Environmental & Natural Resources Law
Supreme Court Decision Casts Doubt on Common Stormwater and Wastewater Permit Terms
By Sean M. Sherlock
In a decision of the U.S. Supreme Court under the federal Clean Water Act, the Court threw out two requirements in the City of San Francisco’s wastewater discharge permit. The same or similar requirements are probably in your wastewater and stormwater discharge permits.
City and County of San Francisco v. EPA
The City and County of San Francisco (“City”) applied for and received a permit from the State of California and the US EPA to discharge wastewater and stormwater into the Pacific Ocean. The City objected to two permit terms – commonly known as “receiving water limitations.”
Receiving water limitations differ from technology-based effluent limitations. Technology-based effluent limitations are, in general, objective, numeric standards that prescribe the maximum concentrations of pollutants in wastewater based on what is achievable using the best available technology. Receiving water limitations, on the other hand, are requirements focused on maintaining the quality of the body of water into which wastewater is discharged. Some receiving water limitations can be clear and objective requirements. Others less so.
One of the receiving water limitations at issue in San Francisco’s permit prohibits the City from discharging wastewater that “contribute[s] to a violation of any applicable water quality standard” for the ocean. The other 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.”
Unlike the technology-based effluent limitations in the permit, the offending nature of these receiving water limitations is that they “do not spell out what a permittee must do or refrain from doing; rather, they make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants.” The Court’s majority opinion (Justice Alito, joined by Justices Roberts, Thomas, and Kavanaugh, with Gorsuch joining in part), held as a matter of statutory construction, and without reaching any constitutional issues, that the Clean Water Act “authorizes the EPA to set rules that a permittee must follow in order to achieve a desired result, namely, a certain degree of water quality.” But the Clean Water Act does not authorize the EPA to hold a permittee liable merely because the quality of the water into which it discharges pollutants fails to meet water quality standards.
Writing for the dissent, Justice Barrett (joined by Justices Sotomayor, Kagan, and Jackson), found the statutory language flexible enough to permit the challenged receiving water limitations. She opined that if receiving water limitations are vague or unreasonable they are vulnerable to challenge as arbitrary and capricious. The majority did not accept that individual arbitrary-and-capricious challenges would provide adequate protection for permittees, considering that “a permittee’s potential liability could reach astronomical proportions before the challenge was finally resolved” – a sentiment underlying the Court’s unanimous 2012 opinion in Sackett v. EPA.
Impact to the Real Estate Development Industry
The receiving water limitations thrown out in this case are very common in wastewater and stormwater discharge permits – including California’s General Permit for Stormwater Discharges Associated With Construction and Land Disturbance Activities (the “Construction General Permit”). Section IV.D of the Construction General Permit contains three provisions similar to those rejected by the Court in San Francisco v. EPA:
- IV.D.1. The discharger shall ensure that stormwater discharges and authorized non-stormwater discharges to any surface or ground water will not adversely affect human health or the environment.
- IV.D.2. The discharger shall ensure that stormwater discharges and authorized non-stormwater discharges will not contain pollutants in quantities that threaten to cause pollution or a public nuisance.
- IV.D.3. The discharger shall ensure that stormwater discharges and authorized non-stormwater discharges will not contain pollutants that cause or contribute to an exceedance of any applicable water quality objectives or water quality standards contained in an applicable water quality control plan.
As with the offending requirements in San Francisco v. EPA, these provisions “do not spell out what a permittee must do or refrain from doing; rather, they make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants.”
Accordingly, developers, contractors, and others involved in stormwater or wastewater permitting and enforcement matters should be aware that vague, qualitative, and subjective standards in their permits may be ripe for legal challenges.
