Authored by: E&W Law Partners Jeffrey Longsworth, John Sheehan, and Karen Bennett
On March 4, 2025, the Supreme Court held that National Pollutant Discharge Elimination System (NPDES) permits cannot contain vague or “end result” permit requirements for which compliance is determined based on the water quality of the receiving water body. [S.Ct. Opinion]. Instead, the Court ruled that the permit requirements must be clear about the steps a permittee must take to achieve compliance, particularly regarding water quality standards obligations. In a 5-4 decision, Justice Alito reversed a decision by the U.S. Court of Appeals for the Ninth Circuit that allowed broad generic permit provisions such as “the discharge cannot cause or contribute to exceedances of a water quality standard.”
Earth & Water Law clients the National Association of Home Builders (NAHB), the Associated General Contractors of America (AGC), and the American Road & Transportation Builders Association (ARTBA) were pleased with the decision and the court’s specific reliance on the amicus brief that Earth & Water Law prepared for the associations.
While the case focused on generic and vague “backstop” type permit provisions that EPA had inserted into San Francisco’s wastewater and stormwater permit, the construction trade associations were concerned that the Court might sweep too broadly to disrupt EPA’s use of non-numeric, narrative requirements such as best management requirements and operational requirements in construction general stormwater permits (CGP). The construction associations’ brief explained that narrative permit provisions can be important tools for permitting authorities in establishing effluent limitations in general permits, but the associations objected to the type of vague, “backstop” approach EPA often relies upon, such as those in San Francisco’s permit.
Justice Alito twice referred directly to arguments set forth by the construction associations, including stating that the Court’s decision did not impact appropriate narrative permit conditions, such as those in CGPs. More specifically, Justice Alito states:
Finally, the EPA contends that the rejection of its interpretation of 33 U. S. C. §1311(b)(1)(C) would have disruptive consequences for businesses that rely on “general permits.” Brief for Respondent 38; Tr. of Oral Arg. 83. (General permits cover an entire category of point sources in a given area. See South Fla. Water Management Dist. v. Miccosukee Tribe, 541 U. S. 95, 108, n. * (2004).) Such permits are important for certain businesses, such as homebuilders, other construction companies, and certain agricultural enterprises, see Brief for National Association of Home Builders et al. as Amici Curiae 1, 11, but no such company has submitted a brief supporting the EPA’s interpretation. On the contrary, a brief filed on behalf of such companies urges us to reject the EPA’s position. Id., at 4–7. What is important, these companies tell us, are narrative limitations other than end-result requirements, and they specifically cite provisions demanding compliance with “best-management practices” and “operational requirements and prohibitions.” Our decision allows such requirements. [S.Ct. Opinion at 19].
Justice Alito summarized the Court’s perspective on EPA’s permitting responsibilities as follows: “Determining what steps a permittee must take to ensure that water quality standards are met is the EPA’s responsibility, and Congress has given it the tools needed to make that determination. If the EPA does what the CWA demands, water quality will not suffer.”
NAHB’s Chairman, Buddy Hughes, expressed the Association’s support for the ruling, “The ruling sets limits on EPA’s power by stipulating that the agency must spell out to permittees what is needed to meet or implement such standards.” He added that NAHB, “is also pleased that the Court safeguarded narrative permit limits and made clear that numeric limits are not required.”
The construction associations’ brief also explained to the Court that EPA’s approach of imposing “end result” permit conditions, making the permittee responsible for any drop in water quality below the acceptable standard would eviscerate the important Clean Water Act (CWA) permit shield. Describing the permit shield as invaluable, the Court rejected EPA’s argument concluding that it would “disarm the shield.”
Final Thoughts
The Supreme Court appears to be relying more heavily on amicus briefs, demonstrating the value of providing important perspectives from regulated parties, particularly in complex environmental matters. For example, in 2008, NAHB was concerned about the Supreme Court’s focus on Clean Water Act technology-based standards in Entergy Corp. v. Riverkeeper, Inc. (556 U.S. 208), a case addressing cooling water intake permitting. While NAHB is not impacted by cooling water intake permits, the potential for the Supreme Court to impact all the CWA’s technology-based standards was a concern that NAHB decided was worth addressing in an amicus brief. NAHB’s brief contained a table relating all of the CWA technology-based standards to one another and the Court included a similar table in its final opinion that sided with regulated parties on EPA’s authority to set technology-based effluent limitations.
Earth & Water Law is available to discuss whether your organization might benefit from filing an amicus brief in cases that might impact your organization.
If you have questions, please contact Jeffrey Longsworth, John Sheehan, or Karen Bennett.
