EPA Clean Water Act (CWA) wastewater regulations are set to face U.S. Supreme Court (SCOTUS) scrutiny.
In the case City and County of San Francisco v. EPA, San Francisco is suing the EPA over generic water quality prohibitions in permitting decisions.
“The EPA had urged the Supreme Court to decline the petition, insisting narrative limitations were within its right,” according to Newsweek.
On May 28, 2024, SCOTUS agreed to hear the case.
“Rather than specify pollutant limits that tell the permitholder how much they need to control their discharges as required by the CWA, these prohibitions effectively tell permitholders nothing more than to cause ‘too much’ pollution,” states the San Francisco SCOTUS petition. “These generic water quality terms expose San Francisco and numerous permitholders nationwide to enforcement limits while failing to tell them how much they need to limit or treat their discharges to comply with the Act.”
The question presented to SCOTUS is “whether the CWA allows EPA (or authorized state) to impose generic prohibitions in [National Pollutant Discharge Elimination System (NPDES)] permits that subject permitholders to enforcement for exceedances of water quality standards without identifying specific limits to which their discharges must conform.”
These generic standards leave too much to the imagination for San Fracisco after the city and county “spent billions of dollars on upgrades on water infrastructure upgrades,” notes Courthouse News Service.
Permits issued under NPDES allow permitholders to release certain pollutants as an exception under the CWA.
“In 2019, the EPA and California published permit requirements for the Oceanside water system, which collects wastewater from 250,000 residents in western San Francisco and flows directly into the Pacific Ocean at several junctions — including near the shoreline and its public beaches,” the Courthouse News Service article says. “Under the rules, San Francisco may not release any materials into the ocean that would violate water quality standards or create pollution — a framework the city argues is too vague and doesn't quantify which pollutants the city would need to control, instead using ‘narrative’ limitations that violate the [CWA].
“The Environmental Appeals Board rejected the city’s complaint, finding the EPA’s standards to be clear. The Ninth Circuit refused to review the decision on appeal.”
Although the groups make strange bedfellows with the liberal city and county, trade groups, including the National Mining Association, the U.S. Chamber of Commerce, the National Association of Manufacturers, the Associated General Contractors of America, and the National Pork Producers Council, joined forces in filing an amicus curiae (friend of the court) brief in support of San Francisco’s petition. The trade groups’ petition states its members “will likely see drastically increased liability and exposure for alleged violations of such permits” if the 9th Circuit’s decision stands.
Jeff Porter, environmental law chair at Mintz, Levin, Cohn, Ferris, Glovsky and Popeo P.C., predicts that “[SCOTUS] is going to find in San Francisco’s favor, striking down or at least severely limiting EPA’s longstanding practice of [including permit conditions prohibiting discharges that ‘cause or contribute to violations of applicable water quality standards’].”