A decision by the United States Supreme Court in a Clean Water Act case in March drew mixed reactions, with some saying the ruling could have implications for the future quality of U.S. water bodies.
The Supreme Court ruling of mention was the case, City and County of San Francisco v. EPA. The case challenged the ability of EPA and states with delegated Clean Water Act programs to impose what the industry called “vague” narrative standards in discharge permits issued for sewer overflows.
The National Association of Clean Water Agencies (NACWA), which represents public wastewater and stormwater agencies of all sizes nationwide, said it supports the decision by the Supreme Court, saying it will strike down “vague” language in Clean Water Act permits.
In July 2024, NACWA led an amicus brief in support of an appeal by the San Francisco Public Utilities Commission (SFPUC) to the Supreme Court. Nineteen utilities representing major U.S. cities and eight state and regional clean water associations joined NACWA in asking the court to strike down vague language in discharge permits. The municipalities argued that EPA’s inclusion of narrative standards in permits go beyond what is allowed under the Clean Water Act and that such standards open up wastewater systems to violations and fines based on non-specific effluent discharge limits.
According to a report in The New York Times citing comments from San Francisco’s attorney, city officials said they lacked the proper guidance on Clean Water Act compliance and were seeking clarification, adding the city had been exposed to criminal and civil penalties when it otherwise complied with a 300-page permit.
NACWA described the Supreme Court’s 5-4 decision against EPA as common sense and said it will help make Clean Water Act permits more transparent.
“[This] decision represents a major victory for clean water investment throughout the country,” NACWA CEO Adam Krantz said in a statement. “Public clean water utilities work 24/7 to protect human health and the environment and maintain and improve critical infrastructure. [This] commonsense decision will help ensure that the Clean Water Act continues to do exactly what Congress intended – keep our nation’s waters clean and healthy through the imposition of clear, science-based requirements.
“When Clean Water Act permits are transparent and implementable, utilities can invest public dollars in projects that protect water quality instead of guessing what those projects should be.”
Some news reports in March suggested the ruling could have negative impacts on water quality in San Francisco and water bodies around the country since the decision, in essence, weakens the power of the Clean Water Act. But Krantz and NACWA said that’s not the case, explaining that the decision is more about the language in the permits rather than something that could negatively affect water quality in the future.
“As the Supreme Court said at the outset of the decision, the language objected to by San Francisco and public clean water utilities around the country is not necessary to protect water quality,” Krantz said. “To the contrary, the permitting certainty provided by the decision will help utilities more efficiently and effectively improve water quality and protect public health.
“NACWA is pleased to have led an amicus brief in this case that was joined by public utilities from across the nation and was cited by the Court in its decision.”
NACWA has been involved in the case since it began in 2020.
Melissa Reynolds, environmental partner at law firm Holland & Hart, which litigates Clean Water Act cases, said that it’s too early to know the future effect on water quality but that any strong claims of negative impacts are not accurate.
“It is very difficult to predict what, if any, effect the decision will have on water quality. Therefore, claims that this decision will, with absolute certainty, have a negative impact on water quality are indeed misleading, particularly because the decision only invalidated one type of permit limitation — so-called ‘end-result’ requirements,” Reynolds said.
Reynolds added it’s important to keep in mind that the decision did not impact other limitations that are often the most critical for protecting water quality. Those other limitations — numeric effluent limitations and narrative limitations that would not be considered “end-result” requirements — are still valid and enforceable.
“Permitting authorities must still incorporate permit limitations to ensure that water quality standards of receiving waters are met, but they can no longer rely on end-result requirements to do so,” she explained.
“In a lot of cases, the end-result requirements in permits are really just catch-all provisions, and in those cases, it’s possible that the remaining valid limitations are sufficiently protective of water quality. But for other permits, the state or EPA could determine that additional limitations are needed to ensure that water quality standards are met. It really just depends on how much a permit relies on end-result requirements for those protections. While permitting agencies are not likely to immediately go through all individual permits and identify those which require additional limitations, this is likely to occur at the permit renewal or modification stage.”
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