The recent U.S. Supreme Court decision in City and County of San Francisco v. Environmental Protection Agency has significant implications for wastewater dischargers and the environment. In short, the EPA must set specific, measurable discharge limitations that the permittee can control, and the NPDES permits must focus on clear, actionable discharge limits. Gone are the days when point source dischargers can help nebulous end-results in an open water body.
The Case
According to the Supreme Court of the United States (SCOTUS) opinion (March 4, 2025), “this case involves a challenge to “end-result requirements” permit provisions that do not spell out what a permittee must do or refrain from doing but instead make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants. “
The City of San Francisco operates two combined wastewater treatment facilities that process both wastewater and stormwater. During periods of heavy precipitation, the combination of wastewater and stormwater may exceed the facility’s capacity, and the result may be the discharge of untreated water, including raw sewage, into the Pacific Ocean or the San Francisco Bay.
In 1994, the EPA adopted its combine sewer overflow (CSO) Control Policy. The policy requires municipalities with combined systems to take prescribed measures and to develop and implement a Long-Term Control Plan. It is a two-phase permitting process.
San Francisco's NPDES permit for its Oceanside facility was renewed without controversy for many years. However, in 2019, the EPA issued a renewal permit that added two end-result requirements.
Prohibits the facility from making any discharge that “contribute[s] to a violation of any applicable water quality standard” for receiving waters.
Provides that the City cannot perform any treatment or make any discharge that “create[s] pollution, contamination, or nuisance as defined by California Water Code section 13050.”
The County and City of San Francisco argued that both of these were not in accordance with the Clean Water Act. The Clean Water Act (CWA) establishes the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters.
The basis of the CWA was enacted in 1948 and was called the Federal Water Pollution Control Act, but the Act was significantly reorganized and expanded in 1972. "Clean Water Act" became the Act's common name with amendments in 1972.
Section 1311 of the CWA is part of Subchapter III covers Standards and Enforcement.
The Supreme Court’s Opinion
The Supreme Court held in San Francisco’s favor on the primary issues.
Section 1311(b)(1)(C) does not authorize the EPA to include "end-result" provisions in NPDES permits. 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.
Section 1311(b)(1)(C) does not authorize permit requirements conditioning compliance on receiving water quality. The provision’s text, structure, and context support this interpretation.
The agency has adequate tools to obtain needed information from permittees without resorting to end-result requirements. Its reliance on the Combined Sewer Overflow Policy is misplaced as that policy authorizes narrative limitations but not end-result requirements. And concerns about disrupting general permits are unfounded given that narrative limitations remain available.
Barrett’s Dissent - discoloration, scum, and toilet paper
I like to look at dissenting opinions for insights. This is especially true then the dissenting opinion is from someone normally in the majority.
Justice Amy Coney Barrett, a Trump Appointee, wrote the dissenting opinion. These are a few of her summary comments:
On Supplemental Limitations
The City's permit thus tracks the structure of §1311(b). It restrains discharges initially through technology-based effluent limitations, as required by §1311(b)(1)(A). But because the effluent limitations may be insufficient to ensure that California's water quality standards are met, the permit contains supplemental limitations, as required by 1311(b)(1)(C).
The concern that the technology-based effluent limitations may fall short is on display in this case—discharges from components of San Francisco’s sewer system have allegedly led to serious breaches of the water quality standards, such as “discoloration, scum, and floating material, including toilet paper, in Mission Creek.” The receiving water limitations imposed under 1311(b)(1)(C) are included to ensure that such breaches do not occur.
All Discharges Are Presumptively Unlawful
Under the old system, the United States could bring abatement actions only after the pollution had already occurred. A glaring problem with this approach is that an ex-post enforcement regime does not adequately deter polluters or prevent pollution. Making matters worse, this regime involved “cumbrous enforcement procedures” that made it next to impossible to bring abatement actions.
Congress chose a different regulatory model when it adopted the Act in 1972. The Act renders all discharges presumptively unlawful. Then, under the current ex ante permitting regime, EPA authorizes only those discharges that comply with the Act. Should a permittee fail to comply with the terms of its permit, EPA has broad authority to sue.
What The SCOTUS Opinion Means to Wastewater Dischargers and the Environment
The recent U.S. Supreme Court decision in City and County of San Francisco v. Environmental Protection Agency has significant implications for wastewater dischargers and the environment. In short, the EPA must set specific, measurable discharge limitations that the permittee can control and the NPDES permits must focus on clear, actionable discharge limits. Gone are the days when point source dischargers can help nebulous end-results in an open water body.
Wastewater will need to ensure their operations comply with the specific effluent limitations outlined in their NPDES permits. Wastewater dischargers may need to work with permitting authorities to revise existing permits to remove or replace any "end-result" provisions with clear, actionable discharge limits. State regulatory agencies will need to develop clear guidelines and methodologies for translating water quality standards into precise effluent limitations within permits.
References
City and County of San Francisco v. Environmental Protection Agency, No. 23-753 (U.S. March 4, 2025).
USEPA CWA website
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