Alert

Mar 12, 2025

U.S. Supreme Court Narrows NPDES Permit Requirements in San Francisco v. EPA

On March 4th, the U.S. Supreme Court held that the Environmental Protection Agency (EPA) lacks the authority under the federal Clean Water Act (CWA) to include “end-result requirements” in wastewater and storm water discharge permits. The Court concluded that permit provisions making a permittee “responsible for the quality of the water in the body of water into which the permittee discharges,” rather than “spell[ing] out what a permittee must do or refrain from doing” were impermissible. The Court emphasized that the responsibility for imposing limitations to ensure that water quality standards are met rests with EPA.

National Pollutant Discharge Elimination System, or “NPDES,” permits are the backbone of the CWA, and authorize a permittee to discharge pollutants from a point source into a receiving water body. The permittee’s authorization is conditioned on restrictions and obligations contained in their permit. These commonly include effluent limitations (limits on the amount, frequency, and concentration at which specified pollutants may be discharged at a particular location), sampling, reporting, and recordkeeping requirements, and operational restrictions. EPA and state permitting authorities have routinely used “end-result requirements” as a backstop to preclude impacts to water quality in receiving water bodies.  

At issue in the case were two narrative provisions of San Francisco’s NPDES permit, which prohibited any discharge from their wastewater treatment system that “contribute[s] to a violation of any applicable water quality standard” or that “create[s] pollution, contamination, or nuisance as defined by [California water law].” The Court read EPA’s authority to impose a “limitation” through NPDES permitting as requiring a “direct restriction” on the permittee’s conduct, not “simply tell[ing] a permittee that a particular end result must be achieved and that it is up to the permittee to figure out what to do.” The Court made clear, however, that its decision only impacts “end-result requirements” like those above. EPA retains authority to include narrative, or non-numeric, limitations that are not “end-result requirements”, such as requiring a permittee to comply with best management practices to reduce pollution.

Many NPDES permits contain standard conditions similar to the permit conditions held to be impermissible in San Francisco v. EPA. Thus, this case will impact the enforceability of certain provisions of existing NPDES permits. For more information, please feel free to contact any of Roetzel’s EHS attorneys: Amanda Ferguson, Shane Farolino, Terry Finn and Gary Pasheilich.