Amicus Curiae Brief — Port of Tacoma, et al., Petitioners v. Puget Soundkeeper Alliance

No. 24-350

In the

Supreme Court of the United States

PORT OF TACOMA; SSA TERMINALS, LLC;

AND SSA TERMINALS (TACOMA), LLC,

Petitioners,

v.

PUGET SOUNDKEEPER ALLIANCE,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of A ppeals for the Ninth Circuit

BRIEF OF WASHINGTON TRUCKING

ASSOCIATIONS AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Jeff B. Kray

Counsel of Record

James A. Tupper, Jr.

Emma L. Lautanen

Marten Law, LLP

1191 Second Avenue,

Suite 2200

Seattle, WA 98101

(206) 292-2600

jkray@martenlaw.com

Stephen J. Odell

Marten Law, LLP

1050 SW Sixth Avenue,

Suite 2150

Portland, OR 97204

(206) 292-2600

sodell@martenlaw.com

Counsel for Amicus Curiae

120058

A

(800) 274-3321 • (800) 359-6859

i

TABLE OF CONTENTS

Page

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

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . ii

INTERESTS OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . 7

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

I.

The Circuit Split on the Vital Question

of the Scope of Federal Jurisdiction over

Citizen Suits to Enforce Water Quality

Standards Emanating from State Law

and Indisputably Exceeding the CWA’s

Ambit Warrants Granting the Petition . . . . . . . . 8

II. The Ninth Circuit’s Ruling is Contrary to the

Plain Text of the CWA Citizen-Suit Provision

and Ignores Essential Statutory Context . . . . . 12

III. The Ninth Circuit Ruling is Important

to the Proper Functioning of the CWA in

accordance with the Act’s Congressional

Purposes and Overall Design . . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

ii

TABLE OF CITED AUTHORITIES

Page

CASES

Ashoff v. City of Ukiah,

130 F.3d 409 (9th Cir. 1997) . . . . . . . . . . . . . . . . . 11, 20

Atlantic States Legal Found. v.

Eastman Kodak Co.,

12 F.3d 353 (2d Cir. 1993) . . . . . . . . . . . . . . . . . . . . . 8, 9

Babbitt v. Sweet Home Chapter of Communities,

515 U.S. 687 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

City & Cnty. of San Francisco v. EPA,

75 F.4th 1074 (9th Cir. 2023), cert. granted,

144 S. Ct. 2578 (2024) . . . . . . . . . . . . . . . . . . . . . . 10, 12

Committee for a Better Arvin v. EPA,

786 F.3d 1169 (9th Cir. 2015) . . . . . . . . . . . . . . . . . . . 20

Hallstrom v. Tillamook Cnty.,

493 U.S. 20 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Kokkonen v. Guardian Life Ins. Co. of America,

511 U.S. 375 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Loper-Bright Enterprises v. Raimundo,

144 S. Ct. 2244 (2024) . . . . . . . . . . . . . . . . . . . . . . 13, 16

Merrill Lynch, Pierce, Fenner & Smith v.

Manning,

578 U.S. 374 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

Cited Authorities

Page

Miotke v. City of Spokane,

101 Wash.2d 307 (Wash. 1984) . . . . . . . . . . . . . . . . . . 21

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

56 F.3d 979 (9th Cir. 1995) . . . . . . . . . . . . . . 8, 9, 10, 11

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

74 F.3d 945 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 8

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

845 F.3d 133 (4th Cir. 2017) . . . . . . . . . . . . 9, 10, 11, 17

Parker v. Scrap Metal Processors, Inc.,

386 F.3d 993 (11th Cir. 2004) . . . . . . . . . . . . . . . . . . . . 9

Puget Soundkeeper Alliance v. Port of Tacoma,

104 F.4th 95 (9th Cir. 2024) . . . . . . . 1, 8, 11, 13, 16, 17,

18, 19, 21

Pulsifier v. United States,

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

Romoland School Dist. v. Inland Empire

Energy Center, LLC,

548 F.3d 738 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 20

STATUTES, RULES AND OTHER AUTHORITIES

33 U.S.C. § 1251(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

33 U.S.C. § 1342(c)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

iv

Cited Authorities

Page

33 U.S.C. § 1342(k) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

33 U.S.C. § 1342(p)(2)(B) . . . . . . . . . . . . . . . . . . . . . . . . . 15

33 U.S.C. § 1342(p)(4)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 15

33 U.S.C. § 1365(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

33 U.S.C. § 1365(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . 13

33 U.S.C. § 1365(f)(7) . . . . . . . . . . . . . . . . . . . . . . 13, 15, 16

42 U.S.C. § 7604 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

40 C.F.R. § 122.26(a)(9)(i)(D) . . . . . . . . . . . . . . . . . . . . . . 17

40 C.F.R. § 122.26(b)(14) . . . . . . . . . . . . . . . . . . . . . . . . . 16

40 C.F.R. § 122.26(b)(14)(viii) . . . . . . . . . . . . . . . . . . . . . 16

Pub. L. 115-282, title IX, § 903(c)(3), Dec. 4, 2018,

132 Stat. 4356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Sup. Ct. R. 37.2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Sup. Ct. R. 37.6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

WA Draft Industrial Stormwater General Permit,

https: //for t ress.wa .gov/ecy/ezsha re / wq /

permits/ISGP_2024_DraftPermit.pdf . . . . . . . . . . . 22

1

The Washing ton Trucking A ssociations (“ W TA”)

respectfully submits this brief as an amicus curiae

supporting petition for writ of certiorari (“Petition”) that

the Port of Tacoma (“Port”), SSA Terminals, LLC, and

SSA Terminals (Tacoma), LLC, have filed in this Court.1

The Petition seeks review of the Ninth Circuit opinion in

Puget Soundkeeper Alliance v. Port of Tacoma, 104 F.4th

95 (9th Cir. 2024), on whether the citizen-suit provision

of the Clean Water Act (“CWA”) confers jurisdiction for

alleged violations of conditions in state-water-quality

permits that are based entirely on state law outside the

CWA’s scope.

INTERESTS OF AMICUS CURIAE

WTA is a non-profit corporation that serves as the unified

voice for the trucking industry in Washington State. It

was established in 1922 by a group of truck owners for the

purpose of protecting and promoting the interests of the

trucking industry for its members, all of whom operate

in the state of Washington and many of whom operate in

many other states across the country as well. Its more than

600 members include common carriers, private carriers,

dump truckers, log truckers, movers, and suppliers,

1. In accordance with this Court’s Rule 37.6, counsel for

amicus curiae represents that no counsel for a party authored

this brief in whole or in part, and no party or counsel for a party

made a monetary contribution intended to fund the preparation or

submission of this brief. Moreover, no person or entity other than

amicus curiae or its counsel has made a monetary contribution

to the preparation or submission of this brief. Pursuant to this

Court’s Rule 37.2, counsel for amicus curiae further certifies that

it provided timely notice of the intent to file this brief with counsel

of record for both Petitioners and Respondent.

2

and range from Fortune 100 companies who operate in

all fifty states to privately owned trucking companies

that operate locally. Among other of its purposes, WTA

serves its members by promoting safe, efficient, and

cost-effective business practices, encouraging procompetitive legislation, improving highway safety through

education and legislation, and supporting technologies

and innovations that enhance operations, safety, and the

environment. Member-supported, WTA is dedicated to

advocating sound public policies; providing excellence

in education, training, and information; and promoting a

safe, dependable, and cost-efficient trucking industry in

Washington State.

Consistent with these overarching interests, WTA

regularly advocates on behalf of the trucking industry in

this and other courts. It and its members have a strong

interest in and deep familiarity with the critical CWA

issues at the heart of the Petition. Given that many WTA

members are permittees under the State of Washington’s

Industrial Stormwater General Permit (“ISGP”) the

enforceability by private citizens in federal court of the

purely state-law provisions of which that not even the state

itself can enforce are at stake. The Washington ISGP is

a combined permit that the Washington Department of

Ecology (“Ecology”) issues every five years pursuant to

both the federal CWA as a National Pollutant Discharge

Elimination System (“NPDES”) permit, and the

Washington State Water Pollution Control Act (“WPCA”)

as a State Waste Discharge General Permit. The ISGP’s

hybrid nature salient because the CWA expressly excludes

stormwater from its regulatory reach unless it fits within

one of several statutory exceptions, while the Washington

WPCA encompasses all waters within state boundaries

3

such as that which forms the basis of Respondent’s citizensuit claim at issue.

The explicit exceptions to the general rule that stormwater

discharges do not require a permit under the CWA

emerged after two decades of debate over how to tackle

pollution issues posed by stormwater, given its ubiquitous

nature, without overwhelming the agencies administering

the statute. As its name implies, stormwater materializes

upon any incidence of precipitation and thus presents a

particularly unique challenge in the regulatory sphere,

for both regulators and regulated communities. A seminal

judicial decision ruled that, as originally enacted, the

CWA encompassed all point-source discharges, including

those composed purely of stormwater. This led Congress

to amend the CWA in 1987 to prescribe that stormwater

discharges do not require an NPDES permit unless they

fall into one of five statutory categories, one of which as

relevant here is “a discharge associated with industrial

activity.” Rather than define that term by statute

Congress directed the Environmental Protection Agency

(“EPA”) to develop regulations defining permit application

requirements for stormwater discharges falling within

this categorical exception.

Pursuant to this direction, in 1990 EPA issued regulations

setting forth NPDES permit application requirements for,

among other things, stormwater discharges associated

with industrial activity. In defining this operative

term, EPA specified twelve categories of facilities that

it would consider to be engaging in industrial activity

requiring NPDES permit coverage. One such category

constitutes transportation facilities that engage in vehicle

maintenance, equipment cleaning, or airport deicing

4

operations. In delineating such activities that fall within

the definition of industrial activity, the EPA regulation

explicitly states that only those portions of a qualifying

transportation facility involved in conducting these

activities are considered to be “associated with industrial

activity” for purposes of the NPDES program. These

regulations have remained unchanged since EPA initially

issued them pursuant to congressional direction in 1990.

The CWA is imbued with the concept of shared federalism.

Thus, the statute expressly provides for states to

apply for EPA-delegated authority to administer the

federal NPDES program. Forty-seven states, including

Washington, have accepted that delegated authority.

In addition, the CWA includes an “anti-preemption”

provision, Section 510, that expressly provides that

its federal requirements serve as a floor, not a ceiling,

such that states are not precluded from adopting more

stringent measures designed to protect water quality

within their boundaries than those prescribed by or within

the jurisdictional reach of the CWA. Thus, Washington has

both assumed responsibility for administering the State’s

NPDES program under the CWA and adopted its own

WPCA to define the water-quality protections applicable

more broadly to all waters—beyond those that meet the

definition of “waters of the United States”—within its

state borders. In enacting the WPCA, Washington also

departed from the CWA by explicitly opting not to include

a “citizen suit” provision under which parties could bring

actions in state court to enforce alleged violations of its

state Act but reserved judicial enforcement of its terms to

Ecology. It is in this federalism context that Washington

issued the ISGP.

5

As an initial matter then, WTA members’ interests are

most directly implicated by the Petition by virtue of the

fact that they engage in industrial activity that can lead

to stormwater discharges that go beyond the limited

reach of the NPDES program under the CWA, which

for their transportation facilities is limited to those

portions devoted to vehicle maintenance and equipment

cleaning operations. For example, some WTA member

facilities involve other activities such as truck parking,

freight storage, driver amenities, and administrative

buildings. Under the rule the Ninth Circuit enunciated

of which the Petition seeks review, WTA members face

the prospect of being the subject of a federal citizen-suit

for these extra-NPDES activities, notwithstanding their

express exclusion from the NPDES program by statutory

direction and longstanding regulations issued thereunder.

WTA’s interests are further implicated by the Petition due

to the Ninth Circuit ruling creating a cascading series of

inconsistencies in enforcement of the CWA its members

will face as they operate across different states.

The first such inconsistency arises simply from the fact

that the Ninth Circuit ruling effectively cedes exclusive

control over state WPCA enforcement from the state

agency with legislatively delegated authority for that

responsibility to single-interest organizations operating

without any political accountability or governmental

checks and balances. Thus, environmental organizations

such as Respondent can pick and choose among specific

ISGP permittees against whom to bring federal citizensuit lawsuits for alleged violations of state water-quality

measures, wholly irrespective of considerations regarding

equity, fairness, or uniform application of the law that

6

otherwise operate to inform and influence the discretion

of the permitting agency, Ecology. This inconsistency

is particularly untenable given that the Washington

Legislature has not authorized citizen suits to be brought

in state court for such alleged violations; hence, under

the Ninth Circuit’s ruling, the only forum in which such

citizen-suit actions can be brought for purely state WPCA

permit violations is federal court.

The second inconsistency derives from the circuit split

itself, which even the Ninth Circuit overtly conceded in

its opinion exists between it and the Second Circuit and

has existed for two decades now. The split creates uneven

terrain in terms of potential liability for WTA members

who also operate facilities in states encompassed by

the Second Circuit. And from an interstate commerce

perspective, it puts WTA members who operate facilities

within the Ninth Circuit at an unfair disadvantage visà-vis competitors who operate only within the Second

Circuit; this inconsistency and disadvantage, by all

reliable indicia, flies in the face of initial congressional

intent in enacting the CWA.

Thirdly, even WTA members with transportation facilities

solely within the Ninth Circuit (or other circuits who

have issued similar rulings on the question at issue in

the Petition), face undue and disparate risks of potential

litigation. This follows because, under the federalism

principles underlying the CWA, each state that has

assumed responsibility for administering the federal

NPDES program has at least a different statutory and

regulatory state law regime for managing stormwater

with varying requirements and conditions. Thus, in

such states that have, like Washington, issued a single,

7

combined industrial stormwater permit that qualifies as

an NPDES permit under the CWA, and also incorporates

supplemental requirements under their own state law,

the Ninth Circuit ruling subjects WTA members with

facilities in such states to significantly different risks

of potential liability. That is, they face the prospect of

enforcement actions in federal court by private groups

based on alleged violations of highly variable state waterquality standards that can go beyond the established

federal CWA parameters for stormwater discharges

associated with transportation-related industrial activity.

In light of the foregoing, WTA and its members have

significant interests in the Petition and reversal of the

Ninth Circuit ruling of which review is sought.

SUMMARY OF ARGUMENT

The Petition bears the hallmarks that warrant review by

the Court. First, the Ninth Circuit ruling of which the

Petition seeks review maintains a pre-existing circuit

split and expands the reasoning of its 1995 decision that

originally created the split. The extension of its reasoning

has led to further variation between itself and two other

circuits—the Fourth and Eleventh—which had relied on

its 1995 opinion. Second, the Ninth Circuit ruling involves

an important question of federal law that implicates

compelling issues regarding the scope of federal court

jurisdiction and the respective powers of the federal and

state governments, and the role of private citizens, in the

administration and enforcement of the CWA. Third, the

Ninth Circuit made rulings regarding this question that

are inconsistent with the precedents of this Court.

8

ARGUMENT

I.

The Circuit Split on the Vital Question of the

Scope of Federal Jurisdiction over Citizen Suits to

Enforce Water Quality Standards Emanating from

State Law and Indisputably Exceeding the CWA’s

Ambit Warrants Granting the Petition.

As noted above, the Ninth Circuit openly acknowledged in

its opinion that a circuit split has existed for nearly thirty

years now regarding the question the Petition presents as

to the enforceability in a federal citizen suit under the CWA

of purely state-based water quality conditions. PSA, 104

F.4th at 104 (noting that the holding in its earlier opinion

in Northwest Env’t Advocs. v. City of Portland, 56 F.3d 979

(9th Cir. 1995) (“NWEA II”), “directly conflicts with the

Second Circuit’s ruling” in Atlantic States Legal Found.

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

it was bound to follow its own precedent on the issue); see

also id. at 107 (O’Scannlain, J., specially concurring to

expound on the history of the split and register his ongoing

disagreement with the Ninth Circuit position).

In his special concurrence, Judge O’Scannlain explained

that he and several of his colleagues who dissented from

the denial of a petition seeking rehearing en banc of the

NWEA II opinion recognized even then that it would give

rise to a direct conflict with the Second Circuit ruling in

Atlantic States and unsuccessfully urged his Ninth Circuit

colleagues to follow their sister circuit. Id. at 107 citing

his en banc dissent in Northwest Env’t Advocs. v. City of

Portland, 74 F.3d 945, 946 (9th Cir. 1996) (“NWEA III”).

9

Moreover, as Petitioners elaborate in the Petition, the

split has only deepened or grown more convoluted since

its emergence in the mid-1990s. Since that time, as the

Petition summarizes, the Fourth and Eleventh Circuits

have had occasion to explicitly address issues similar

to the one presented by the Petition that cite the Ninth

Circuit opinion in NWEA II in determining whether

federal jurisdiction over a CWA citizen suit existed. See

Petition at 21-23 (citing Ohio Valley Env’t Coal. v. Fola

Coal Co., 845 F.3d 133 (4th Cir. 2017); Parker v. Scrap

Metal Processors, Inc., 386 F.3d 993 (11th Cir. 2004)).

In Parker, the salient issue varied somewhat from the

specific question in the Petition, as defendants there

argued that the Georgia assumption of the NPDES

program “transform[ed] the plaintiffs’ CWA claims into

state law claims” such that they did not “arise under

federal law” so as to fall within the constitutional limits

of federal-court jurisdiction under Article III. 386 F.3d at

1005. The Eleventh Circuit rejected this contention and

ruled that the mere fact Georgia was administering the

NPDES program did not render private citizens’ claims

to enforce its state-issued permit under that program

outside the realm of the CWA citizen-suit provision. Id.

at 1008. Thus, although when viewed through the prisms

of their actual holdings, Parker and Atlantic States may

not directly conflict, in reaching its ruling in Parker

the Eleventh Circuit went out of its way to note its

disagreement with the Second Circuit in Atlantic States.

Id. at 1006 n.15. Parker can therefore only be viewed as

expanding the breadth of the split among the circuits or, at

a minimum, adding to confusion surrounding the question

presented by the Petition.

10

In Ohio Valley, the Fourth Circuit grappled with the

scope of permit conditions the permittee had to comply

with to qualify for the permit shield defense in Section

402(k) of the CWA. 845 F.3d at 141-43. In ruling that

the NPDES permittee had to comply with “generic”

narrative-oriented regulations directing it “not to cause

violation” of state water quality standards in addition to

specific effluent limitations in the permit to qualify for

the shield, the Fourth Circuit ended up addressing issues

extremely similar to the ones the Ninth Circuit resolved

in NWEA II and, more recently, in the case on which this

Court heard oral argument just last week, City & Cnty.

of San Francisco v. EPA, 75 F.4th 1074, 1089-91 (9th Cir.

2023), cert. granted, 144 S. Ct. 2578 (2024). 2 . See Ohio

Valley, 845 F.3d at 136 & 141-42 n.5 (citing NWEA II for

the proposition that “courts have enforced water quality

standards provisions when, as here, the NPDES permit

incorporates these standards”); In reaching this ruling,

however, the Fourth Circuit was careful to note that the

state water-quality standards plaintiffs were seeking to

enforce under the CWA citizen-suit provision had been

adopted by West Virginia as “necessary to comply with”

its assumption and ongoing administration of the NPDES

program under Section 402. Id. at 136-37. As such, Ohio

2. The main difference between San Francisco and this

case is that the present one goes two steps further by specifically

addressing whether purely state law requirements indisputably

beyond the ambit of the federal NPDES program as confirmed

by EPA regulation can be enforced against a permittee in federal

court, and by whom. Thus, the Court also needs to grant the

current Petition as a necessary corollary and complement to its

ruling in San Francisco and give it the opportunity to ensure

that lower federal courts gain clarity in a more comprehensive

and useful manner in the demonstrably choppy waters in which

they are presently sailing.

11

Valley can be seen as relatively consistent with the Ninth

Circuit opinion in NWEA II insofar as it confirms that

state narrative water-quality standards, at least insofar

as they are part of required program elements EPA has

indicated are necessary for a state to take on the NPDES

program, are enforceable elements of an NPDES permit

in a CWA citizen suit. But by carefully hewing its holding

to state water-quality standards that EPA had approved

as part of the state assumption of the delegated NPDES

program, even the Fourth Circuit has not gone as far as

the Ninth Circuit did in PSA.

Moreover, resolving the circuit split on the jurisdictional

question the Petition presents is even more justified given

the number of citizen-suit provisions in other federal

environmental statutes that largely track or are modeled

after that in the CWA (which in turn was patterned after

the first citizen-suit provision in a federal environmental

statute, Section 304 of the Clean Air Act (“CAA”), 42 U.S.C.

§ 7604). See Hallstrom v. Tillamook Cnty., 493 U.S. 20, 23

n.1 (1989) (citing sixteen citizen-suit provisions, including

Section 505 of the CWA, which borrow from Section 304 of

the CAA). Indeed, the Ninth Circuit has expressly pointed

out its practice, as well as that of other courts, in mixing

and matching cases interpreting citizen-suit provisions

under the CWA, CAA, and the Resource Conservation

and Recovery Act (“RCRA”), especially when construing

such a provision under any one statute. See Ashoff v. City

of Ukiah, 130 F.3d 409, 413 (9th Cir. 1997). The circuit

split in construing the citizen-suit provision of the CWA

is only exacerbated in this vein, however, given that the

cases the Ninth Circuit cites reveal inconsistencies in

how courts compare its “sister” citizen-suit provisions in

determining which ones should be interpreted similarly

or at variance with the others.

12

In sum, the foregoing tangled web of circuit case law

in this area reveals an unequivocal, long-standing, and

irreconcilable circuit split between the Ninth and Second

on the question presented by the Petition, as well as a

jumbled mess among at least four circuits overall, all of

which have struggled with issues integrally related to that

same question. The Petition also presents a question that

dovetails quite seamlessly with the CWA issue the Court

has before it presently in San Francisco and would enable

it to enhance the value of its ruling in that case. Such a

scenario cries out for reconciliation and clarification from

this Court and this criterion alone therefore heavily in

favors of granting the Petition.

II. The Ninth Circuit’s Ruling is Contrary to the Plain

Text of the CWA Citizen-Suit Provision and Ignores

Essential Statutory Context.

The Ninth Circuit ruling is erroneous and ill-advised on

a host of different fronts, and thus, is sorely in need of

correction, particularly when considered in conjunction

with the conf lict and confusion presently manifest

among the circuits. The ruling is contrary to the plain

meaning of the statutory provisions it construes, fails to

account for the relevant statutory context in rendering

its construction or otherwise abide by key tenets of

statutory interpretation, and also goes wholly against the

grain of the federalism principles woven throughout the

CWA that are essential to a proper understanding of its

interpretation and enforcement.

1. The Ninth Ci rcuit r uling misapprehends and

misconstrues the fundamental text at the heart of

its ruling in Section 505 of the CWA, its citizen-suit

13

provision. In relevant part, Subsection 505(a) authorizes

any citizen to bring a civil action in federal district court

against any person who is alleged to be in violation of

“an effluent standard or limitation under” the CWA. 33

U.S.C. § 1365(a)(1)(A). Subsection 505(f) goes on to define

the term, “effluent standard or limitation” for purposes

of the citizen-suit provision as “a permit or condition of a

permit issued under [Section 402 of the CWA] that is in

effect under [the CWA].” 33 U.S.C. § 1365(f)(7) (emphases

supplied).

2. In reviewing this text in PSA, the Ninth Circuit gave

short shrift to the full complement of text at issue and

instead simply declared that “there is no dispute that the

ISGP is ‘a permit issued under [Section 402 of the CWA],’

nor that it was ‘in effect.’ It follows that [Respondent]

may bring a citizen suit to challenge an alleged violation

of the ISGP.” 104 F.4th at 104. This construction runs

afoul of the wisdom imparted by the adage attributed

to Albert Einstein that everything should be made as

simple as possible, but not any simpler. Turning the core

judicial function of interpreting statutes, see Loper-Bright

Enterprises v. Raimundo, 144 S. Ct. 2244, 2257, 2273

(2024), into what amounts to little more than a syllogistic

exercise risks, as with the Ninth Circuit ruling here,

seriously undermining that essential task.

As a fundamental matter, the Ninth Circuit wholly

overlooked the fact that the relevant text in Section

505(f)(6) defines an “effluent standard or limitation” not

as any condition incorporated into a “permit . . . issued

under [Section 402 of the CWA],” but rather as cabined

to a permit or condition of a permit issued under that

14

section. This framing of the text makes it clear that, to

be enforceable under Section 505, not just a permit, but

each condition in a permit that a citizen seeks to enforce,

must be issued under Section 402 of the CWA that creates

and prescribes the parameters of its NPDES program.

Under the Ninth Circuit reading, “or condition of a

permit” in Section 505(f)(6) would have to be construed

as mere surplusage, which is ordinarily to be avoided,

Babbitt v. Sweet Home Chapter of Communities, 515

U.S. 687, 698 (1995), or wholly rearranged to follow “a

permit issued under [Section 402 of the CWA].” Such

rewriting of statutory text is especially unmerited under

the circumstances because Congress specifically tightened

up the language in Section 505(f)(7) in its most recent

amendments to the CWA, but in so doing did not modify

the essential framing of the language, indicating that

both permits and permit conditions need to be issued

under the NPDES program established in Section 402.

See Pub. L. 115–282, title IX, § 903(c)(3), Dec. 4, 2018,

132 Stat. 4356. And, more generally of course, rewriting

statutory text is never a permissible judicial function, but

rather lies exclusively within the constitutional purview

of the Congress.

In the context of a hybrid permit such as the Washington

ISGP issued under both Section 402 and the state WPCA,

it is critical to ascertain the legal source of the condition

a private plaintiff seeks to enforce pursuant to the

CWA citizen-suit provision. As a result of its erroneous

conclusion that all permit conditions in the Washington

ISGPs are enforceable under the CWA citizen-suit

provision simply because such permits were issued in part

under the authority of the state-administered NPDES

program that Ecology implements, the Ninth Circuit

15

also failed to take account that for a NPDES permit to

be enforceable in a citizen suit under the CWA, a permit

condition not only has to be issued “under” Section 402

of the CWA, but also has to be in effect “under” the Act

itself. 33 U.S.C. § 1365(f)(7).

3. Moreover, the Ninth Circuit’s failure in this regard is

fatal to its analysis and ultimate ruling because it also led

it to overlook construing the relevant text of the citizensuit provision in the context of other key elements of the

CWA, most importantly Section 402(p). As this Court

recently reaffirmed, statutes can be sensibly interpreted

only by reviewing the text at issue in its proper context

of the statute as a whole. Pulsifier v. United States, 601

U.S. 124, 133 (2024).

Subsection 402(p) and the regulations that provision

directs EPA to promulgate expressly exclude from the

ambit of the NPDES program the very stormwater

discharges that Respondent seeks to enforce in the case

at hand. As referenced above, in 1987 Congress expressly

amended the CWA to add that subsection 402(p) for the

purpose of excluding all stormwater discharges from

the statute’s NPDES program unless they fall into one

of five categories of exceptions, one of which is for such

discharges “associated with industrial activity.” 33 U.S.C.

§ 1342(p)(2)(B). It then expressly directed and authorized

EPA to issue regulations that flesh out the relevant

NPDES permit application requirements for stormwater

discharges falling within this categorical exception. 33

U.S.C. § 1342(p)(4)(A). Because the statute expressly

and specifically directed EPA to utilize its expertise to

determine how the broad statutory term should be applied

in administering the NPDES program, its regulations

16

in this regard are due particular respect in the Court’s

construction of the CWA. See Loper-Bright, 144 S. Ct. at

2259, 2263.

In those regulations, EPA directly addressed the scope

of the NPDES program with respect to distinct types of

stormwater discharges associated with industrial activity,

including, as relevant here, such discharges occurring at

certain transportation facilities. 40 C.F.R. § 122.26(b)(14)

(viii). In defining the scope of what is considered to be

engaging in industrial activity for purposes of the NPDES

program’s regulation of stormwater discharges, EPA

expressly delineated that it included in relevant part

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

in vehicle maintenance (including vehicle rehabilitation,

mechanical repairs, painting, fueling, and lubrication) [or]

equipment cleaning operations.” Id. To make its intent

unmistakably clear in this regard and emphasize that

this delineation is meant to be exclusive, EPA further

provides more generally in its regulation that the term

stormwater discharge associated with industrial activity

“does not include discharges from facilities or activities

excluded from the NPDES program under this part.” 40

C.F.R. § 122.26(b)(14) (emphasis supplied).

It is therefore indisputable that the stormwater discharge

conditions the Ninth Circuit ruled are actionable under

the citizen-suit provision in PSA are excluded from

the NPDES program. See PSA, 104 F.4th at 100. It

necessarily cannot be said then that any such conditions

were “issued under” Section 402 or are in effect

pursuant to the CWA, as Section 505(f)(7) requires for

claims brought pursuant to its terms. 33 U.S.C. § 1365(f)

(7). Such a construction is particularly warranted given

17

that the regulations expressly provide a mechanism

for a state administering the NPDES program to add

protections beyond EPA’s carefully delineated regulatory

boundaries. 40 C.F.R. § 122.26(a)(9)(i)(D) (state can go

beyond the bounds of the federal NPDES program only if

it determines that a stormwater discharge is contributing

to violation of a water quality standard or is a significant

contributor of pollutants to U.S. waters).

The Ninth Circuit also failed to adequately consider how its

construction of the CWA citizen-suit provision interrelates

with or could undermine other important elements of

the CWA. For example, although it acknowledged the

importance of the permit shield defense in Section 402(k)

of the CWA to the statute’s overall design, PSA, 104 F.4th

at 105, it failed to address how its ruling might serve to

largely limit if not eviscerate that shield.

Section 402(k) provides that compliance with an NPDES

permit issued under Section 402 shall be construed as

compliance with virtually all regulatory requirements of

the CWA (except any standard imposed under Section 307

of the Act to regulate toxic pollutants injurious to human

health). 33 U.S.C. § 1342(k). If a private citizen can bring

a lawsuit to challenge state permit conditions outside

the explicit and well-delineated bounds of the NPDES

program, however, as happened here, the permit shield is

effectively eviscerated. This appears to be why the Fourth

Circuit took pains in Ohio Valley to discern whether the

standards sought to be enforced in the citizen suit before

it were properly within the scope of the NPDES program.

845 F.3d at 142-43. This judicial methodology is in stark

contrast to the approach the Ninth Circuit employed,

which was to conclude that it does not matter whether

18

the condition sought to be enforced via citizen-suit in a

regulated entity’s permit is part of that program, thereby

severely diminishing its protection from such suits and

threatening to render the permit shield essentially a dead

letter in the Ninth Circuit going forward.

4. The Ninth Circuit also failed to utilize appropriate

interpretive tools and principles in construing the scope

of the CWA citizen-suit provision in PSA. Most tellingly,

it failed to acknowledge or contend with the fact that, in

defining that scope, it necessarily also engaged in defining

the reach of federal jurisdiction for claims falling within

its berth. See 33 U.S.C. § 1365(a) (providing in relevant

part that federal district courts shall have jurisdiction to

enforce “such an effluent standard or limitation” under

the CWA as defined in Section 505(f)). This is relevant, of

course, because federal courts possess limited jurisdiction

that only goes so far as the Congress demarcates within

constitutional bounds. Kokkonen v. Guardian Life Ins.

Co. of America, 511 U.S. 375, 377 (1994). As such, federal

courts are to construe statutory grants as granting them

jurisdiction narrowly and no more expansively “than their

language, most fairly read, requires.” Merrill Lynch,

Pierce, Fenner & Smith v. Manning, 578 U.S. 374, 389

(2016). This is particularly true when such a construction

implicates the prerogatives of state courts and their much

more expansive jurisdictional authority. Id. at 390.

Rather than invoking or following this well-established

principle, however, the Ninth Circuit’s ruling takes it to

its polar extreme. This follows because, under its ruling,

it will be states through their independent water pollution

control statutes, and enterprising environmental advocacy

groups who seek to enforce such state measures as broadly

19

as possible in the process of bringing citizen suits, who will

be elastically defining and expanding the jurisdiction of

federal courts in a case-by-case process under the CWA,

not the Congress by statute.

A narrow reading of federal-court jurisdiction under the

citizen-suit provision is particularly warranted in this

case given the rigid refusal of the Ninth Circuit to allow

Petitioners to bring what it characterized as a “collateral

attack” on the Washington ISGPs. PSA, 104 F.4th at 10406. More specifically, the Ninth Circuit declined to allow

Petitioners to challenge the scope of the ISGPs based

on their argument that Ecology failed to avail itself of

the procedures EPA has prescribed to explicitly allow

a state to adopt measures that exceed the stringency of

the NPDES stormwater program as defined in the CWA

and its implementing regulations. Id. The court did so

based on its view that Petitioners needed to bring any

such challenge upon issuance of the permit pursuant to

the available state procedures for that purpose. It did

so even after devoting a healthy chunk of its opinion to

interpreting just what the conditions in the ISGPs entail

(in a manner contrary to the way the district court had

construed them), thereby displaying that the meaning and

full reach of such conditions may not be readily apparent

to a permittee upon issuance of the permit. For present

purposes, the salient point is that the federal courthouse

door should not be construed to swing widely open in

favor of one set of stakeholders (environmental advocacy

organizations), but stringently kept only narrowly ajar for

another (regulated entities).

20

Nor did the Ninth Circuit follow its own interpretive

practice of looking to cases involving the citizen-suit

provision in the CAA arena to assist it in construing the

citizen-suit provision of the CWA. See Ashoff, 130 F.3d

at 413. If it had, it would have run across its numerous

opinions that have taken a decidedly narrow view of the

scope of federal jurisdiction for citizen suits under the

CAA, in particular where the measures sought to be

enforced exceed the bounds of that act or have not been

formally incorporated into a state-approved plan, including

the requisite approval by EPA. See, e.g., Romoland School

Dist. v. Inland Empire Energy Center, LLC, 548 F.3d 738,

741 (9th Cir. 2008) (only after a local rule becomes part of

an EPA-approved State Implementation Plan following a

public notice and comment period, does it become federally

enforceable in district court through the CAA’s citizen suit

provision); see also Committee for a Better Arvin v. EPA,

786 F.3d 1169, 1182 (9th Cir. 2015).

III. The Ninth Circuit Ruling is Important to the Proper

Functioning of the CWA in accordance with the

Act’s Congressional Purposes and Overall Design.

Finally, granting the Petition in this case is warranted

because the Ninth Circuit ruling threatens to upset

and undermine the carefully crafted statutory balance

and array of incentives and consequences Congress has

assiduously constructed in enacting the CWA and a series

of amendments to achieve the Act’s purposes and improve

its efficacy.

This risk is most apparent when it comes to the principles

of federalism that run throughout the CWA (and much of

21

the rest of the federal environmental statutory rubric),

given the historical primacy of states regarding the

use and protection of water resources. See 33 U.S.C.

§ 1251(b) (recognizing same). In this regard, the Ninth

Circuit ruling leads to the anomalous result that the

purely state law requirements of the Washington WPCA

can be enforced in a citizen suit in federal court but are

not enforceable in Washington state courts. See Miotke

v. City of Spokane, 101 Wash.2d 307, 330 (Wash. 1984) (en

banc) (confirming that the WPCA authorizes the state to

recover damages and civil penalties for violations of waste

discharge permit requirements but does not authorize

citizen suits to enforce such violations). Thus, even though

the Ninth Circuit strains to show that it is seeking to

defer to the role of states in enacting and enforcing the

CWA, PSA, 104 F.4th at 104-05, on the central issues

before it of where and by whom purely state water-quality

requirements should be enforced, its ruling does the exact

opposite. Its ruling may therefore have the unintended

consequence of causing states to scale back state-based

water quality protections for fear of losing control over

how and when to enforce them and how they should be

interpreted and applied.

Moreover, the Ninth Circuit ruling has taken a veritable

sledgehammer to the limits of federal regulatory

jurisdiction and oversight over the navigable waters

of the United States that the Congress prescribed in

enacting the CWA. When a state assumes responsibility

to administer the NPDES program within its boundaries,

it is simply stepping into the shoes of administering the

federal CWA program, nothing less, but also nothing

more. See 33 U.S.C. § 1342(c)(2) (any State NPDES

22

program “shall at all times be in accordance with” Section

402). And while the “regulatory creep” reflected in

permitting a citizen suit to enforce a purely state-based

water quality condition that expands regulation over

stormwater discharges beyond the confines of the federal

NPDES program may not seem all that worrisome in

isolation, the effect of the Ninth Circuit ruling stands to

open a Pandora’s box that could lead to far more extreme

measures being enforced that are wholly antithetical to the

CWA. As just one example in this regard, it is instructive

to note that in the next iteration of the ISGP due to go into

effect in 2025, Washington seeks to extend its coverage to

discharges to groundwater under its state law authority,

which is expressly excluded from the ambit of the federal

CWA. WA Draft Industrial Stormwater General Permit

(available at https://fortress.wa.gov/ecy/ezshare/wq/

permits/ISGP_2024_DraftPermit.pdf).

23

CONCLUSION

The Petition before the Court is a clear basis for

intervention by the Court to resolve an important

jurisdictional issue for citizen suits under the CWA and

to resolve a conflict in appellate court rulings in this area.

WTA respectfully submits that the Court should grant

the Petition.

Respectfully submitted,

Jeff B. Kray

Counsel of Record

James A. Tupper, Jr.

Emma L. Lautanen

Marten Law, LLP

1191 Second Avenue,

Suite 2200

Seattle, WA 98101

(206) 292-2600

jkray@martenlaw.com

Stephen J. Odell

Marten Law, LLP

1050 SW Sixth Avenue,

Suite 2150

Portland, OR 97204

(206) 292-2600

sodell@martenlaw.com

Counsel for Amicus Curiae