Supreme Court Rules in Favor of Local Government in Important Clean Water Act Case

In a 5-4 decision, the Supreme Court of the United States has struck down two conditions in San Francisco’s Clean Water Act (CWA) National Pollution Discharge Elimination System (NPDES) permit for its treatment facility that discharges combined wastewater and stormwater into the Pacific Ocean. This is a very significant decision for communities in Massachusetts holding a NPDES permit.  

In City and County of San Francisco v. EPA, San Francisco challenged the validity of “end-result” NPDES permit requirements. These “end-result” requirements purported to make the City responsibility for the quality of the water that receives its discharge, as opposed from other permit conditions that address the quality of the water that is being discharged into the receiving water.  In challenging these requirements, the City argued that all limitations imposed must qualify as effluent limitations, meaning limits on discharges directly from a point source. The City also argued that, even if the requirements were not limited to effluent limitations, the EPA was not authorized to impose requirements that condition compliance on overall receiving water quality standards. 

The Court rejected the City’s first argument, making it clear that permit requirements are not limited to restricting effluent discharges. The Court reasoned that the CWA explicitly provides for “any more stringent limitations” without using the word “effluent,” and highlighted other provisions of the CWA that refer to both “effluent” limitations and other limitations to control discharges of pollution.  

The Court agreed, however, with the city’s second argument, holding that the EPA exceeded its statutory authority by imposing the end-result requirements. The Court explained that the CWA does not authorize the EPA to impose open-ended directives tied to overall water quality. Rather, permits must include specific, quantifiable limitations on discharges so the permit holder knows what is required of it before discharge. The Court concluded that the CWA, “authorizes EPA to set rules that a permittee must follow in order to achieve a desired result, namely, a certain degree of water quality” and that achieving such a result requires “concrete measures.” The Court explained that “[s]imply telling a permittee to ensure that the end result is reached is not a ‘concrete plan’ for achieving the desired result.” 

The Court acknowledged that liability for violations of the CWA can reach “enormous sums.” This decision allows local government to take advantage of the “permit shield” provision, which allows protection from liability for permittees that comply with the terms of the permit. It will also help local government understand their obligations under the Act by requiring the EPA to provide more clarity on requirements in permits going forward. 

The case is significant for NPDES permit holders across the country. Receiving water limits have commonly been used to afford added layers of “end-result” requirements, backed by the prospect of enforcement. Such conditions may now be invalid.