On June 30, 2025, the Supreme Court denied the Port of Tacoma (the “Port”) and SSA Terminals LLC's (“SSA”) petition for writ of certiorari to review the 9^th Circuit’s decision in Port of Tacoma v. Puget Soundkeeper Alliance addressing whether the Clean Water Act (“CWA”) authorizes citizens to enforce conditions of state-issued pollutant discharge permits adopted under state law that impose a greater scope of coverage than required by the CWA.  The 9th Circuit answered this question in the affirmative, holding that Washington's Industrial Stormwater General Permits (“ISGP”), a CWA National Pollutant Discharge Elimination System (“NPDES”) permit, required the Port and SSA to have the necessary stormwater controls across the entire West Sitcum Terminal (the “Terminal”).  The Supreme Court's recent decision to deny certiorari leaves litigants open to a patchwork of Circuit determinations on the scope of the CWA’s citizen suit provision. 

As the 9^th Circuit explained, under the CWA, persons are required to obtain NPDES Permits for certain stormwater discharges, including those “associated with industrial activities.”  “The Terminal is such a facility, but the [federal] regulations do not require it to control every discharge of stormwater.”  Specifically, EPA’s regulations implementing the CWA require controls for “only those portions of the facility that are…involved in vehicle maintenance…, equipment cleaning operations, [or] airport deicing operations.”  The so-called Wharf portion of the Terminal did not have such activities or the resulting discharges.  Therefore, under the federal standard, the Port and SSA would not need a NPDES permit for the Wharf discharges. 

The state of Washington, however, like many other states, has implemented regulations which go beyond the federal standards.  Under the CWA, the EPA has delegated authority to issue NPDES permits to most states, including the state of Washington.  To receive such delegation of authority, states are required to have NPDES programs that are at least as stringent as the EPA’s program.  Here, Washington decided to go beyond the federal standard by having the ISGP apply to the entirety of transportation facilities and not to “only those portions of the facility that are…involved in vehicle maintenance…, equipment cleaning operations, [or] airport deicing operations.”

The Puget Soundkeeper Alliance brought a citizen-suit against the Port and SSA under Section 505 of the CWA, 33 U.S.C. § 1365, claiming that discharges from the Wharf require ISGP permit controls.  The Port and SSA argued that the state’s regulations “are not enforceable in a citizen suit because they exceed the requirements of the federal regulations.”  The 9^th Circuit rejected this position, relying on the plain language of the CWA's citizen suit provision which permits any citizen to commence a civil action against any person “who is alleged to be in violation of…an effluent standard or limitation.”  The definition of “effluent standard of limitation” includes “a permit or condition of” a NPDES permit.  Therefore, the 9th Circuit concluded, because the ISGP is a NPDES permit, citizens can seek to enforce a violation of any of its conditions under the CWA.  Notably, in reaching this conclusion the 9th Circuit recognized that the 2nd Circuit seemed to have reached the opposite conclusion in Atlantic States Legal Foundation, Inc. v. Eastman Kodak Co.

The Supreme Court's denial of the writ for certiorari leaves to the Circuit and district courts the question of whether the CWA permits citizen enforcement of state-issued pollutant discharge permits that impose a greater scope of coverage than CWA requirements.  As the Port and SSA discussed in their petition for a writ of certiorari, there is a split amongst courts that have addressed this question, with the 4^th and 11^th Circuits as well as various district courts agreeing with the 9th Circuit, contrary to the 2^nd Circuit’s decision in Atlantic States Legal Foundation, Inc.

Given the current state of EPA enforcement, this decision may have significant implications. Under a federal administration that is making efforts to cut EPA's budget and staff, the enforcement void this creates may be taken up by citizen groups, increasing the potential number of CWA citizen suits.  Without clarity from the Supreme Court, the scope of the CWA’s citizen suit provision will vary depending on the geographical location of a suit.  In courts adhering to the 9^th Circuit’s rule, parties will have available the remedies under the CWA, such as injunctive relief, civil penalties paid to US treasury, attorneys fees, expert witness fees, and other litigation costs for violations of state standards.  In courts adhering to the 2^nd Circuit’s rule, such federal remedies will not be available (though citizen groups may seek similar relief under other state statutes).  Ultimately, following the Supreme Court’s denial of certioriari in Port of Tacoma v. Puget Soundkeeper Alliance, the permissibility of citizen suits seeking enforcement of conditions of state-issued pollutant discharge permits that impose greater requirements than those required by the CWA as well as the remedies available will depend significantly on the venue in which the action is filed.

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