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B&D Petitions SCOTUS on Behalf of San Francisco to Challenge Vague Clean Water Permit Terms

On behalf of the City and County of San Francisco, Beveridge & Diamond filed a petition for writ of certiorari seeking U.S. Supreme Court review of a Ninth Circuit decision holding that the Clean Water Act allows the imposition of generic prohibitions against violating water quality standards in National Pollutant Discharge Elimination System (NPDES) permits. The U.S. Environmental Protection Agency (EPA) included such a prohibition in the NPDES permit for the wastewater collection and treatment system that serves the western portion of San Francisco. Similar generic bans against violating water quality standards are found in NPDES permits issued nationwide by EPA and authorized states.

The petition urges the Court to grant review for a simple reason: generic water quality prohibitions “fail to notify permittees of what they must do to comply with the Clean Water Act ….” They instead vaguely tell San Francisco and other permittees “not to cause ‘too much’ pollution,” thereby exposing them to enforcement actions under the Act without “tell[ing] them how much they need to limit or treat their discharges to comply with the Act.” As the petition explains, placing San Francisco and other permitholders in this predicament is inconsistent with the Act and case law interpreting the statute.

The case is captioned City and County of San Francisco v. Environmental Protection Agency, No. 23-753. Amicus briefs in support of San Francisco are due February 12, 2024. Coverage of the petition can also be found on Law360 and InsideEPA.

With decades of experience with environmental legal issues in California and across the country, Beveridge & Diamond’s Water practice group develops creative, strategically-tailored solutions to challenges that arise under the nation’s clean water laws. The firm’s attorneys represent clients in a range of litigation and enforcement proceedings arising from the growing convergence of water supply, use, and quality issues.