Supreme Court Ruling Upends Clean Water Permitting

Nicole Granquist
Partner, Environment

Abstract

Nicole Granquist, a partner in the Sacramento office of Stoel Rives, unpacks the U.S. Supreme Court’s recent decision in the City and County of San Francisco case, which invalidated the use of receiving water limitations in Clean Water Act permits. These limitations previously held dischargers responsible for water quality exceedances in receiving bodies, even when their contribution was unclear or minimal. Granquist explains how the ruling shifts focus to measurable end-of-pipe standards and creates significant regulatory uncertainty. Dischargers now face complex questions about modifying permits, responding to ongoing enforcement actions, and recalibrating compliance strategies. According to Granquist, navigating this post-ruling landscape is quickly becoming a central challenge for water quality attorneys across the country.

Transcript

My name is Nicole Granquist. I’m a partner in the Sacramento office of Stoel Rives, and my practice is primarily water quality, Clean Water Act and state regulation of water quality, whether it’s municipal wastewater, municipal stormwater, industrial process water, industrial stormwater or construction stormwater.

A major case that has come out from the U.S. Supreme Court is the City and County of San Francisco case, which determined the U.S. Supreme Court decided that receiving water limitations, which are provisions in a discharge permit that says your discharge can’t cause or contribute to an exceedance of a water quality standard in the receiving water. The U.S. Supreme Court has decided that those receiving water limitations are not authorized by the Clean Water Act. That really dischargers need to know end of pipe, when they’re discharging, what is it that they are required to comply with. Five milligrams per liter of copper, as opposed to a more general, some would argue nebulous, standard in the receiving water that says, “You can’t cause or contribute to an exceedance in the water quality standard in the water body,” but you may not be the real reason that water body is in exceedance.

So it becomes difficult sometimes with receiving water limitations because you might have a discharger who gets told, “We think you’re out of compliance with that receiving water limitation.” And you may look at your data and say, “Well, I don’t think it’s me, but it could be these 26 other folks who contribute to the receiving waters.” And so it becomes more difficult to determine compliance. And receiving water limitations have been the subject of significant litigation over the years as to whether or not an individual discharger is or out of compliance. It is a provision that makes dischargers’ lives. It makes them nervous. It’s complex. It’s difficult to prove either way. And so the U.S. Supreme Court has decided receiving martyr limitations are not going to be placed in a discharge permit, Clean Water Act discharge permits anymore.

That has brought about a lot of uncertainty because every single permit in the state of California and every other discharge permit that’s under the Clean Water Act throughout the nation has these receiving water limitations. And so now we’re faced with the process of how do we go about modifying those permits if you’re in the midst of a lawsuit, if you are in the midst of an enforcement action, where maybe the cornerstone of that enforcement action is a receiving water limitation, are you able to argue that that case should be dismissed, should go away because those receiving water limitations are no longer considered appropriate for a permit? Or must you actually go through the process of getting your permit modified before you can then argue in maybe a concurrent case that these provisions, you cannot actually enforce them against us.

So it’s bringing about a number of procedural and regulatory complexities that have filled our daily lives ever since that case was issued several months ago to varying degrees of action that clients need to take, want to take, depending upon sort of what their permit states, what sort of discharges they may have, whether or not they’re part of a current enforcement action, whether it’s a third party or the state or the federal government, and how to contend with that. And I think that subject will occupy probably most of water quality attorneys’ time for the foreseeable future as to how to advise the client to properly comply, but also not be in a circumstance where you’re vulnerable to allegations that the Supreme Court has decided now really shouldn’t be enforceable and shouldn’t be brought.