Julie Koepp | The Role of Citizen Suits in NPDES Permits

Background

The Clean Water Act (“CWA”) prohibits “discharge of any pollutant by any person” into the water of the United States without a National Pollutant Discharge Permit (“NPDES”). Puget Soundkeeper All. v. Port of Tacoma, 104 F.4th 95,95 (9th Cir. 2024). While the Environmental Protection Agency (“EPA”) has the authority to issue regulations implementing the CWA and NPDES permits, Congress authorized the EPA to delegate the power to the state, which it has done in almost all states. Id at 100.

The CWA creates a floor that the states must comply with. However, states have the authority to create regulations that raise that floor and issue NPDES under EPA-delegated authority, provided they still comply with the CWA requirements. Atl. States Legal Found. v. Eastman Kodak Co., 12 F.3d 353, 359 (2d Cir. 1993). Section 505 of the CWA allows citizens' suits for enforcement of NPDES permit violations. How far this power extends is where the circuit split lies.

Issue

Whether Section 505 of the Clean Water Act creates federal jurisdiction over citizen suits brought to enforce permit conditions adopted under state-law authority that are more stringent than the Act requires.

The Split

The Ninth and Second Circuits disagree on whether citizen suits can enforce permit conditions that are stricter than CWA requirements. The language at issue is "any citizen may commence a civil action . . . against any person . . . who is alleged to be in violation of . . . an effluent standard or limitation under this chapter." Puget Soundkeeper All. 104 F.4th at 103–104 (citing 33 U.S.C. § 1365(a)). The Ninth Circuit holds that any permit that is given by a state's delegated power under the CWA is enforceable in citizen suits, while the Second Circuit holds that a citizen suit would not have jurisdiction to seek enforcement of that same permit if it was issued based on state regulations that are stricter than the CWA.

Ninth Circuit

Washington State Department of Ecology (“Ecology”), to whom the EPA has delegated NPDES permit authority, issued a NPDES permit to the Port of Tacoma and SSA Terminals, LLC (“the Port”). The permit, which Ecology refers to as the Industrial Stormwater General Permit (“ISGP”), encapsulates regulations under the CWA as well as Washington State Water Pollution Control Act. Puget Soundkeeper All. 104 F.4th at 99. The state law regulations mean that the ISGP was more stringent than it would have been if it was issued exclusively under the CWA. Id.

In an action for enforcement brought by Puget Soundkeeper Alliance, the court held that there was standing for citizen suits to enforce all permit conditions in permits issued by the delegation of the EPA under the CWA. Id. Although the alleged discharges would be in violation of the ISGP issued by Ecology, but not the CWA, the citizen suit was permitted, which conflicts with the decision reached in the Second Circuit. Id. at 103.

Second Circuit

Eastman Kodak Company (“Kodak”), a manufacturer of photographic supplies and laboratory chemicals, was first issued an NPDES permit in 1975 by the EPA, who subsequently delegated their issuance responsibilities to the New York State Department of Environmental Conservation. Atl. States Legal Found. 12 F.3d 353 at 355–56. In 1982, Kodak disclosed additional discharges which led the DEC to issue a State Pollutant Discharge Elimination System (“SPDES”). This established specific effluent limitations for approximately 25 pollutants in compliance with the CWA and New York Law. Id at 355.

Kodak was sued by Atlantic States Legal Foundation over alleged violations of Section 301 and 402 of the CWA by discharging large quantities of pollutants not listed in its SPDES permit. Id. at 355. The New York DEC implemented stricter standards within the SPDES than what is required by the CWA. Id. at 358. The Second Circuit Court of Appeals held that since New York state would be implementing a regulatory scheme broader than the CWA, it would be barred from enforcement through Section 505 citizen suits. Atl. States 12 F.3d at 359–60. However, the EPA and state officials maintain jurisdiction to enforce violations of permits granted under the CWA. Id. 

Looking Forward

Following the Ninth Circuit decision, the Port has filed a petition for a writ of certiorari with the Supreme Court. Several parties, including the Chamber of Commerce, various shipping companies and 25 states have filed amicus briefs in support of the petitioners, and the matter has since been distributed for the Court’s conference. The differing interpretations of Section 505 affect states’ abilities to control the enforcement of their own regulations, and it may be time for the Supreme Court to decide how far Congress intended the citizen suit provision to stretch when passing the CWA.

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