A years-long dispute over a San Francisco stormwater discharge permit came to an end Tuesday with a decision by the U.S. Supreme Court ruling in favor of the city, but the earlier-than-expected decision raises questions about weakening water quality standards in the federal Clean Water Act.
In most cities, treated wastewater effluent and stormwater runoff is released through a pipe into public waters. The EPA allows that to a certain extent through a National Pollutant Discharge Elimination System permit, or NPDES.
At issue in the Supreme Court case was the question of whether the city’s pollutants should be regulated according to what discharges go through the pipe or what goes into the water. The latter is called the “water quality standard.” San Francisco City Attorney David Chiu argued that the city should only be held responsible for what comes out of the pipe, not for the water around the pipe.
Chiu argued that San Francisco would be legally responsible for the quality of the Pacific Ocean and Bay as a whole, and the city would need to spend over $10 billion more on the Bay side alone to modify its stormwater and sewage infrastructure.
Pleased with the decision, Chiu and San Francisco Public Utilities Commission general manager Dennis Herrera issued a joint statement Tuesday.
“The Court held that the Clean Water Act allows EPA to issue water quality permits that contain limits only on a permitholder’s discharges, which they can control, and not permits that make permitholders responsible for receiving water quality, which they cannot control,” the statement said. “Other agencies and entities discharge into them, and there are many other factors that impact water quality and pollution in those water bodies.”
The statement added that San Francisco plans to invest $2.36 billion in upgrading its wastewater collection and treatment system over the next 20 years.
“SCOTUS’s decision ignores the basic reality of how water bodies and water pollution work and could stymie the ability of the EPA to implement the Clean Water Act. … The result is likely to be a new system where the public is regularly subjected to unsafe water quality.”
Sanjay Narayan, Sierra Club Environmental Law Program
In a 5-4 ruling, the Supreme Court justices found that the law does not authorize the EPA to include “end-result” provisions in NPDES permits since “if the EPA does what the CWA demands, water quality will not suffer.”
In response to Tuesday’s decision, Sanjay Narayan, chief appellate counsel of Sierra Club’s Environmental Law Program, said in a statement that the decision limits the EPA’s authority to impose standards for unforeseen pollution to protect public health.
Narayan alleged San Francisco was trying to avoid being penalized for discharging sewage into the Bay and the Pacific Ocean. He added that San Francisco’s side of the case was supported by major polluters, including the National Mining Association, American Petroleum Institute, American Gas Association and American Chemistry Council.
“SCOTUS’s decision ignores the basic reality of how water bodies and water pollution work and could stymie the ability of the EPA to implement the Clean Water Act, a bedrock environmental law that has kept water safe for the last 50 years,” Narayan said. “The result is likely to be a new system where the public is regularly subjected to unsafe water quality.”
Rivers to the sea
The case involves pollution that happens during stormy weather. In San Francisco, and in many cities around the country, heavy rain pushes stormwater and wastewater systems beyond capacity, and they end up mixing in their rush to the sea.
San Francisco Baykeeper spokesperson Mark Westlund said Tuesday that San Francisco often exceeds the water quality standards when it discharges polluted water from its combined sewer and stormwater system. He said the SCOTUS decision undermines the ability of federal and state environmental agencies to protect water.
“As a result, water quality around San Francisco where beachgoers and surfers frequently recreate may deteriorate beyond already poor conditions,” Westlund said.
San Francisco and the EPA have been arguing about the permit for more than a decade. The city first objected in 2019 to the water quality language in 2013 permit updates. Its objections were overruled by the San Francisco Bay Regional Water Quality Control Board and the EPA Environmental Appeals Board, an impartial tribunal set up by the EPA that hears appeals of major statutes the agency administers.
In October, San Francisco’s own Board of Supervisors passed a resolution asking city Chiu to drop the lawsuit. The call for the resolution was led by Supervisor Myrna Melgar, who represents District 7 where the permit was contested.
Melgar was joined in a protest by several environmental groups, including Surfrider Foundation and San Francisco Baykeeper. She and other supervisors expressed concern that San Francisco’s reputation as a liberal defender of the environment would be harmed through association with the lawsuit.
In a Tuesday statement, Melgar described the decision as a damaging loss for the EPA, the Clean Water Act and the American people.
“It is deeply troubling to see San Francisco, a city known for its environmental leadership, play a significant role in weakening the very protections that safeguard our water and natural resources,” said Melgar. “This decision aligns with President Trump’s broader rollback of environmental regulations. I fear the long-term consequences for the environment in the United States will be severe.”
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