City and County of San Francisco v. EPA
Case Overview
City and County of San Francisco v. EPA held that the Clean Water Act does not authorize the Environmental Protection Agency to include in a Clean Water Act permit conditions that merely direct the permit holder to comply with unspecified narrative water quality standards, without translating those standards into concrete prohibitions. The case arose from San Francisco's challenge to permit conditions that held the city liable for any water quality violations without specifying what discharges were prohibited. The 5-4 decision limited EPA's ability to write ambiguous, standard-by-reference permit conditions.
The Facts
The EPA issued San Francisco a National Pollutant Discharge Elimination System permit for its combined sewer overflow system, including conditions prohibiting discharges that would cause or contribute to any violation of applicable water quality standards. San Francisco challenged these narrative prohibitions as exceeding EPA's statutory authority because they failed to identify what specific conduct would violate the permit.
The Application
San Francisco received a permit condition stating only that its discharges could not violate applicable water quality standards—without the EPA specifying what conduct would actually violate those standards or what specific discharges were prohibited. Under the governing rule, such bare incorporation of external standards by reference fails to provide the permittee with fair notice of what is forbidden, thereby exceeding the EPA's statutory authority to impose permit conditions. The majority reasoned that the Clean Water Act requires the EPA to perform the work of translating narrative water quality standards into concrete discharge prohibitions within the permit itself, rather than leaving the permittee to decipher prohibited conduct from external standards. By enforcing this notice requirement, the Court prevented the EPA from imposing open-ended liability under terms too vague to guide compliance or enforcement.
The Conclusion
**The Court reversed the Ninth Circuit 5-4.** Alito wrote for the majority joined by Roberts, Thomas, Gorsuch, and Kavanaugh. The dissenters argued that narrative water quality conditions are a longstanding and practical feature of Clean Water Act permitting that Congress ratified.
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