The Supreme Court of the United States’ recent Clean Water Act decision in City of San Francisco v. EPA has sent shockwaves through the environmental community by prohibiting EPA and state agencies’ common practice of including permit conditions that require an “end-result” without providing means to achieve it.
As a result of the decision, “end-result” permit conditions are invalid and unenforceable. Permittees operating under such provisions no longer may be penalized for causing exceedances of water quality standards unless EPA has carefully described the conditions necessary to prevent exceedances of these standards. Moreover, permittees now hold a stronger permit shield defense which cannot be undermined by noncompliance with “end-result” conditions.
The San Francisco case stems from a 2019 NPDES permit renewal for San Francisco’s wastewater and stormwater treatment facility. As part of the renewal the State of California added two problematic provisions:
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A prohibition on any discharge that “contributes to a violation of any applicable water quality standard;” and
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A requirement that the facility cannot perform treatment or make a discharge that “creates pollution, contamination, or nuisance as defined by” a California state law.
Justice Alito’s opinion refers to these as “end-result” provisions because they condition compliance not on taking any specific action, but rather on the ultimate water quality after actions are taken.
San Francisco challenged these provisions on two grounds. First, San Francisco argued all permit limitations must meet the Clean Water Act definition of “effluent limitation,” which the “end-result” provisions cannot do. The Court was not persuaded by this argument, finding the Clean Water Act plainly envisions other types of limitations, such as narrative criteria frequently included in permits.
Second, San Francisco argued the Clean Water Act does not authorize EPA or a state to impose NPDES permit requirements that condition compliance upon whether receiving waters meet applicable water quality standards. The Supreme Court proceeded with a textual analysis of the Clean Water Act provision authorizing permit conditions:
In order to carry out the objective of this chapter there shall be achieved—. . . not later than July 1, 1977, any more stringent limitation, including those necessary to meet water quality standards, treatment standards, or schedules of compliance, established pursuant to any State law or regulations (under authority preserved by section 1370 of this title) or any other Federal law or regulation, or required to implement any applicable water quality standard established pursuant to this chapter.
To understand the scope of this provision, the Court turned to dictionary definitions of ambiguous terms used therein. Beginning with “limitation,” the Court focused on a definition stating “restriction. . . imposed from without.” The Court reasoned this mandated agencies to require a restriction, not a result. Where California required “End-Results,” it required the permittee to develop its own plan (i.e., restrictions) to achieve the end-result. Because the permittee developed its own restrictions, they were restrictions “from within” and therefore not “limitations” in compliance with the Clean Water Act.
Next, the Court analyzed “implement” under the dictionary definition, “taking of actions that are designed to give practical effect to and ensure of actual fulfillment by concrete measures.” Therefore, the Court reasoned, the Act’s instruction to “implement any applicable water quality standard” could not be satisfied by merely stating the desired end-result. Instead, the agency must “ensure” actual fulfillment of the end-result by “concrete measures.”
The Court’s analysis of “necessary to meet” is similar. The Court found the phrase is most naturally understood to mean a provision that sets out actions that must be taken to meet the objective, rather than a restatement of the objective. Therefore, stating an end-result must be met is not “necessary to meet” that end-result.
The Court analogized “necessary to meet” and “implement” to a principal telling teachers to “implement” a plan “necessary to meet” test score standards. The principal would not be satisfied if the teachers “implemented” their plan by telling students they must pass the tests. Instead, the principal would expect concrete measures designed to ensure test score standards are actually fulfilled. That is what the Clean Water Act requires of EPA and the States.
Moving away from the dictionary, the Court also reviewed the history of water pollution legislation. The Court found the Clean Water Act deliberately avoided the former Water Pollution Control Act’s (WPCA) “after-the-fact” structure which penalized violators only after pollution occurred. The Court reasoned the “end-result” provisions at issue effectively reinstituted the WPCA scheme the Clean Water Act was designed to avoid.
The Court also noted that “end-result” provisions render the permit shield a nullity because a permittee could comply with every actual “limitation” in their permit yet face enforcement for a drop in water quality in receiving waters. Permittees can now rest assured that compliance with the actual limitations of their permits will protect them from enforcement, even if water quality drops below standards.
Finally, the Court recognized “end-result” provisions create a “multi-discharger problem” because agencies must look backwards to determine who was responsible for the drop in water quality underlying enforcement. Noting this issue was prominent under the WPCA, the Court was unwilling to find the CWA forces agencies to “unscramble the polluted eggs after the fact.”
The Court rounded out its opinion with a clear statement: “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 it needed to make that determination. If the EPA does what the CWA demands, water quality will not suffer.”
As a result of this opinion, “end-result” provisions are invalid, unenforceable, and no longer may be included in Clean Water Act permits. This decision substantially increases EPA’s burden to develop and implement actual limitations which instruct permittees on how to ensure water quality standards are maintained. Some have speculated this may mean increased wait times on permit applications and more denials from agencies. If EPA is given sufficient resources to develop instructive limitations, it is unclear whether that fear will come to fruition. What is clear, however, is that modern courts will hold EPA to a strict interpretation of the Clean Water Act.
City and Cty. of San Francisco v. E.P.A., 604 U.S. ----, 145 S.Ct. 704 (March 4, 2025)
