Supreme Court limits EPA's permitting authority under the Clean Water Act
The Supreme Court recently ruled that the Clean Water Act (CWA) does not authorize the Environmental Protection Agency (EPA) to impose “generic” or “end-result” prohibitions in National Pollutant Discharge Elimination System (NPDES) permits for receiving waters, reversing the Ninth Circuit’s ruling. In San Francisco v. U.S. Environmental Protection Agency, the Court found that two generic prohibitions included in San Francisco’s NPDES permit for its wastewater treatment plant exceeded the EPA’s authority under the CWA, resulting in a narrow victory for San Francisco.
As directed by Congress, the EPA administers the CWA, and authorized state agencies issue permits setting effluent limitations (ie, restrictions on the discharge of “pollutants”). In NPDES permits, the EPA typically includes other requirements a permittee must meet, such as incorporating specific actions to reduce discharges, record-keeping, testing, and reporting requirements. Violations of the CWA and failure to comply with an applicable NPDES permit may lead to civil penalties and criminal prosecution.
Background
San Francisco challenged the following two generic prohibitions in its NPDES permit approved by the EPA and the California Regional Water Quality Control Board for the San Francisco region:
- The facility cannot make any discharge that “contribute[s] to a violation of any applicable water quality standard” for receiving waters, and
- The city cannot perform any treatment or make any discharge that “create[s] pollution, contamination, or nuisance” as defined under California’s Water Code.
Justice Samuel Alito, writing for a 5-4 majority, held that the CWA does not allow the EPA to include such prohibitions in NPDES permits, emphasizing that the CWA requires the EPA to impose requirements to “implement” water quality standards through concrete measures, rather than simply mandating an end result.
These generic prohibitions did not spell out what the city must do to comply with its NPDES permit; rather, they made the city responsible for the quality of the receiving water. Upon reviewing the city’s appeal to the EPA’s Environmental Appeal Board, the Ninth Circuit, in a divided opinion, upheld broad authority for the EPA, determining that the agency may include in San Francisco’s NPDES permit “any” limitation necessary to ensure that applicable water quality standards are satisfied in a receiving body of water.
The Supreme Court reversed the Ninth Circuit’s ruling finding that the CWA “tells the EPA to impose requirements to ‘implement’ water quality standards – that is, to ‘ensure’ ‘by concrete measures’ that they are ‘actual[ly]’ ‘fulfill[ed].” Slip Op. at 11. The Court also found that “simply telling a permittee to ensure an end result,” such as “the facility cannot contribute to a violation of any applicable water quality standard,” is unlawful. Id.
Implications of the Supreme Court’s ruling
Notably, several justices joined an opinion dissenting in part written by Justice Amy Coney Barrett, raising the concern that generic prohibitions are of value to the regulated community because they provide needed flexibility to permittees, and that proscribing specific effluent limitations may delay the issuance of permits. Several municipalities and other permittees supported San Francisco’s position, however, and early input from industry groups welcomed the decision as a victory for greater clarity, specificity, and certainty regarding compliance efforts for permittees.
This ruling will affect thousands of CWA permits across the country, creating potential vulnerabilities, legal challenges, and uncertainties for regulated entities in existing permits. The Supreme Court’s ruling emphasizes that the EPA can use its enforcement authority to obtain necessary information and issue CWA-compliant permits. If the decision motivates state and federal permit writers – particularly in environmentally “stricter” states – to replace “end-result” provisions with specific limits, it could lead to increased demands for information from regulated entities, more prescriptive permits with additional quantitative limits, and potentially longer lead times for permit drafting.
Looking ahead
The Supreme Court’s decision in San Francisco v. U.S. Environmental Protection Agency marks a significant shift in the regulatory landscape by rendering existing NPDES permit end-result provisions potentially unenforceable. While the ruling provides clarity on the limits of the EPA’s authority, it introduces uncertainties and potential legal risks for regulated entities. DLA Piper’s Environmental practice group is assisting businesses in navigating these changes and addressing issues that arise under the CWA.
If you have questions about the implications of this case or need assistance, please contact the authors.
