Jay Johnson spoke with Global Water Intelligence on the Supreme Court's limits on the EPA’s authority on water discharge permits. The following is an excerpt:
The US Supreme Court last week curtailed the EPA's ability to impose outcome-based water discharge permits, ruling that such measures exceed the agency's authority under the Clean Water Act.
In City and County of San Francisco v. EPA, the Court found that the agency cannot enforce permit conditions based on water quality outcomes rather than specific pollutant limits.
The case was sparked by San Francisco challenging a permit that held it liable for pollution in the Pacific, despite existing efforts to upgrade its sewer system.
"The permit essentially said, 'Don't make the Pacific more polluted'—meaning that instead of setting fixed pollutant limits, the EPA held San Francisco accountable for ensuring the ocean's overall water quality," noted Jay Johnson at Venable LLP.
The ruling provides regulatory certainty for municipalities while making the EPA's permitting task harder – given that the agency must now prescribe discharge limits as opposed to desired outcomes.
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