US supreme court weakens rules on discharge of raw sewage into water supplies

The US supreme court has weakened rules on the discharge of raw sewage into water supplies in a 5-4 ruling that undermines the 1972 Clean Water Act.

The CWA is the principle law governing pollution control and water quality of the nation’s waterways.

The Republican super majority court ruled on Tuesday that the Environmental Protection Agency (EPA) cannot employ generic, water body-focused pollution discharge limits to Clean Water Act permit holders, and must provide specific limitations to pollution permittees.

The ruling is a win for San Francisco, which challenged nonspecific, or “narrative,” wastewater permits that the EPA issues to protect the quality of surface water sources like rivers and streams relied upon for drinking water.

In a 5-4 ruling written by Justice Samuel Alito, the court blocked the EPA from issuing permits that make a permittee responsible for surface water quality, or “end result” permits – a new term coined by the court.

“The agency has adequate tools to obtain needed information from permittees without resorting to end-result requirements,” wrote Justice Samuel Alito, who was joined by Chief Justice John Roberts and Justices Clarence Thomas and Brett Kavanaugh, along with Justice Neil Gorsuch, who joined part of the majority opinion.

The EPA issued San Francisco a permit allowing it to discharge pollutants from its combined sewer system into the Pacific Ocean. The permit’s conditions include prohibitions on discharges that contribute to a violation of applicable water quality standards. The permit included generic prohibitions on the impacts to water quality, as part of the EPA’s efforts to halt San Francisco’s releases of raw sewage into the Pacific Ocean during rainstorms.

San Francisco challenged these conditions, arguing that EPA lacks statutory authority to impose them. The US Court of Appeals for the ninth circuit in July 2023 upheld EPA’s authority to issue generic limits on discharges under the Clean Water Act. San Francisco took the case to the SCJ.

The case drew the attention of powerful business groups including the National Mining Association and US Chamber of Commerce, which wrote amicus briefs in support of San Francisco’s position. It was the first case to grapple with Clean Water Act regulations since the court struck down Chevron deference in Loper Bright Enterprises v Raimondo in June 2024, though it was barely mentioned during oral arguments.

“The city is wrong,” according to Justice Amy Coney Barrett, who wrote the dissenting opinion, which was joined by the three Democratic justices, Sotomayor, Kagan and Jackson. “The relevant provision of the Clean Water Act directs EPA to impose any more stringent limitation that is necessary to meet… or required to implement any applicable water quality standard.”