Does EPA Have Authority to Include Narrative Criteria in NPDES Permits? Yes, For Now.

Earlier this week, the 9th Circuit Court of Appeals affirmed EPA’s NPDES permit issued to San Francisco’s Oceanside sewer system.  San Francisco had challenged the permit on the ground that EPA does not have authority to impose narrative prohibitions related to compliance with water quality criteria.  Here is the primary section subject to challenge: 

Discharge shall not cause or contribute to a violation of any applicable water quality standard for receiving waters adopted by the Regional Water Board, State Water Resources Control Board (State Water Board), or U.S. EPA as required by the CWA and regulations adopted thereunder.

As EPA pointed out, and as most practitioners are probably aware, provisions such as this are common in NPDES permits.  That doesn’t mean that such provisions are in fact authorized and it’s worth noting that the Court’s decision was not unanimous.  Moreover, while this case does not involve the definition of WOTUS, I think that there are echoes of Justice Alito’s opinion for the Court in its recent decision in Sackett in the objections raised by San Francisco to the NPDES permit here.  San Francisco specifically challenged the narrative criterion as being too vague:

San Francisco argues that EPA’s inclusion of the general narrative prohibitions is inconsistent with the CWA because they are too vague to ensure the city’s control measures will protect water quality.

While the 9th Circuit disagreed, Justice Alito specifically noted in Sackett that the:

The CWA is a potent weapon. It imposes what have been described as “crushing” consequences “even for inadvertent violations.”

He then went on to state that EPA’s interpretation of the Clean Water Act :

gives rise to serious vagueness concerns in light of the CWA’s criminal penalties. Due process requires Congress to define penal statutes “‘with sufficient definiteness that ordinary people can understand what conduct is prohibited’”.

My initial read was that SCOTUS wouldn’t be interested in reviewing a challenge to an NPDES permit.  However, if SCOTUS feels like taking another shot at the authority of the administrative state, it’s not at all out of the question that it could hear an appeal of this decision.  If it does hear the case, I wouldn’t bet a lot of money that EPA would win the appeal.

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