The Wednesday Wetness

SF Examiner, US Supreme Court rules for SF, against EPA

The United States Supreme Court ruled Tuesday that the U.S. Environmental Protection Agency overstepped its statutory authority when it attempted to make San Francisco responsible for water quality in the Pacific Ocean.

The 5-4 ruling in City and County of San Francisco v. Environmental Protection Agency, which reversed an appellate decision by the 9th U.S. Circuit Court of Appeals, said the EPA is not authorized under the Clean Water Act to include what the Supreme Court termed “end-result provisions” in a permit it issued to The City allowing the discharge of pollutants. “We are very pleased the Court issued the narrow decision San Francisco sought,” said City Attorney David Chiu and Public Utilities Commission General Manager Dennis Herrera in a joint statement. “This decision upholds the Clean Water Act’s critical role in protecting water quality and simply requires the EPA to fulfill its obligations under the Clean Water Act, as intended by Congress.” The case involved two provisions the EPA added to the pollutant-discharge permit issued for The City’s Oceanside water-treatment facility, which empties into the Pacific Ocean, when it was renewed in 2019.

In its petition for Supreme Court review, San Francisco argued that the EPA overstepped its statutory boundaries when it “added two provisions that generally demand that the City not violate [water quality standards] … rather than specify pollutant limits that San Francisco must meet.” “In practice, generic water quality prohibitions make it impossible for permittees to know what the law requires until an enforcement action’s late stages, putting them in a predicament that offends basic concepts of due process,” the City Attorney’s Office wrote in its petition.

The Supreme Court rejected San Francisco’s argument that the EPA is limited in what type of limitations it may impose on discharges, but it agreed with the contention The City made in its initial brief that “the Act does not authorize EPA to impose NPDES permit requirements that condition permitholders’ compliance on whether receiving waters meet applicable water quality standards.” “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,” wrote Justice Samuel Alito in the majority opinion.

“This ruling makes clear that permitholders like San Francisco are responsible for what they discharge, and the EPA has the tools at its disposal to ensure water quality,” Chiu and Herrera said in their statement. “But it’s not lawful to punish permitholders for things outside of their control, such as the end-result water quality of a shared body of water, where many other factors affect water quality.”

The Wombat has Rule 5 Sunday: South American Cowgirl ready and willing at The Other McCain.