the Federal

Government.” Arkansas v. Oklahoma, 503 U.S. 91,

101 (1992); Aminoil U. S. A., Inc. v. Cal. State Water

Res. Control Bd., 674 F.2d 1227, 1229–30 (9th Cir.

1982) (the CWA created a “scheme of cooperative

federalism” and “a ‘delicate partnership’ between

state and federal agencies” (citation omitted)). Under

this model of cooperative federalism, the

Environmental Protection Agency (“EPA”) sets

requirements for CWA programs, and then delegates

management of those programs to the states.

Aminoil, 674 F.2d at 1229–30. Delegated states may

then issue NPDES permits. 33 U.S.C. § 1342(b).

Subject to federal approval, states can impose

“requirements [that] are more stringent” than

required by EPA. 40 C.F.R. § 123.1(i)(1). However, if

a “State program has greater scope . . . than required

by Federal law the additional coverage is not part of

the Federally approved program.” Id. § 123.1(i)(2).

“For example, if a State requires permits for

discharges into publicly owned treatment works,

these permits are not NPDES permits.” Id.

As originally enacted, the CWA regulated

virtually all discharges, including all stormwater

discharges. Decker, 568 U.S. at 602. For stormwater,

however, EPA quickly found it impracticable to

regulate the “countless owners and operators of point

sources throughout the country.” Id. As one court

observed, EPA was facing “potentially millions of

NPDES permits,” because “[p]ractically speaking,

rain water will run downhill, and not even a law

25a

passed by the Congress of the United States can stop

that.” Hughey v. JMS Dev. Corp., 78 F.3d 1523, 1530

(11th Cir. 1996). Congress, in response to this

problem (and EPA’s refusal to address millions of

stormwater discharges), amended the CWA in 1987 to

“exempt from the NPDES permitting scheme most

‘discharges composed entirely of stormwater.’”

Decker, 568 U.S. at 603 (quoting 33 U.S.C.

§ 1342(p)(1)). Instead, Congress decided that only

certain stormwater discharges require a permit,

including (as relevant here), discharges “associated

with industrial activity.” 33 U.S.C. § 1342(p)(2)(B).

Congress did not define “associated with

industrial activity” and entrusted EPA to do so.

Decker, 568 U.S. at 604; 33 U.S.C. § 1342(p)(4)

(instructing EPA to issue regulations governing

industrial stormwater discharges).

EPA issued

regulations that identified industrial activities by

standard industrial classifications. Relevant here,

EPA included transportation facilities that have

“vehicle maintenance shops, equipment cleaning

operations, or airport deicing operations.” 40 C.F.R.

§ 122.26(b)(14)(viii). EPA’s regulations explain that

“[o]nly those portions of the facility that are either

involved in vehicle maintenance (including vehicle

rehabilitation, mechanical repairs, painting, fueling,

and lubrication), equipment cleaning operations, [or]

airport deicing operations . . . are associated with

industrial activity.” Id.

Congress also included a second phase of

stormwater regulation and gave EPA the discretion to

increase the scope of stormwater discharges that are

regulated under the CWA. 33 U.S.C. § 1342(p)(5)–(6).

EPA was first required to study potential stormwater

sources in consultation with the states.

Id.

26a

§ 1342(p)(5). Congress then authorized EPA (in

consultation with the states) to use the results of that

study to issue regulations governing any additional

stormwater sources that should be regulated under

the CWA. Id. EPA completed that process in 1999,

issuing the “Phase II” rule, “mandating that

discharges from small municipal separate storm

sewer systems and from construction sites between

one and five acres in size be subject to the permitting

requirements of the [NPDES]” and “preserv[ing]

authority to regulate other harmful stormwater

discharges in the future.” Envtl. Def. Ctr., Inc. v. U.S.

EPA, 344 F.3d 832, 840 (9th Cir. 2003).

EPA’s Phase II regulations explain that EPA may

add, on a case-by-case basis, other stormwater

discharges (or categories of discharges) in specific

“geographic areas” based on a determination that the

discharge “contributes to a violation of a water quality

standard or is a significant contributor of pollutants

to waters of the United States.”

40 C.F.R.

§ 122.26(a)(9)(i)(D). In its description of the program,

EPA explains that state regulation (with EPA

approval) of this “reserved category” of discharges

would be considered to be within the “scope” of the

federally approved program. 64 Fed. Reg. 68,722,

68,781 (Dec. 8, 1999). Under this statutory scheme,

Amici assert that, “[a]s of this date, EPA has not

extended the CWA to include other stormwater

discharges on docks and wharfs.” Dkt. 182-4 at 11.

B. Delegation to Washington

In 1974, EPA authorized Ecology to administer the

NPDES program in Washington. See 39 Fed. Reg.

26,061 (July 16, 1974); RCW 90.48.260. Under state

law, Ecology also administers the State Water

Pollution Control Act (RCW Chapter 90.48) which

27a

makes it illegal for “any person” to discharge

pollutants into waters of the state without a permit.

RCW 90.48.080, 90.48.160.

For industrial

stormwater, Ecology decided to enforce both state and

federal requirements using a general permit that

covers a broad range of activities. See WAC 173-226010 (regulations establishing “state general permit

program” and explaining that “[p]ermits issued under

this chapter are designed to satisfy the requirements

for discharge permits under [the CWA] . . . and the

state law governing water pollution control (chapter

90.48 RCW).”).

Ecology’s Industrial Stormwater General Permit

(“ISGP”) reflects this dual state and federal function.

As the ISGP states, it is both a “National Pollution

Discharge Elimination System (NPDES) and State

Waste Discharge General Permit” that was issued

“[i]n compliance with the provisions of The State of

Washington Water Pollution Control Law, Chapter

90.48 Revised Code of Washington and The Federal

Water Pollution Control Act (The Clean Water Act)

Title 33 United States Code, Section 1251 et seq.”

Dkt. 51-1 at 2.

When Ecology issued the ISGP in 2009, it listed

facilities that conducted industrial activities in a

table. Dkt. 270-1 at 7. The last category of activities

requiring permit coverage were “[t]ransportation

facilities which have vehicle maintenance shops,

material handling facilities, equipment cleaning

operations, or airport deicing operations . . . .” Id. at

8. Relevant to the instant dispute, this description

does not include the limiting language of 40 C.F.R.

§ 122.26(b)(14)(viii) that “[o]nly those portions of the

facility that are either involved in vehicle

maintenance (including vehicle rehabilitation,

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mechanical

repairs,

painting,

fueling,

and

lubrication), equipment cleaning operations, [or]

airport deicing operations . . . are associated with

industrial activity.” Id. Based on this exclusion of

language, Ecology contends that “once coverage is

triggered at a transportation facility, the ISGP

applies to all areas of industrial activity at the

facility, rather than only those areas where vehicle

maintenance, equipment cleaning, or airport deicing

occur.” Dkt. 269 at 3. The permit defines “facility”

and “industrial activity” as follows:

Facility means any NPDES “point source”

(including land or appurtenances thereto) that

is subject to regulation under the NPDES

program. See 40 CFR 122.2.

Industrial Activity means (1) the 11

categories of industrial activities identified in

40 CFR 122.26(b)(14)(i-xi) that must apply for

either coverage under this permit or no

exposure certification, (2) any facility

conducting any activities described in Table 1,

and (3) identified by Ecology as a significant

contributor of pollutants. Table 1 lists the 11

categories of industrial activities identified in

40 CFR 122.26(b)(14)(i-xi) in a different format.

Dkt. 270-1 at 54.

Ecology issued a companion fact sheet to

summarize changes in the proposed 2010 permit.

Relevant to the instant matter, Ecology stated that

“[s]tormwater may become contaminated by

industrial activities as a result of . . . contact with

materials during loading, unloading or transfer from

one location to another . . . .” Dkt. 270-2 at 10. Under

a section specific to water transportation facilities,

29a

Ecology identified potential sources of additional

pollutants as “loading/unloading areas” and potential

pollutants included “fuels and machinery lubricants,

solvents, paints, heavy metals, and paint stripping

wastes.” Id. at 38.

Furthermore, Ecology issued an ISGP frequently

asked questions (“FAQ”) document. Dkt. 185-1.

Ecology stated that the “document is intended as

guidance only, and does not modify or otherwise

change the permit requirements” and “[i]f there is any

discrepancy between this guidance and the [ISGP],

the permit requirements supersede this guidance.”

Id. at 2. Relevant to the instant dispute, the

document provides a question and answer as follows:

My transportation facility has vehicle

maintenance activity and therefore requires

permit coverage. Does the permit apply to the

entire footprint of the facility, or just to the area

where we conduct vehicle maintenance

activity?

The entire footprint of the industrial facility.

Once a transportation facility has permit

coverage, the permit conditions for sampling,

inspection and stormwater management

practices are required in all areas of industrial

activity, rather than only those areas where

vehicle maintenance, equipment cleaning and

airport de-icing occur.

Id.

On October 21, 2009, Ecology issued a response to

public comments. In the summary section, Ecology

stated that “[t]he most significant changes are

summarized below. The legal and technical basis for

changes related to each public comment is included,

30a

as appropriate.” Dkt. 280-13 at 7. Regarding

Ecology’s decision to exclude language from the table

of facilities that conduct industrial activities, Ecology

provided as follows:

Several commentors requested clarification

on the permit requirements for facilities in the

transportation sector (SIC codes 40XX, 41XX,

42XX, 43XX, 44XX, 45XX, and 5171). Ecology

reviewed the applicable federal regulations,

EPA Multi-Sector General Permit, discussed

the issue with EPA (Region 10 and

Headquarters). Changes have been made to

Table 1 to improve clarity. One of these

changes is to include “material handling

facilities” in the criteria for permit coverage at

transportation facilities [40 CFR 122.26(b)(14)].

Once a transportation facility obtains permit

coverage, the specific areas and stormwater

discharges authorized by the permit become

site specific.

Ecology disagrees with one

commentor’s suggestion that maintenance

activity conducted away from the maintenance

shop is not covered under the permit. The

intent of the ISWGP is to cover all vehicle

maintenance activities at industrial facilities,

not just those performed at the physical

location of the shop. Since this section of the

permit is to specify which type of facilities

require permit coverage, Ecology has decided to

take the approach in EPA’s MSGP and not

include the “only those portions of the facility

that are involved in vehicle maintenance . . .”

statement requested by several commentors.

Ecology also added definitions of “vehicle

31a

maintenance” and “material handling” based

on EPA’s Final Phase I Stormwater Rule.

Id.1

In June of 2010, Ecology permit managers verbally

told two port managers that the presence of a vehicle

maintenance shop anywhere on port property would

trigger ISGP coverage on all port property. Dkt. 1822 at 5. On July 27, 2010, WPPA sent Ecology a letter

stating its concerns regarding the “implementation

and enforcement” of the new ISGPs. Id. The ports

objected to this expansive reading because the

“implications are extreme.” Id. It argued that

expansion would require “implementing best

management practices, including stormwater

treatment, on hundreds or thousands of acres of

property (versus a few areas where maintenance

typically occurs)” and “has major ramifications on a

port’s ability to comply.” Id.

On March 10, 2011, Ecology responded. Id. at 9–

10. Ecology stated that “[o]nce a facility has [ISGP]

permit coverage, the Permit’s sampling, inspection,

and stormwater management practices are required

in all areas of industrial activity - rather than only

those areas where vehicle maintenance, equipment

cleaning, and airport deicing occur.” Id. at 9. Ecology

instructed the ports that they needed to take the

The inclusion of “material handling” facilities was

challenged and subsequently removed from the ISGP. Copper

Dev. Assoc., Inc. v. State of Washington, PCHB Nos. 09-135

through 09-141, Order on Summ. J., 2011 WL 62915, *4 (Wash.

Pol. Ctrl. Bd. Jan. 5, 2011) (“The [subsequent] change eliminated

permit coverage requirements for transportation facilities that

have material handling facilities, in order to make the permit

term consistent with the applicable definition in federal

regulations. 40 C.F.R. § 122.26(b)(14)(viii).”).

32a

necessary steps to “implement the Permit

requirements on all areas of industrial activity as

soon as possible” and that Ecology would use its

“enforcement discretion” with respect to the areas

outside vehicle maintenance areas to allow the ports

time to comply. Id. This enforcement discretion

would last until June 1, 2011. Id. Relevant to the

instant dispute, Ecology did not elaborate on the term

“industrial activity” for areas other than vehicle

maintenance, equipment cleaning, and airport

deicing.

On November 6, 2014, Ecology’s Water Quality

Specialist Jeff Killelea (“Killelea”) sent an email to

another Ecology employee discussing the relevant

amendment. Killelea’s explanation was as follows:

• Prior to 2010, the ISGP mirrored the 40 CFR

language regarding transportation facilities,

which stated:

o Only those portions of the facility that are

either involved in vehicle maintenance

(including vehicle rehabilitation, mechanical

repairs, painting, fueling and lubrication),

equipment cleaning operations, airport deicing

operations or which are otherwise identified

under one of the other 11 categories of

industrial activities listed in this appendix are

associated with industrial activity.

o This had the practical effect of excluding

most

material

handling,

storage,

loading/unloading areas from the ISGP’s

sampling and BMP requirements; even though

stormwater from these areas is highly

contaminated with zinc, copper, sediment,

petroleum, etc.

33a

To address this loophole, the “only hose

portions . . .” language was struck from the draft

2010 ISGP. We received public comments from

Ports and consultants requesting that the

language be reinstated.

• WQ PMT and regional stormwater staff

carefully considered the public comments, policy

issues, etc., and decided to issue the final 2010

ISGP without the exclusion language (based on

state authority).

This effectively required

permit coverage at the entire industrial facility

(entire port/rail yard/tank farm, etc.), not just the

maintenance areas.

• WQP management met with the Ports to

discuss this issue in 2010, and provided a follow

up letter that extended “enforcement discretion”

until the end of the year - to allow Ports and their

tenants to update Stormwater Plans, adjust

sampling locations, etc.

Dkt. 280-20 at 3–4 (emphasis added).

On December 3, 2014, Ecology issued a document

summarizing and responding to some public

comments on the proposed 2015 ISGP. Dkt. 185-2.

Relevant to the instant matter, the document

provides as follows:

Summary of the Range of Comments:

• EPA’s definition of industrial activities

associated with “transportation facilities” limits

NPDES coverage to specific portions of a

transportation facility:

o (viii} Transportation facilities classified

as Standard Industrial Classifications 40, 41,

42 except 4221-25}, 43, 44, 45, and 5171 which

have vehicle maintenance shops, equipment

34a

cleaning operations, or airport deicing

operations. Only those portions of the facility

that are either involved in vehicle maintenance

(including vehicle rehabilitation, mechanical

repairs, painting, fueling, and lubrication},

equipment cleaning operations, airport deicing

operations, or which are otherwise identified

under paragraphs (b)(14) (i)-(vii) or (ix)-(xi) of

this section are associated with industrial

activity.

• The Draft 2015 ISGP and Draft 2015 Fact

Sheet continue the omission of the limiting

language in the Table 1 summary of the 11

categories of industrial activities identified in 40

CFR 122.26(b)(14)(i-xi).

• While this omission may seem innocuous

given the ISGP’s directive that Table 1 is merely

40 CFR 122.26(b)(14)(i-xi) in a different format,

the years since the promulgation of the 2010 ISGP

have shown that the omission has led to profound

confusion and significant consequences that were

never identified, analyzed, or subjected to notice

and other required procedures in the context of the

2010 ISGP.

Response to the Range of Comments:

Ecology has considered the comment and

has decided to retain the omission of the

following

statement

from

CFR

122.26(b)(14)(viii): “Only those portions of the

facility that are either involved in vehicle

maintenance (including vehicle rehabilitation,

mechanical repairs, painting, fueling, and

lubrication), equipment cleaning operations,

airport deicing operations, or which are

35a

otherwise identified under paragraphs (b)(14)

(i)-(vii) or (ix)-(xi) of this section are associated

with industrial activity.” No change was made

to the final ISGP in response to this comment.

Id. at 78.

C. The Facility

The Port owns the 137-acre Terminal at issue in

this matter. While the majority of the Terminal is not

at issue in this matter, the parties dispute a 12.6-acre

section commonly referred to as the Wharf. Here, five

enormous ship-to-shore cranes load and unload large

shipping containers from docked vessels. See Dkt.

176 at 2–3.

In March 1983, the Port leased the Terminal to

APMT. As part of its operation of the Terminal,

APMT applied for and received an ISGP. Dkt. 51-1.

On October 2, 2017, Ecology terminated APMT’s

coverage under the ISGP and granted the Port

coverage under the permit. Dkt. 82-3. Ecology

informed the Port that it had 30 days to appeal the

general permit’s applicability as to the Port. Id. at 823 at 3. Also, on that date, SSA began its lease with

the Port for the Terminal.

On October 23, 2017, the Port signed Ecology

Agreed Order #15434 (the “Agreed Order”). Dkt.

82-4. The Agreed Order required the Port, subject to

Ecology review, to design, construct, and have

operational a stormwater treatment system. Id. at

§ IV. The Port has prepared, and Ecology approved,

an Engineering Report for a stormwater treatment

system for the Terminal. Dkt. 82-6.

The Port’s Stormwater Pollution Prevention Plan

(“SWPPP”) includes a sampling plan and

documentation regarding areas where the Port does

36a

not collect stormwater samples. Relevant to the

instant matter, the October 2017 SWPPP provides as

follows:

The type of activities that occur along the

wharf are substantially identical to the

activities that occur in the upland drainage

areas associated with [basin] WS1 and [basin]

WS2. In addition, collecting samples from the

wharf discharge points that are representative

of industrial activities in the area would require

access underneath the deck or along the edge of

the wharf, which is considered unsafe due to

tides and/or ship activity and container

offloading activity. As such, discharges from

the deck drains, scuppers, and power trench

and utility vault drains along the wharf are not

sampled since they are substantially identical

to the discharges from their respective upland

drainage areas contributing to WS1 and WS2;

and because the ISGP does not require

sampling in unsafe conditions.

The industrial activities, site conditions,

potential pollutant sources, expected pollutant

concentrations,

and

implemented

best

management practices (BMPs) associated with

the WS1 and WS2 drainage areas are

substantially identical. As such, discharges

from WS2 will not be sampled since they are

substantially identical to WS1 discharges.

Dkt. 87-30 at 4. The Port’s June 2018 SWPPP

provides in relevant part as follows:

Discharges from the deck drains are considered

to be substantially identical to those monitored

from the upland areas of WS2 and are therefore

37a

exempt from monitoring in accordance with

S4.B.2.c requirements.

The deck drain

discharge points are considered to discharge

substantially identical effluent to the WS2

discharge location as activities along the wharf

are similar or less intensive than those

conducted in the upland. Activities in the

upland portion of the basin include hostler

truck traffic, container handling, and mobile

vehicle and equipment maintenance. Activities

in the wharf area of the basin west of the power

trench include hostler truck traffic, container

handling, and crane maintenance. Material

storage and mobile fueling are generally not

performed in the area. As discussed previously,

the hostler trucks that access the wharf area

are exclusively used at the terminal and do not

travel outside Basin B, which should reduce

[total suspended solids] and turbidity in

stormwater discharges relative to the other

Terminal basins subject to over the road traffic

and potentially track-on from offsite.

Dkt. 186-1 at 7. The Port’s October 2018 SWPPP

states that “[n]o activities described in 40 CFR

§ 122.26(b)(14)(viii) are conducted on the wharf and

the wharf does not discharge stormwater associated

with industrial activity, as defined in 40 CFR

§ 122.26(b)(14)(i)-(xi).” Dkt. 178-5 at 9.

38a

III. DISCUSSION

A. Nondispositive Motions

The Port filed a motion to seal and a motion in

limine. First, “[a]ny motion in limine must include a

certification that the movant has in good faith

conferred or attempted to confer with other affected

parties in an effort to resolve which matters really are

in dispute. A good faith effort to confer requires a

face-to-face meeting or a telephone conference.” Local

Rules W.D. Wash. LCR 7(d)(4).

Regarding the motion in limine, Soundkeeper

argues that the Court should deny the Port’s motion

in limine because it failed to file a certificate that it

conferred in good faith to resolve the issue without

Court intervention. Dkt. 296. The Court agrees and

therefore denies the Port’s motion. Soundkeeper also

argues that the Court should preclude the Port from

filing any additional motions in limine because all

motions in limine must be filed in one brief. Id. at 7

(citing Local Rules W.D. Wash. LCR 7(d)(4)). The

Court declines to order such relief, but it informs the

Port that filing another motion without conferring

may result in sanctions.

Regarding the motion to seal, the Port moves to

seal certain exhibits because they may contain

privileged information. Dkt. 281. No party responded

to the Port’s motion. The Court agrees with the Port

to the extent that the documents should be

provisionally sealed pending further rulings on

whether the documents are privileged or relevant.

Therefore, the Court grants the Port’s motion and

provisionally seals the requested documents.

39a

B. Summary Judgment

The Port moves for partial summary judgment

arguing that stormwater discharges from the Wharf

“are not ‘discharges associated with industrial

activities’ pursuant to EPA’s regulations (40 C.F.R.

§ 122.26(b)(14)(viii)) and are therefore not subject to

the federal NPDES program or citizen suit

enforcement of the NPDES program.” Dkt. 176 at 1.

1. Standard

Summary judgment is proper only if the pleadings,

the discovery and disclosure materials on file, and any

affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a).

The moving party is entitled to judgment as a matter

of law when the nonmoving party fails to make a

sufficient showing on an essential element of a claim

in the case on which the nonmoving party has the

burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986). There is no genuine issue of fact for trial

where the record, taken as a whole, could not lead a

rational trier of fact to find for the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 586 (1986) (nonmoving party must

present specific, significant probative evidence, not

simply “some metaphysical doubt”). Conversely, a

genuine dispute over a material fact exists if there is

sufficient evidence supporting the claimed factual

dispute, requiring a judge or jury to resolve the

differing versions of the truth. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Serv.,

Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630

(9th Cir. 1987).

40a

The determination of the existence of a material

fact is often a close question. The Court must consider

the substantive evidentiary burden that the

nonmoving party must meet at trial—e.g., a

preponderance of the evidence in most civil cases.

Anderson, 477 U.S. at 254; T.W. Elec. Serv., Inc., 809

F.2d at 630. The Court must resolve any factual

issues of controversy in favor of the nonmoving party

only when the facts specifically attested by that party

contradict facts specifically attested by the moving

party. The nonmoving party may not merely state

that it will discredit the moving party’s evidence at

trial, in the hopes that evidence can be developed at

trial to support the claim. T.W. Elec. Serv., Inc., 809

F.2d at 630 (relying on Anderson, 477 U.S. at 255).

Conclusory, nonspecific statements in affidavits are

not sufficient, and missing facts will not be presumed.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888–89

(1990).

2. Permit’s Scope

“NPDES permits are treated like any other

contract.” Nat. Res. Def. Council, Inc. v. Cty. of L.A.,

725 F.3d 1194, 1204 (9th Cir. 2013). “If the language

of the permit, considered in light of the structure of

the permit as a whole, ‘is plain and capable of legal

construction, the language alone must determine the

permit’s meaning.’ . . . . If the permit’s language is

ambiguous, we may turn to extrinsic evidence to

interpret its terms.” Id. (quoting Piney Run Pres.

Ass’n v. Cty. Comm’rs of Carroll Cty., Md., 268 F.3d

255, 270 (4th Cir. 2001)).

In this case, the first question is the scope of the

ISGP regarding industrial activities at the Port’s

wharf. The Port moved for summary judgment

arguing that stormwater discharges from the wharf

41a

“are not ‘discharges associated with industrial

activities’ pursuant to 40 C.F.R. § 122.26(b)(14)(viii)

and are therefore not subject to the federal NPDES

program or citizen suit enforcement of the NPDES

program.” Dkt. 176 at 18. The Port recognized that

Ecology may issue regulations beyond the scope of the

federal NPDES program, but there is no private right

of action for violations of such additional regulations.

Id. at 17. SSA also argues that wharf discharges are

beyond the scope of the federal program and that

“even if Ecology had included stormwater sampling in

wharf areas as part of the scope of the ISGP—which

it has not—PSA could not bring a citizen suit

enforcing such a regulation.” Dkt. 184 at 3.

Soundkeeper responds that it may enforce all

conditions of an NPDES permit in an enforcement

proceeding and that the Port and SSA’s arguments

are an untimely and improper collateral attack on the

scope of the permit. Dkt. 185. Soundkeeper relies

primarily on Ecology’s FAQ document and December

2014 summary of comments to support its position

that the ISGP applies to all areas of the Port,

including the wharf. Id. at 8–9.

The Port replies that “it is irrelevant how Ecology

might interpret the ISGP or exercise independent

state authority” to expand the scope of the ISGP. Dkt.

189 at 8. The Port first relies on an EPA final rule

that provides in relevant part that “[i]f a State, Tribe,

or local government were to require a permit for

discharges exempt from the Clean Water Act NPDES

program requirements, those permit requirements

would not be considered part of an NPDES program.

See 40 CFR 123.1(i)(2).” 71 Fed. Reg. 33628-01,

*33635. Regarding the FAQ document, the Port

asserts that the document specifically states that it

42a

does not modify the ISGP and that Ecology’s answer

only states that permit requirements only apply to

areas where “industrial activity” occurs without

further defining that term. Dkt. 189 at 8.

Based on the parties’ dispute regarding the

interpretation of the ISGP, the Court invited Ecology

to file an amicus brief. Dkt. 252. Ecology asserts that

it “exercised its residual Clean Water Act authority

under 33 U.S.C. § 1342(p)(2)(E) when it elected to

extend the scope of ISGP coverage at transportation

facilities that are required to obtain an NPDES

permit under the Clean Water Act.” Dkt. 269 at 2.

Ecology’s claimed extension is that the ISGP applies

to “all areas of industrial activity” at the Port. Id. at

2–4.

The Port responds that Ecology’s position is not

supported by any evidence. Specifically, the Port

argues “Ecology’s amicus brief is unsupported by even

one document or declarant identifying when Ecology

supposedly made a policy decision to exercise such

authority, when it notified the public of this ‘decision’

or any analysis prepared to support such

designation.” Dkt. 279 at 1. For example, the Port

submits Ecology’s economic impact analysis (“EIA”)

for the proposed 2010 ISGP, and Ecology’s alleged

expansion is not described in the “Changes to the

Permit” section. Dkt. 280-5 at 9. Similarly, the Port

submitted Killelea’s 2014 email wherein he stated

that the scope of the permit was expanded “based on

state authority.” Dkt. 280-20 at 3.

SSA contends that Ecology’s position and

Killelea’s supporting declaration “are, at best,

revisionist history.” Dkt. 276 at 2. SSA relies on the

ISGP’s definition of industrial activities that cites and

incorporates the language of 40 CFR 122.26(b)(14)(i-

43a

xi) to conclude that the clear language of the ISGP

contradicts Ecology’s position. Id. at 2–4.

Soundkeeper responds, without much analysis,

and simply provides the conclusion that “the plain

language of the [ISGP] is not ambiguous.” Dkt. 275

at 4.

Ecology replied and clarified that it expanded the

scope of the permit under its residual state authority.

Dkt. 290. Ecology also argued that it properly

delegated this authority to Ecology employees and

that it need not consider certain factors in expanding

the scope of the ISGP with regard to transportation

facilities. Id. at 4–6. Ecology did not address SSA’s

argument regarding the incorporation of the federal

regulatory language in the specific definition of

industrial activity. Soundkeeper likewise ignores this

argument in its reply. Dkt. 293 at 3.

Turning to the law of contract interpretation, “[a]

written contract must be read as a whole and every

part interpreted with reference to the whole, with

preference given to reasonable interpretations.”

Klamath Water Users Protective Ass’n v. Patterson,

204 F.3d 1206, 1210 (9th Cir. 1999), opinion amended

on denial of reh’g, 203 F.3d 1175 (9th Cir. 2000).

“Whenever possible, the plain language of the

contract should be considered first.” Id.

In this case, the plain language of the ISGP

supports the Port and SSA’s positions. Although the

table listing industrial facilities does not include the

federal language, the specific definition of industrial

activities cites and incorporates this language. That

definition “means (1) the 11 categories of industrial

activities identified in 40 CFR 122.26(b)(14)(i-xi) that

must apply for either coverage under this permit” and

44a

“Table 1 lists the 11 categories of industrial activities

identified in 40 CFR 122.26(b)(14)(i-xi) in a different

format.” Dkt. 270-1 at 54. This is clear, unambiguous

language establishing that the ISGP relies on the

federal regulations and its “only those portions”

exclusionary definition as applied to transportation

facilities. Neither Soundkeeper nor Ecology provides

a persuasive argument undermining the ISGP’s

direct reference and incorporation of the federal

language. Therefore, the Court concludes that the

Port’s ISGP defines industrial activity as “[o]nly those

portions of the facility that are either involved in

vehicle maintenance (including vehicle rehabilitation,

mechanical

repairs,

painting,

fueling,

and

lubrication), equipment cleaning operations, airport

deicing operations, or which are otherwise identified

under paragraphs (b)(14) (i)–(vii) or (ix)–(xi) of this

section are associated with industrial activity.”

Although Ecology contends that it intended to

expand the scope of the ISGP, “courts must interpret

contracts, if possible, so as to avoid internal conflict.”

Trident Ctr. v. Conn. Gen. Life Ins. Co., 847 F.2d 564,

566 (9th Cir. 1988). Interpreting the ISGP as Ecology

contends would result in an internal conflict between

the table of industrial activities, Table 1, and the

statement “Table 1 lists the 11 categories of industrial

activities identified in 40 CFR 122.26(b)(14)(i-xi) in a

different format.” Dkt. 270-1 at 54. Ecology, as

drafter of the ISGP and aware of the confusing

conflict from public comments, Dkt. 185-2 at 78, fails

to harmonize its intent with its permit. Thus, the

Court must reject Ecology’s position regarding an

45a

expansive permit and grant the Port’s motion on the

clear language of the ISGP.2

3. Alternative Activities

Soundkeeper argues that even if the Court accepts

the Port’s position on the initial issue, the Port

engages in other industrial activities on the wharf

that

compel

compliance

with

stormwater

management. Dkt. 185 at 18–24. Soundkeeper relies

on section (b)(14)’s preamble that sets forth a nonexhaustive list of industrial activities such as

material handling and rail lines for carrying cargo.

Id. at 19–20. The problem, however, is that this list

of activities may not overcome the exclusionary

language in part (viii) that limits industrial activities

to “only those portions” of transportation facilities.

Ecology recognized this “loophole” and unsuccessfully

attempted to expand the scope of the ISGP by listing

“material handling activities.” The Court likewise

recognizes the controlling and specific limiting

language is set forth in part (viii) and rejects

Soundkeeper’s

argument

that

transportation

facilities are subject to regulation for the nonexhaustive list of activities set forth in the preamble.

Based on this conclusion, the Court also rejects

Ecology’s argument that loading and unloading of

containers at the wharf constitute industrial

activities subject to regulation. Dkt. 269 at 4–5.

Soundkeeper cites Puget Soundkeeper All. v.

Rainier Petroleum Corp., C14-0829JLR, 2015 WL

13655379 (W.D. Wash. Dec. 16, 2015) for the

proposition that this Court held that industrial

2 The Court denies the motion to supplement the record

because the additional evidence is irrelevant to the plain

language of the ISGP.

46a

activities other than vehicle maintenance and/or

equipment cleaning at a marine transportation

facility required stormwater management. Dkt. 185

at 21–22. This case, however, is neither controlling

nor persuasive because the regulated entity was both

a marine transportation facility and a petroleum

storage facility, which significantly expanded the

industrial activities that it had to monitor and

manage.

4. Regulated Activities

The Port moves for summary judgment on any of

Soundkeeper’s claims arising from stormwater

discharges at the wharf. Dkt. 176 at 18. Soundkeeper

responds in part that vehicle maintenance and/or

equipment cleaning occur on the wharf because the

large mechanical cranes are maintained and cleaned

in place on the wharf. Dkt. 185 at 24–25. To support

this argument, Soundkeeper has submitted a report

by Dr. Richard Horner citing grease and gear oil spills

observed during a site visit. Dkt. 187. The Port

counters that Soundkeeper’s reference to the cranes

as “equipment” is dispositive because the ISGP only

regulates “vehicle” maintenance and equipment

cleaning. Dkt. 189 at 2–3. The Court agrees with the

Port because equipment maintenance is not an

industrial activity under 40 C.F.R. 122.26(b)(14)(viii)

or the corresponding ISGP. Therefore, the Court

grants the Port’s motion on Soundkeeper’s claims

regarding discharges from the Port’s wharf.

IV. ORDER

Therefore, it is hereby ORDERED that Port’s

motion for partial summary judgment, Dkt. 176, and

motion to seal, Dkt. 281, are GRANTED, the Port’s

motion in limine, Dkt. 283, is DENIED without

47a

prejudice, and the Port’s motion for leave to

supplement the record, Dkt. 299, is DENIED.

Dated this 3rd day of November, 2020.

s/Benjamin H. Settle

BENJAMIN H. SETTLE

United States District Judge

48a

[561 F. Supp. 3d 1113]

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT TACOMA

PUGET

SOUNDKEEPER

ALLIANCE,

Plaintiff,

SSA TERMINALS,

LLC, et al.,

Defendants.

CASE NO. C17-5016

BHS

ORDER GRANTING

DEFENDANTS’

MOTION FOR

SUMMARY

JUDGMENT

This matter comes before the Court on

Defendants SSA Terminals (Tacoma), LLC

(“SSATT”) and SSA Terminals, LLC’s (“SSAT”)

(collectively “SSA”) motion for summary judgment.

Dkt. 317. The Court has considered the briefings

filed in support of and in opposition to the motion and

the remainder of the file and hereby grants the

motion for the reasons stated herein.

I. FACTUAL & PROCEDURAL BACKGROUND

A. Overview

As the parties are familiar with the extensive

history of this case, the Court provides the following

overview. This case is a citizen suit brought under

Section 505 of the Clean Water Act as amended, 33

U.S.C. § 1365. Plaintiff Puget Soundkeeper Alliance

(“Soundkeeper”) seeks, inter alia, a declaratory

judgment and injunctive relief for alleged violations

49a

of the CWA and the National Pollutant Discharge

Elimination System (“NPDES”) permit authorizing

discharges of pollutants from Defendants the Port of

Tacoma and SSA’s facility to navigable waters. Dkt.

254, Fourth Amended Complaint (“FAC”), ¶ 1.

At issue in this case are industrial stormwater

discharges at a large marine cargo terminal

(“Terminal”) used for ship unloading and cargo

distribution. The Port owns the 137-acre Terminal at

issue in this matter. While the majority of the

Terminal is not at issue, the parties dispute a 12.6acre section commonly referred to as the “Wharf.”

Here, five enormous ship-to-shore cranes load and

unload large shipping containers from docked vessels.

The Wharf is depicted below, as provided in the Port’s

motion for partial summary judgment:

50a

Dkt. 176 at 2.

51a

Soundkeeper alleges, in part, that SSA is in

violation of the NPDES permits that authorize

discharges of stormwater associated with industrial

activity and thus are in violation of Section 505 of the

CWA. FAC, ¶ 65.

B. Procedural History

On January 9, 2017, Soundkeeper filed a

complaint against Defendant APM Terminals

Tacoma, LLC (“APMT”) alleging ongoing violations of

APMT’s NPDES permit. Dkt. 1, ¶ 1. APMT was the

lessee of the Terminal at the time of the initial

complaint, and on November 28, 2017, Soundkeeper

filed a second amended complaint adding the Port of

Tacoma as a defendant, stating that the Port owns the

facility and that APMT leases the facility. Dkt. 75.

On June 13, 2018, Soundkeeper filed a third

amended complaint adding the Port’s new tenants,

Defendants SSA Marine, Inc. and SSAT. Dkt. 109.

On June 4, 2019, the Court granted Soundkeeper’s

motion for leave to amend, Dkt. 253, and

Soundkeeper filed its Fourth Amended Complaint,

dropping APMT and SSA Marine, Inc. as parties and

adding SSATT. Dkt. 254. Soundkeeper has settled

all of its claims in this case against APMT via a

consent decree. Dkt. 224.

The Port moved for partial summary judgment as

to Soundkeeper’s claims arising from stormwater

discharges from the Wharf. Dkt. 176. Soundkeeper

then filed a motion for partial summary judgment,

arguing that (1) the Port is liable for APMT’s

violations, (2) the Port is liable for Level 3 corrective

action requirements that occurred in 2013 and 2015,

(3) the Port is liable for failing to monitor discharges

from the Wharf, (4) the Port’s stormwater pollution

52a

prevention plans (“SWPPP”) are inadequate,

(5) Soundkeeper has standing to bring its claims, and

(6) the Court has subject matter jurisdiction over the

alleged violations. Dkt. 196. The Port responded and

filed a cross-motion for summary judgment to dismiss

Soundkeeper’s claim against it in its entirety. Dkt.

210.

SSA joined in the Port’s opposition to

Soundkeeper’s motion. Dkt. 209.

The Court granted the Port’s motion for partial

summary judgment, Dkt. 304, and granted in part

and denied in part the cross-motions for summary

judgment, Dkt. 305.

1. Relevant Court Orders

The Port filed a motion for partial summary

judgment requesting that the Court dismiss

Soundkeeper’s “claims arising from stormwater

discharges to the Wharf.” Dkt. 176 at 18. After

extensive briefing from the parties and amici, the

Court granted the Port’s motion. Dkt. 304. The Port

persuasively argued that stormwater discharges from

the Wharf are not “discharges associated with

industrial activities” pursuant to the Environmental

Protection

Agency’s

regulations

(40

C.F.R.

§ 122.26(b)(14)(viii)) and are therefore not subject to

the federal NPDES program or citizen suit

enforcement of the NPDES program.

EPA has empowered the Washington State

Department of Ecology to administer the NPDES

program in Washington. See 39 Fed. Reg. 26,061

(July 16, 1974); RCW 90.48.260. Under state law,

Ecology also administers the State Water Pollution

Control Act (RCW Chapter 90.48) which makes it

illegal for “any person” to discharge pollutants into

waters of the state without a permit. RCW 90.48.080,

53a

90.48.160.

For industrial stormwater, Ecology

decided to enforce both state and federal

requirements using a general permit that covers a

broad range of activities. See WAC 173-226-010

(regulation establishing “state general permit

program” and explaining that “[p]ermits issued under

this chapter are designed to satisfy the requirements

for discharge permits under [the CWA] . . . and the

state law governing water pollution control (chapter

90.48 RCW)”).

Ecology’s Industrial Stormwater General Permit

(“ISGP”) reflects this dual state and federal function.

As the ISGP states, it is both a “National Pollution

Discharge Elimination System (NPDES) and State

Waste Discharge General Permit” that was issued

“[i]n compliance with the provisions of The State of

Washington Water Pollution Control Law Chapter

90.48 Revised Code of Washington and The Federal

Water Pollution Control Act (The Clean Water Act)

Title 33 United States Code, Section 1251 et seq.”

Dkt. 51-1 at 2.

The Court thus had to determine the scope of the

ISGP issued to the Port regarding industrial activities

at the Wharf. The Court concluded that the ISGP

clearly and unambiguously relied on the federal

regulations, which includes the exclusionary

language in part (viii) that limits industrial activities

to “only those portions” of transportation facilities.

See Dkt. 304 at 20–22.

The Court rejected

Soundkeeper’s

argument

that

transportation

facilities are subject to regulation based upon the

federal regulation’s non-exhaustive preamble and

rejected Ecology’s argument that loading and

unloading of containers at the Wharf constitute

industrial activities subject to regulation.

54a

In sum, the Court agreed with the Port that

“equipment maintenance is not an industrial

activity under 40 C.F.R. 122.26(b)(14)(viii) or the

corresponding ISGP” and granted the Port’s motion

for partial summary judgment regarding claims

involving discharges from the Wharf. Id. at 23.

The Court also agreed with the Port’s cross-motion

for summary judgment, granting the Port’s motion

and dismissing Soundkeeper’s entire claim against

the Port. Dkt 305. While the Court

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