In a split decision in City and County of San Francisco, California v. Environmental Protection Agency, the United States Supreme Court held the Clean Water Act (CWA) does not authorize the Environmental Protection Agency (EPA) to include general narrative prohibitions in National Pollutant Discharge Elimination System (NPDES) permits. The Court called such prohibitions “end-result” requirements or provisions and described them as provisions that “make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants.” The Court found that these end-result provisions exceed EPA’s permitting authority under the CWA.

The end-result provisions at issue in this case are found in the City of San Francisco’s (“City” or “San Francisco”) NPDES permits for its combined sewer system, specifically the permit for the Oceanside treatment plant. The Oceanside facility discharges into the Pacific Ocean, with the primary discharge point (one of eight authorized discharge points) through an ocean outfall that is more than three miles from the shore in United States waters. Accordingly, both the California Regional Water Quality Control Board for the San Francisco Region and EPA approve the City’s NPDES permit for the Oceanside facility.

The City challenged two requirements in its 2019 permit. The first requirement states that the discharge shall not cause or contribute to a violation of any water quality standard for receiving waters. The second requirement states that neither the treatment nor the discharge of pollutants shall create pollution, contamination, or nuisance as defined by California Water Code section 13050. San Francisco sought review of these requirements, among others from its permit, in an administrative appeal to EPA’s Environmental Appeals Board, and then in a petition for review to the Ninth Circuit Court of Appeals, challenging the EPA’s authority to include these limitations in their permit. The Ninth Circuit did not find San Francisco’s argument persuasive, instead holding that the EPA has the authority to impose “any” limitations that seek to ensure that applicable water quality standards are satisfied in a receiving water. The Supreme Court reversed.

The Court first addressed San Francisco’s argument that all “limitations” under 33 U.S.C. § 1311 qualify as effluent limitations (statutory citations hereafter refer to 33 U.S.C., unless otherwise noted). The Court disagreed, found the exclusion of the term “effluent” in section 1311(b)(1)(C), compared to sections 1311(b)(1)(A) and (B), indicative of Congress’s intent, and held that not all “limitations” under section 1311 must be effluent limitations.

The Court did agree with San Francisco’s other argument that section 1311(b)(1)(C) does not authorize the EPA to impose end-result requirements in NPDES permits. After a detailed statutory interpretation analysis focusing on the meaning of the terms “limitation,” “implement,” and “meet,” the Court reasoned that a limitation that must be implemented or that is required to meet an objective is naturally understood to mean a provision that sets out clear actions. The Court also compared the Water Pollution Control Act, the predecessor statute to the current CWA, and noted that the CWA omitted similar “end-result” provisions. The Court found the omission persuasive as it evidences Congress’s intent to achieve water quality standards by setting direct restrictions on discharges.

The Court clarified that its decision allows “narrative limitations other than end-result requirements” that require compliance with “best-management practices” and “operational requirements and prohibitions.” It is also clear from the ruling that the general narrative prohibitions quoted from the City’s NPDES permit are not authorized under the CWA.

However, in describing the general narrative prohibitions in the City’s NPDES permits, the Court’s language around “receiving water limitations” and “end-result requirements” leaves some question as to whether its ruling also applies to narrative receiving water limitations. Indeed, the “end-result requirements”—a term from the majority opinion—are referred to as “receiving water limitations” by the dissent. The Court’s discussion of the meaning of “limitations” under section 1311(b)(1)(C) (i.e., water quality-based effluent limitations) also leaves some confusion as to what may qualify as a “direct restriction” on a discharge rather than an “end result” in a receiving water, the latter of which is not authorized.

Of course, the opinion concerns a NPDES permit jointly approved by EPA and the State of California, through the regional water quality control board. The California State Water Resources Control Board and the nine regional water quality control boards administer the NPDES program but also regulate waste discharges under state law under the Porter-Cologne Water Control Act. As dischargers evaluate the decision’s implications, another major question is how California state agencies respond using their authority under Porter-Cologne.

The Court’s full opinion can be found here. For additional information on this case and implications for water quality permitting, please contact Brittany Johnson at bjohnson@somachlaw.com.

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