NACWA joined eight public clean water agency members and two state associations on an amicus curiae brief last week in support of member utility the San Francisco Public Utilities Commission’s (SFPUC) appeal of problematic language in its Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit.   

The case, being heard in the U.S. Court of Appeals for the Ninth Circuit, has significant national implications for all NPDES permit holders, especially public clean water utilities.  NACWA’s brief will ensure that the perspective of the public clean water sector is strongly represented in the litigation.  

A split three-judge panel of the Ninth Circuit recently upheld generic terms EPA included in the permit requiring SFPUC not to “cause or contribute to the violation of water quality standards” or “pollute.”  SFPUC is now seeking review from the full Ninth Circuit – known as en banc review – of that decision.   

SFPUC’s petition for review explains how the panel’s decision allowing such generic permitting terms not only goes against prior decisions from the Ninth Circuit, it also directly conflicts with a 2015 opinion issued by the U.S. Court of Appeals for the Second Circuit holding that identical permitting language was unlawful under the CWA. 

Building upon the well-reasoned dissent from the panel’s decision, NACWA’s brief helps bolster SFPUC’s arguments by outlining how conflating the concepts of waterbody-specific water quality standards and permit-specific effluent limitations runs contrary to the text of the CWA, as well as to the Congressional intent clearly articulated in the Act’s legislative history.   

NACWA’s brief also explains how the failure to articulate clear permitting requirements turns CWA compliance into a moving target.  This not only thwarts the purpose of the CWA’s “permit shield” provision, the brief argues, it also puts at risk the significant investments communities across the country continue to make to improve their wastewater and stormwater systems.  As such, the brief argues that the issues presented are of exceptional importance and warrant en banc review.   

NACWA thanks the Buffalo Sewer Authority, Citizens Energy Group, the City of New York, the City of Tacoma, the Louisville/Jefferson County Metropolitan Sewer District, Metro Water Recovery, the Northeast Ohio Regional Sewer District, the Springfield Sewer and Water Commission, the California Association of Sanitation Agencies, and the Oregon Association of Clean Water Agencies for lending their critical support and voices to the brief.     

The Ninth Circuit will now consider San Francisco’s petition and determine whether to grant en banc review.  NACWA will keep members apprised of the court’s decision.  Please contact NACWA’s General Counsel, Amanda Aspatore, with any questions.