AGC Submits Brief to U.S. Supreme Court Supporting Clarity in Clean Water Permits

The U.S. Supreme Court will hear a case later this year on whether Clean Water Act (CWA) NPDES (National Pollutant Discharge Elimination System) permits can include generic prohibitions that threaten the certainty that construction companies need to comply with environmental requirements. AGC recently submitted a friend of the court brief advocating for clarity to protect contractors from enforcement and costly fines due to vague NPDES permit language. AGC seeks to ensure that the Supreme Court's decision preserves the successful permitting approaches used in construction general stormwater permits (CGP) issued by the U.S. EPA and states.

In its brief, AGC and its partners explain why unambiguous language is necessary within the permitting framework. Contractors routinely seek NPDES permits and rely on the legal protection that operating under a CWA permit provides - referred to as the "permit shield." Permit writers are responsible for providing clear and specific permit language on compliance obligations. However, AGC members have encountered generic prohibitions, such as the disputed "cannot cause or contribute to a violation of water quality standards" language at issue in this case, in permits nationwide. This generic language does not provide a clear compliance path for permittees and exposes them to enforcement, criminal penalties, and citizen suits even when they adhere to their permit.

The brief also informs the Court about the NPDES program's application to the construction industry. Within the permitting program, water quality is protected by pollutant-specific "effluent limitations." Examples of effluent limitations include technology-based requirements such as best management practices (BMPs) or specific operational requirements or prohibitions. Other examples are numerical technology-based and water quality-based effluent limitations when needed to protect water quality. Permitting authorities can choose a mix of effluent limitations. General permits for construction stormwater typically employ BMPs, good housekeeping practices, pollution prevention plans, inspections, and reporting.

Earlier this year, AGC filed a separate coalition amicus brief asking the Supreme Court to hear the case. The case is City and County of San Francisco v. U.S. Environmental Protection Agency,No. 23-752.

AGC's involvement in this case was made possible thanks to your contributions to the Construction Advocacy Fund. Keep up with the latest AGC Judicial Advocacy News. For additional information, please contact AGC's Leah Pilconis at [email protected] or Melinda Tomaino at [email protected].