AGC of America seeks U.S. Supreme Court action to bar enforcement of vague stormwater permit language that opens up contractors to increased and unclear liability via citizen lawsuits, state regulators, or the EPA. 

On February 12, 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 the Clean Water Act allows the U.S. Environmental Protection Agency (EPA) or authorized states to enforce generic prohibitions in National Pollutant Discharge Elimination System (NPDES) permits. These generic prohibitions subject permitholders to enforcement for exceeding water quality standards without telling permittees how to comply with the permit. 

The coalition amicus brief urges 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.” Letting this decision stand could have negative consequences for construction site operators who must obtain NPDES permit coverage for their stormwater discharges; with AGC members observing that similar generic language is increasingly showing up in permits nationwide. 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. 

The seriousness of these concerns is underscored by the CWA's criminal penalties. Importantly, the Ninth Circuit’s decision effectively eliminates the CWA’s “Permit Shield” for actions that conform to the permit. Under that provision, permittees that comply with their NPDES permits know that they cannot be sued based upon 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. However, if permit writers can forgo their duties to craft discharge limits or best management practices, and instead include generic requirements such as “do not pollute” and “do not violate water quality standards,” the Permit Shield is meaningless, rendering predictability unattainable.    

The coalition brief argues that the Ninth Circuit’s blessing of generic conditions within NPDES permits is inconsistent with the CWA and its regulations and will cause widespread regulatory uncertainty and litigation risk for the business community. Furthermore, this approach conflicts with a 2015 Second Circuit decision in Natural Resources Defense Council v. EPA. 

The case is captioned City and County of San Francisco v. Environmental Protection Agency, No. 23-753.   

For additional information, please contact AGC’s Leah Pilconis at [email protected].