Earlier this year, AGC of America filed a coalition amicus brief with the U.S. Supreme Court, supporting a water utility sector’s request for the Court to clarify whether Clean Water Act (CWA) NPDES (National Pollutant Discharge Elimination System) permits can include generic prohibitions. AGC members have noted these generic prohibitions in permits nationwide. This language does not provide a compliance path for permittees and exposes them to enforcement, criminal penalties, and citizen suits for activities that conform to the permit. On May 28, the Court issued an order granting certiorari, meaning it will hear the case.
The Feb. 12th coalition amicus brief urged the Supreme Court to review the Ninth Circuit’s decision in San Francisco v. EPA that upheld EPA’s vague NPDES permit language stating discharges “shall not cause or contribute to the violation of water quality standards.” Generic permit conditions fail to notify permittees of what they must do to comply with the CWA and leave permit holders vulnerable both to citizen suits and to unexpected enforcement by EPA and state regulators.
Importantly, the Ninth Circuit’s decision effectively eliminates the CWA’s “Permit Shield” that provides permittees with the confidence that compliance with their stormwater permit will protect them from allegations that their permitted discharges nevertheless violated the CWA. The issuance of a permit is how permit writers provide clear and final guidance to permittees of their compliance obligations. Without that crucial guidance, the Permit Shield is meaningless, rendering predictability unattainable.
AGC’s involvement in this case was made possible thanks to your contributions to the Construction Advocacy Fund. Keep up with the latest AGC Judicial Advocacy News. For additional information, please contact AGC’s Leah Pilconis at leah.pilconis@agc.org or Melinda Tomaino at melinda.tomaino@agc.org.