Justices Hold EPA Exceeded Its Authority With SF Water Permit

WASHINGTON — The Supreme Court on Tuesday ruled the Environmental Protection Agency exceeded its authority by adding vague and superfluous requirements to San Francisco’s wastewater system permit.

The ruling could have sweeping implications as many major cities across the United States have public waste systems similar to the one employed by the City of San Francisco, systems that collect both wastewater and stormwater.

However, Justice Samuel Alito Jr., who wrote the opinion for the court, said it anticipates no adverse impact on water quality will occur as a result of the ruling.

The case before the high court, San Francisco v. EPA, was argued in October. During those arguments, the city argued that relatively recent limitations added to its permit for discharges of wastewater into the Pacific Ocean violate the Clean Water Act.

Because their sewer systems collect both sewage and stormwater runoff, San Francisco and cities with similar operations face a common challenge.

During heavy rains, the system can exceed its capacity, resulting in combined sewer overflows that discharge pollutants. In San Francisco’s case, those discharges go into the Pacific Ocean. 

The Clean Water Act requires cities like San Francisco to obtain a National Pollutant Discharge Elimination System permit for such discharges.

Five years ago, the EPA and the California Regional Water Quality Control Board issued a new National Pollutant Discharge Elimination System permit for San Francisco’s main treatment facility. 

But the city challenged two of its provisions: The first includes new prohibitions against violating water quality standards; the second mandates that it update its long-term wastewater plan.

The EPA denied San Francisco’s administrative appeal, and the 9th U.S. Circuit Court of Appeals denied the city’s petition for review.

On Tuesday, the Supreme Court said both entities got it wrong, and that the two provisions San Francisco challenged do indeed exceed the EPA’s authority.

According to the justices, it is the EPA’s responsibility to ensure that water quality standards are met, and Congress has “given it the tools to make that determination.”

However, nothing in the law authorizes the EPA to include so-called “end-result” provisions to National Pollutant Discharge Elimination System permits, the justices said.

“The text and structure of the CWA, as well as the history of federal water pollution legislation, make this clear,” Alito wrote. “And resorting to such requirements is not 

necessary to protect water quality. 

“The EPA may itself determine what a facility should do to protect water quality, and the agency has ample tools to obtain whatever information it needs to make that determination,” he continued. 

“If the EPA does its work, our holding should have no adverse effect on water quality,” Alito added. 

Chief Justice John Roberts, and Justices Clarence Thomas and Brett Kavanaugh joined the majority opinion in its authority, while Justice Neil Gorsuch joined all but a part of the ruling, a section which focused on the 9th Circuit’s interpretation of the law.

The 9th Circuit had concluded the EPA was authorized by law to impose “any” limitations ensuring applicable water quality standards are satisfied in a receiving body of water. 

Gorsuch was joined in his objection to this part by Justices Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson.

Barrett also filed a dissent to a section of the opinion in which she was joined by Justices Sotomayor, Kagan, and Jackson.

Under the Clean Water Act, the EPA and authorized state agencies issue permits that impose requirements on entities that wish to discharge “pollutants” into the waters of the United States. 

A critical component of the CWA regulatory scheme is the National Pollutant Discharge Elimination System, which makes it unlawful to discharge pollutants into covered bodies of water unless authorized by permit.

These permits typically include “effluent limitations” on discharges that restrict the “quantities, rates, and concentrations of chemical, physical, biological and other constituents.” 

Failure to comply with permit limitations exposes permittees to civil penalties and even criminal prosecution. Under what is known as the “permit shield” provision, however, an entity that adheres to the terms of its permit is deemed to be compliant with the act.

This case involved a challenge to “end-result” requirements — permit provisions that do not spell out what a permittee must do or refrain from doing but instead make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants.

In 1994, the EPA adopted its CSO Control Policy, which requires municipalities with combined systems to take prescribed measures and to develop and implement a Long-Term Control Plan, and provide for a two-phase permitting process. 

For many years afterwards, San Francisco’s NPDES permit for its Oceanside facility was renewed without controversy, but in 2019, the EPA issued a renewal permit that added two end-result requirements. 

The first of these prohibits the facility from making any discharge that “contribute[s] to a violation of any applicable water quality standard” for receiving waters. The second provides that the City cannot perform any treatment or make any discharge that “create[s] pollution, contamination, or nuisance as defined by the California Water Code, section 13050.” 

San Francisco filed an appeal that ultimately led to losses until it got to the Supreme Court.

Dan can be reached at [email protected] and @DanMcCue