U.S. Supreme Court Ruling Will Make it Easier to Comply with NPDES Permits

March 4, 2025

Maureen Bayer - Tonkon Torp LLP

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On March 4, 2025 the Supreme Court overturned the 9th Circuit to rule in favor of the City of San Francisco in a landmark Clean Water Act case. The EPA authorizes states to issue National Pollutant Discharge Elimination System (NPDES) permits, which allow the discharge of certain pollutants in wastewater to bodies of water under certain conditions. The issue in this case relates to the conditions that can be required in NPDES permits which typically include “effluent limitations” on discharges that restrict the “quantities, rates, and concentrations of chemical, physical, biological, and other constituents” [§1362(11)]. This case involved San Francisco’s challenge to “end-result” requirements in the permit. These are provisions that do not spell out what a permittee must do or not do, but instead make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants.

San Francisco operates two combined sewer overflow treatment facilities, where both sewage and stormwater is treated before being discharged. However, when heavy rains occur the capacity of the treatment facility can be exceeded and result in untreated discharge to the Pacific Ocean. In 2019 requirements were added to the City’s permit prohibiting the facility from making any discharge that “contribute[s] to a violation of any applicable water quality standard” for receiving waters. In addition, the permit prohibited the City from creating pollution, contamination, or nuisance as defined by California Water Code section 13050. The City could be heavily penalized for violations of these provisions, even though it was never put on notice that it was obligated to take any specific step. These “end-result” requirements were challenged by the City as being beyond the authority of the Clean Water Act.

The Supreme Court agreed, finding that the Clean Water Act does not authorize the EPA to include “end-result” provisions in NPDES permits. The Supreme Court relied upon the text and structure of the CWA, as well as the history of federal water pollution legislation, writing, “Determining what steps a permittee must take to ensure that water quality standards are met is the EPA’s responsibility, and Congress has given it the tools needed to make that determination.” This decision should make it easier to comply with NPDES permits because requirements will need to be spelled out specifically, rather than putting it on the permittee to meet certain water quality standards.

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