Recent Supreme Court Case Changes Clean Water Act Permit Requirements

Case Summary

On March 4, the Supreme Court issued a decision in City and County of San Francisco v. Environmental Protection Agency, which narrowed the Environmental Protection Agency’s (EPA) authority under the Clean Water Act (CWA). Specifically, this case involved outcome-based permit conditions, also named as end-result requirements by the Court and the potential responsibility of entities such as industrial facilities who discharge pollutants into U.S. waters.

The majority concluded that the CWA does not authorize the EPA or states to enforce permit provisions that make permittees responsible for the water quality of the body of water their discharge is going into absent any specific limitations listed in the permits. Following this ruling, the EPA is now required to establish clear, quantifiable permit conditions rather than rely on more broad standards.

What This Means for Northwest Indiana

Northwest Indiana may be directly affected by this recent Supreme Court decision in the near future, as there are 6 major facilities along the Lake Michigan shoreline that currently have at least one NPDES permit each.

This case shifts the responsibility for developing specific compliance measures onto the EPA for NPDES permit requirements. Regarding future NPDES permits, the EPA is prohibited from utilizing so-called “end-result” provisions in such permits. This decision is beneficial for permittees, as the EPA will need to be more precise on what facilities must do to comply with permits issued.

Unfortunately, this ruling could also lead to the weakening of the CWA’s ability to protect water quality, particularly in complex, multi-discharger scenarios. Going forward this may also lead to delays in the permitting process, as EPA will need to compile more detailed discharge data to establish specific effluent limitations.

Save the Dunes will continue to monitor this issue to understand what implications this case may have on future NPSES permits for shoreline industries in Northwest Indiana.