On October 16, the US Supreme Court heard arguments in City of San Francisco v. EPA, a case that focuses on EPA rules governing how much sewage may be discharged into the Pacific Ocean from San Francisco’s combined stormwater and wastewater treatment system.
The California Water Resources Control Board issued the City’s Clean Water Act (CWA) discharge permit under EPA regulations that include 100 pages of detailed rules on effluent limits and general non-specific narrative restriction to protect water quality. That narrative condition states “no discharge of pollutants shall create pollution, contamination or nuisance” as defined by California water law. The Board included that condition to address problems with the City’s treatment system, which overflowed during heavy rains and discharged untreated wastewater and stormwater directly into the Pacific.
The issue is whether the permit is consistent with the Act. San Francisco estimates that meeting the federal permit would require more than $10.6 billion in upgrades to its treatment plant.
During the argument, Justices Roberts, Thomas and Kavanaugh seemed skeptical about whether the CWA provides specific authority for imposing that condition. Justice Roberts focused on the fact the narrative restriction “didn’t tell people in any predictable way what they can or cannot do.”
The more liberal justices lead by Justice Kagan seemed to support EPA’s interpretation. She asked San Francisco’s attorney, "What in the statute prevents the agency from saying… you can only discharge X amount [because] we want to set a goal, and we want you… to not contribute to violating that goal.” Justice Sotomayor focused on the practicalities of how much pollution should be allowed to be discharged
The ruling, expected by the end of the Court’s term next June, could have profound impacts beyond San Francisco. For years, general non-numeric requirements to protect water quality have been included in CWA permits issued to municipalities, industries and developers by the EPA alone or by a state approved by EPA to issue such permits. This has often resulted in considerable cost to treat stormwater and wastewater to meet water quality standards even though the permittee was complying with specific technology-based criteria.
Given the Court’s 6-3 conservative majority, the Court could apply its Loper Bright standard (see previous blog here) to find that the express language of the CWA did not authorize such narrative conditions and that the effect of EPA’s action was to impose an undue burden and expense in trying to meet ill-defined water quality criteria. If the Court rules that way, EPA and States issuing such permits would have to provide more specific permit conditions. For example, permits may have to better identify the amounts, volumes and composition of effluent discharges to meet water quality criteria of the receiving water.
Such conditions could be difficult to develop but could provide the public with more information needed to assure that waters used for recreation and drinking water will be safe.
Larry Liebesman
Senior Advisor
A nationally recognized environmental lawyer with more than 40 years of experience, including 11 years at the U.S. Justice Department, Larry specializes in federal Clean Water and Endangered Species Acts and the National Environmental Policy Act (NEPA).
The views expressed here are those of the author and do not necessarily reflect the views of Dawson & Associates.
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