The Supreme Court recently issued a decision in City & County of San Francisco v. Environmental Protection Agency, which clarifies the authority of federal and state environmental enforcement agencies to include limitations in pollutant-discharge permits. The Court held the Environmental Protection Agency (“EPA”) has authority to specify the actions a permittee must take to ensure water quality, but the permit cannot make the permittee responsible for the quality of the water into which it discharges pollutants aside from detailing what the permittee must do or refrain from doing in order to achieve the desired result.
The National Pollutant Discharge Elimination System (“NPDES”) makes it unlawful to release pollutants into waters covered under the Clean Water Act (“CWA”) without a permit issued by the EPA or authorized state agencies. Permits detail the requirements a permittee must adhere to in order to lawfully discharge pollutants into waters of the United States. The EPA can incorporate a variety of requirements into an NPDES permit, including limitations on specific pollutants, or detailed procedures for testing, recording and reporting. San Francisco relates to a certain type of provision included in some permits, which implement “end-result” requirements. This type of provision makes the permittee responsible for the quality of the water body into which the permittee’s effluent is being discharged.
This case involved a wastewater treatment facility, owned by San Francisco, which processed both wastewater from homes and businesses, and stormwater runoff. This type of facility can be found in many cities around the country and presents a special problem—potential overflow during periods of heavy rains causing the release of untreated sewage. To combat this problem, the EPA implemented the Combined Sewer Overflow Control Policy (“CSO”), which was codified in 2000.
End-result requirements were added to the facility’s permit in 2019. One “prohibits the facility from making any discharge that ‘contribute[s] to a violation of any applicable water quality standard’ for receiving waters.” Another provides the facility and city cannot perform a treatment or make a discharge that “create[s] pollution, contamination, or nuisance as defined by California Water Code . . . .” The EPA’s Environmental Appeals Board and the Ninth Circuit Court of Appeals upheld the limitation as properly supported by the statutory text of the CWA. The Ninth Circuit based its opinion on 33 U.S.C. § 1311(b)(1)(C), holding the provision authorizes any limitations the EPA deems necessary to maintain applicable water quality standards in a receiving body of water.
San Francisco argued to the Supreme Court that the CWA provision does not authorize the EPA to impose permit requirements “that condition permitholders’ compliance on whether receiving waters meet applicable water quality standards.” The Court agreed. The Court’s reasoning is based in the usage of the words “limitation, “implement” and “meet” and their contexts in 33 U.S.C. § 1311. The definitions of these words and their usage show the provision is meant to allow for the requirements that certain actions be taken or refrained from in order to achieve a desired level of water quality in the receiving water. The statute does not allow for the requirement that a water quality level be achieved to be included in a permit meant to describe actions to achieve that water quality level.
Also, requiring facilities like the one in San Francisco and other permittees to be responsible for overall water quality despite being only one discharger into a water body of multiple dischargers could make them liable for penalties for results they did not cause. This problem cements the Supreme Court’s interpretation. A separate provision of the CWA contains a “permit shield,” by which an entity may avoid liability for inadvertent violations of the CWA or by adhering to the requirements of its permit. Without that provision, necessary entities like the one at issue in San Francisco could be subjected to extremely large penalties that might threaten their existence despite no fault of their own. End-result requirements would eliminate the effect of the CWA’s permit shield provision.
The Court’s decision in San Francisco eliminates end-result permitting requirements under the CWA and federal law. However, it is possible state environmental regulations could be written or interpreted differently to allow for end-result permitting requirements. This decision may affect the interpretation of similar state laws and related regulations, but state law may differ in certain ways that could make the Court’s analysis inapplicable. This will vary by state.
Commentators say this will make it more difficult for the EPA to include vague provisions in permits, in turn making it easier for affected entities to implement them. However, this may also make it more difficult to obtain the permits in the immediate future. This is due to the current backlog of NPDES permit applications, potential reduction in the EPA workforce, and work that this decision creates for the EPA regarding the clarification of NPDES permits with end-result provisions.