The U.S. Supreme Court on March 4 issued a 5-4 decision in which it held that the Environmental Protection Agency lacks authority under the Clean Water Act to set restrictions in water pollutant discharge permits that achieve an “end-result” for receiving waters, finding that it is the agency’s responsibility to determine the steps a permittee must take to ensure water quality standards are met.
The court made its ruling in City and County of San Francisco v. Environmental Protection Agency, No. 23-753.
The issue is whether the CWA authorizes the EPA to issue San Francisco a national pollutant discharge elimination system (NPDES) permit that conditions compliance with the permit on whether receiving waters meet applicable water quality standards.
The city and county of San Francisco operates two combined wastewater treatment facilities that process both wastewater and stormwater. These facilities may discharge untreated water into the Pacific Ocean or San Francisco Bay during heavy precipitation.
In 2019, the EPA issued a renewal permit for San Francisco's Oceanside facility, adding two "end-result" requirements. These requirements prohibited discharges that contribute to violations of water quality standards and discharges that create pollution, contamination, or nuisance as defined by California law. San Francisco challenged these provisions, arguing they exceeded the EPA's statutory authority.
The California Regional Water Quality Control Board and the EPA approved the final Oceanside NPDES permit. San Francisco appealed to the EPA's Environmental Appeals Board, which rejected the challenge. The city then petitioned for review in the U.S. Court of Appeals for the Ninth Circuit, which denied the petition. The Ninth Circuit held that the CWA authorizes the EPA to impose any limitations necessary to ensure water quality standards are met in receiving waters.
The Supreme Court’s ruling reverses the lower court decision and remands the case. EPA must set specific rules for permittees rather than imposing broad end-result requirements. Now what court has struck down narrative effluent prohibitions as contrary to the CWA, NPDES permittees would benefit from a stronger permit shield while simultaneously making it easier for permittees to defend against permit challenges from EPA, state agencies, and even citizen suits.
