The nation’s high court has agreed to hear a water quality case next year that will examine U.S. Environmental Protection Agency authority to impose new wastewater discharge requirements on utilities that are based on conditions without specific numeric limits.
San Francisco wants the U.S. Supreme Court to review a July 2023 opinion by judges from the federal appeals court in San Francisco that affirmed agency authority to include broad language prohibiting the pollution and placing conditions on the city’s National Pollutant Discharge Elimination System (NPDES) permit. Those conditions included requiring the San Francisco Public Utilities Commission to update its long-term control plan for managing combined-sewer overflows.
The city and county of San Francisco have challenged NPDES permit language since 2019, when EPA and the state of California published a draft permit to allow the public utility to continue to discharge effluent into the Pacific Ocean.
They contend EPA undermines the integrity of the federal Clean Water Act by failing to include specific numeric discharge requirements in the permit.
The agency “is trying to tell permit holders they may not cause ‘too much’ pollution, without first telling us what ‘too much’ is,” says a spokeswoman for city of San Francisco attorney David Chiu. "We are asking for clear requirements to protect water quality so we can follow them. We are hopeful the court can bring clarity and stability to this area of law.”
In its Supreme Court petition, San Francisco argues that “generic” prohibitions to not cause or contribute to water pollution “expose [the city] to enforcement for contributing to excessive pollution without defining in advance what constitutes excess or which pollutants [it] might need to control.”
The U.S. government counters that the permits make clear which local and regional water quality standards are applicable and are consistent with how most permits in California are written.
The utility is supported by numerous clean water agencies and associations that contend that similar language is incorporated into discharge permits across the country.
“The investments public utilities make to maintain and improve their stormwater and wastewater systems often cost hundreds of millions, or even billions, of dollars and may take years or decades to complete,” they wrote in an amicus brief. “Generic water quality prohibitions threaten to upend or usurp these significant expenditures to the great detriment of the communities that made them.”
No Mountain Valley Land Ruling
Separately, the Supreme Court opted on May 20 not to consider a second appeal from six landowners who have challenged the authority of the Federal Energy Regulatory Commission to allow private developers of the $7.5-billion Mountain Valley natural gas pipeline, and similar projects, to condemn properties using eminent domain for what the agency said is in the "public interest."
Justices, who returned a prior owners' challenge to the federal appeals court in Washington D.C., did not explain reasons for their latest action, which leaves in place an order by that lower court to dismiss their case.
But in a separate eminent domain case, a Richmond, Va., federal appeals court judge doubled the value of compensation owed to other owners of property taken along the pipeline route, after a lower trial court had reduced it.
The 303-mile, 42-in. pipeline between Virginia and West Virginia, set to operate in coming weeks, was the focus of much controversy during construction due to strong environmental group opposition and to enacted congressional legislation last year that specifically approved all of its pending permits and prevents legal action that would halt project completion.
Mountain Valley, with capacity of 2 billion cu ft of gas per day, is intended to connect West Virginia gas production to new markets in the mid-Atlantic. A spur line to North Carolina also is planned.
Plaintiffs' attorney Mia Yugo did not speculate on their next legal steps but noted that "no court anywhere has said we’re wrong on the merits. The Supreme Court just didn’t revisit it this year.”
