Utilities Section
Newsletter League of Nebraska Municipalities
August 2025
U.S. Supreme Court rules that NPDES end-result conditions are impermissible Lash Chaffin Utilities Section Director Earlier this year, in City and County of San Francisco vs. EPA, the U.S. Supreme Court issued a major decision limiting the scope of the Environmental Protection Agency’s (EPA) authority under the Clean Water Act (CWA) as it relates to permits governing discharges by municipalities into covered water bodies. In a 5-4 ruling, the Supreme Court held that EPA cannot enforce permit provisions that “make a permittee responsible for the quality of the water in the body of water into which the permittee discharges pollutants.” The Court ruled that under the CWA, EPA cannot impose conditions on discharging facilities with “end-result” conditions. The court ruled that the CWA permit scope is limited to effluent limits and other limitations necessary to meet water quality standards. In 2019, as part of the National Pollutant Discharge Elimination System (NPDES) permit renewal process, two new permit conditions were added to one of the City of San Francisco’s NPDES permits governing the City’s Oceanside Combined Wastewater Treatment Facility. One new condition prohibited the Oceanside facility from making any discharge that “contribute[s] to a violation of any applicable water quality standard” 1335 L Street Lincoln, NE 68508 (402) 476-2829 Fax (402) 476-7052
for receiving waters. The second new condition provided that the city cannot perform any treatment or make any discharge that “create[s] pollution, contamination, or nuisance as defined by California Water Code.” In ruling that these two conditions were impermissible, the U.S. Supreme Court first acknowledged that the most natural reading of the CWA is that it “authorizes the EPA to set rules that a permittee must follow to achieve a desired result, namely, a certain degree of water quality.” The Court then analyzed the history of water quality law and noted that prior to 1972, permit holders were specifically liable for maintaining the water quality standards of the water into which they discharged. In 1972, when Congress adopted the sweeping amendments that created the CWA, Congress instead imposed a regulatory scheme that sought to achieve “acceptable quality standards” by means of “direct restrictions” on polluters. The Court then went on to support this argument by noting that the CWA liability scheme is based on a permit shield which deems a permittee to be in compliance with the CWA as long as it follows all the terms in its permit. The Court then further went on to discuss the absence of
any provision in the CWA dealing with the “problem that arises when more than one permittee discharges into a body of water with substandard water quality.” The Court explained that it is hard to accept the idea that Congress contemplated the enforcement of end-use requirements when it did not provide any method for dealing with multi-discharger situations – a common occurrence, since “dozens or even hundreds of … permitted and unpermitted discharges” flow into the same water body. In conclusion, the Court ruled “EPA possesses the expertise … and the resources necessary to determine what a permittee should do.” In other words, the Court determined that EPA should use its own resources to determine how to protect water quality rather than leave businesses and cities to figure out how to do so. This case addresses a longstanding dispute between EPA and many permittees regarding “end-result” permit requirements frequently found in NPDES permits. Continued on page 2 Lash Chaffin Utilities Section Director Jackson Sash Utilities Field Representative