What yesterday’s Supreme Court decision means for clean water
Trending headlines implied a weakening of the Clean Water Act, but utilities working for clean water see a victory.
When the U.S. Supreme Court handed down a Clean Water Act-related decision March 4, public opinion was that clean water had been struck a blow. But as a utility — specifically one that lent its voice to the cause on the 5–4 majority side — we saw the decision as a significant victory.
The Court sided with San Francisco Public Utilities Commission in its legal challenge to vague terms included in its Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit.
San Francisco argued that permit language painted with such a broad brush — requirements that discharges not “cause or contribute to the violation of water quality standards” or “pollute” — lacked the clarity and specificity utilities need to comply with their discharge permits. Vague narrative limits used by EPA did not offer clear guidance on what permittees needed to do to comply.
“You can’t run a capital program to address issues like these with a constantly moving regulatory target.”
The Court sided with the San Francisco Public Utilities Commission and a broad coalition of clean water utility amici in a split decision holding that such permitting provisions are at odds with the text, structure, and legislative history of the Clean Water Act.
While breaking news headlines implied the result would be detrimental to the environment and regulatory authority, sewer and stormwater utilities saw the long-awaited decision as one that benefits public health, clean water, ratepayers, and residents.
“To the contrary, the permitting certainty provided by the decision will help utilities more efficiently and effectively improve water quality and protect public health,” said Adam Krantz, CEO of the National Association of Clean Water Agencies (NACWA), in a statement.
The Northeast Ohio Regional Sewer District was one of 18 different utilities joining NACWA and eight other national and state associations in an amicus brief cited in the Court’s decision.
“Addressing legacy and on-going public health and water quality issues like combined sewer overflow requires lots funding and years of good planning and coordination with communities,” said NEORSD CEO Kyle Dreyfuss-Wells whose agency is currently in the middle of a $3 billion combined sewer overflow control program. “You can’t run a capital program to address issues like these with a constantly moving regulatory target.”
The Sewer District’s treated water must and does comply with more than 4,700 different NPDES permit compliance points every year. Clarity and specificity are critical for compliance, long-term project planning, and best use of ratepayer’s limited dollars. Ambiguous permit language leaves utilities guessing as to their compliance obligations, thereby making infrastructure investment more costly and less efficient.
