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[00:00]
A
In March 2025, the United States Supreme Court issued a landmark decision in the City and County of San Francisco versus the Environmental Protection Agency. This pivotal ruling struck down the so called end result requirements commonly imposed by the EPA and Clean Water act permits, fundamentally reshaping how permits under the National Pollution Discharge Elimination System are administered across the country with the potential to alter water quality compliance for permit holders nationwide. This decision raises key questions about the future of environmental regulations and the interplay between federal and state oversight. In this episode of Digging Into Land Use Law, we break down the Supreme Court decision, unravel the main issues at stake in the case, and explore the immediate and long term impacts for stakeholders, from individual permit holders to state and federal regulators. If you're navigating Clean Water act compliance, interested in regulatory shifts, or simply curious about how this ruling will influence water quality standards, this podcast will provide insight and guidance for the road ahead.
[01:28]
B
Welcome to Digging Into Land Use Law, Nassiman's podcast covering the development of all things in, on or above the ground.
[01:45]
A
I am Byron G. A partner in nosmin's Water Practice Group, and I'm joined today by fellow partners Willis Hahn, also in the Water Practice Group, and Sarah Johnson in our Environmental and Land Use Practice Group. Let's start by discussing the Supreme Court case. Willis, can you summarize the pivotal issues at stake in the City and County of San Francisco vs EPA case?
[02:12]
C
Thanks, Byron. Well, so this was a case in which the U.S. supreme Court decided it in March of 2025, and in that case they analyzed the permit requirements that the EPA had been routinely using in many of its discharge permits issued under the Clean Water Act. Under that act, dischargers need a permit under the National Pollution Discharge Elimination System or Nifties Program in order to discharge contaminants into waters of the United States. These permits often include specific numeric effluent limitations or may contain narrative limitations such as having permittees implement certain best practices. The case here dealt with another type of permit requirement, commonly known as end result provisions. Specifically, this case involved an action by EPA against the City and County of San Francisco to enforce these end result permit requirements for the city's Oceanside Combined Wastewater System. The permit at issue in this case involved a prohibition against discharges that, quote, contribute to a violation of any applicable water quality standard for receiving waters, as well as a second prohibition against performing any treatments or making any discharges that, quote, create pollution, contamination or nuisance as defined by California water code section 1305 0, end quote. Now, these limitations, as you see Here don't direct the city to take any specific steps on how to comply, but instead rely on the city to reach the end result being required. So after this lengthy case, the Supreme Court sided with the city, holding that the Clean Water act does not authorize EPA to include such vague end result provisions in its nifty permits. The majority opinion explained that the enforcement responsibility for determining and implementing steps to achieve water quality standards falls within the EPA's mandate and cannot be shifted onto permittees through general outcome based language like this. Specifically, the majority opinion found that the Clean Water act does not authorize EPA to impose requirements that condition the permittee's compliance on whether you know, the receiving waters meet applicable water quality standards, holding that such end result limitations neither fit the statutory interpretation envisioned by the Clean Water act, nor was it supported by the legislative history behind the Clean Water act's adoption in 1972. Since the time of the decision about two months ago now, the case has been remanded down to the 9th Circuit to figure out how the EPA is going to administer the permit when with this new guidance. And that's the big question that a lot of people are trying to figure out right now.
[05:03]
D
Thanks Willis, and thanks Byron. Good to be joining you guys for this discussion. There is a lot of speculation in different directions and stakeholders viewing this opinion from different opportunities and just looking again at the case. So we have EPA SCOTUS directing EPA to be more specific about what permit holders can, can and cannot do, what actions they can take. So EPA needs to propose specific options in those conditions. And EPA also needs to be able to demonstrate that those options have a nexus to water quality. And so several of the companies that I work with, they are offset providers. They sponsor and establish ecological restoration offsets which they essentially for anyone that's working in the environmental space, are doing something off site to provide ecological uplift that compensates for or mitigates offsets permitted actions and impacts elsewhere. But you have a nexus back to the permitted action based on a certain service area. So in the water quality space, that's typically a specific watershed or, or a huck within a watershed. And so we're viewing this decision where EPA is needing to come up with a menu of different options that are specific actions a permittee could take. And we're seeing water quality offsets as a really attractive option. It allows the permittee to not have to perform actions and minimize pollutants to the maximum nth degree at their facility, but gives them some flexibility to find a more cost effective option that Maybe is even more impactful for the watershed as well by turning to some of these off site solutions. So we see this as a real opportunity. Of course we'll need EPA to come out with guidance that clearly outlines where trading is an option. And I think several of these companies are hoping that this second Trump administration would be open to that. We saw during the first Trump administration issuance of a water quality trading memo that came out in February 2019. It outlined a bit of a roadmap on actions that EPA could take as well as ways to support the states to embrace water quality trading as a more efficient method to achieve their nifty targets. And really besides the memo coming out, we didn't see much action on the part of EPA to implement that or states necessarily reacting to it. And so the second Trump administration presents an opportunity to pick that work back up. And maybe it's the confluence of this decision, that interest from the first administration that results in water quality trading as emerging as a real option coming out of this decision. So you know, still though, waiting back to that, that first question we were talking about, still waiting though for final direction and, and guidance from epa and that's definitely what's going to be needed in the short term here for us to know what to, what to expect and for stakeholders to really understand what this decision means.
[08:34]
E
I'm totally in agreement. For a lot of the clients that we have that hold these nifty's permits and are trying to figure out what to do next. We've been rec that they do try to continue to comply with the terms of the existing permit. As you mentioned, there's a lot of uncertainty what's going to happen. But these end result permits are only one set of provisions within the overall permit. There's still the effluent limitations, still the narrative and best practice requirements. And so those are still in place, which is important to keep in mind that we're only talking about one aspect of the nifties program. In the long term, permittees might find that as they're renewing these permits or as these are evolving or when EPA can get to them, these can, you might see some more long term changes on how the, how the types of limitations are being placed and what they are. So you might, you know, these, these, it might get easier but it also might be fashioned in a way that makes it harder to comply with or more expensive. And so, so it's really going to be wait and see for the long term.
[09:43]
A
And a lot of these permits, I mean when we're talking about an industry sector. Permits, they have to be renewed once every five years. And so I guess EPA can't just sit on their hands or the states can't sit on their hands and just hope that something new comes along. Evidently, I think they will have to come up with something fairly quickly if they are to follow their schedule of renewing these permits every five years.
[10:16]
E
Right. And one of the, you know, one of the arguments made during the case is that, you know, these end result limit made by EPA in the case is that these end result limitations are really necessary because a lot of the times they don't have the science completed to support a specific, a more specific requirement in that context. And so a large part of it is that, you know, you need to do the work, put in, research the science to develop and craft limitations that are more specific. And so now that we have this decision, it's, it's the, the, the challenge is really on EPA to now do the science and craft these, which is much easier said than done.
[10:59]
D
Yeah. And again, goes back to just some of the challenges they're facing with this reduced workforce. You know, are there other cooperative approaches or partnerships they can pursue to get that data? But definitely need more data to have defensible permit conditions that would replace those end result provisions.
[11:24]
A
Okay, well, thank you, that was very helpful. Let's focus in on maybe some of the broader impacts of the clean water of this Supreme Court decision. How are different stakeholders viewing the long term impacts of this decision? Sarah, that might be one for you to start with.
[11:46]
D
Yeah, thanks. And I'll caveat this with. This is some, some speculation and, and coming from the perspective of several of the companies that I work with who are in the business of providing ecological offsets, essentially offsets for compliance with Clean Water act and other state and natural resources laws. And where they have found success is working with permit holders to off site water quality projects that are still within a certain watershed, they're still within a defined service area. Typically it's a huc. So there would be a nexus to the facility that's holding the permit. And they're seeing an opportunity with this decision and the Supreme Court's direction to EPA to do their job and to come up with what are the specific permit conditions a permittee has to comply with to show, you know, they're meeting the terms of the NPTS program and reducing pollutants overall in the receiving waters. And we're looking at these off site offsets as a specific action that could be pursued where you can demonstrate. Okay, Permittee, you've checked the box on your liability, you've pursued a specific permit action. And EPA in the states can say, we're also holding up our obligations under the act because we can demonstrate that these offsets are measurable towards improving water quality by reducing certain nutrients. So we're seeing this as a potential opportunity. You know, offsets would be just one option of many, but we're feeling that they should be one that's really considered as, as a menu of options to try to achieve compliance. So that's just one. One perspective. And I'll add that the first Trump administration actually issued a guidance memo in February of 2019 where they really were trying to incentivize and outline actions EPA could take, as well as ways to incentivize the states to embrace this water quality trading approach as a way to more efficiently achieve some of these pollutant goals. So there is some precedent from the first Trump administration offering support. And this is just an item, you know, we'd love to see if there was that guidance from EPA in response to the decision.
[14:29]
E
Yeah, totally agree. There's one of the other major stakeholders that are impacted by this, beyond permit holders, is, as you mentioned, the states. Now, in this specific case between San Francisco and epa, there's also concurrently oversight from the State Water Resources Control Board that has their own permitting authority that's not only concurrent with that of EPA under the Clean Water act, but California has its own water water quality control laws. And so there's a state regime as well. Now, it's a bit complex to figure out how that's going to be implemented. While the case has come down from the Supreme Court and is being remanded to the ninth Circuit, there's also concurrently a state action challenging, you know, similar end result requirements found in the state permit as well. But that case has been on hold until the federal side of the House is resolved at the ninth Circuit. And so we'll see what happens there. One of the things that we've seen in California from the State Water Resource Control Board is that they've been focusing a lot on these numeric limitations where there's adequate data and support for them. And so, you know, in light of this decision, maybe that's sort of furthers that shift towards that strategy. One other piece of thing that I'd want to note to take a look at is Senate Bill 601 that's currently in legislature. This is a bill introduced a few weeks ago that would sort of revamp the state authority and approach on clean water quality and sort of fill in the gaps where the federal government has pulled back. And so that that bill is currently making its rounds through the different committees in this in the state Senate. And something to keep an eye on?
[16:25]
D
Yeah, definitely. I know I've been working with some folks also tracking that bill and understand the intent where it's, it's trying to fill the gap and further bolster water quality oversight. But I know it also has some concerns just about, you know, practical implementation challenges. And so, you know, what are the lessons learned from this case that could be avoided by states also trying to work on writing their own water quality permits? And I think one of those big lessons, and you touched on this too, Willis, is there seems to be this shift from the narrative provisions to numeric and having that focus on any water quality trading requirements linking back to numeric limitations. And that's been critical for where we have seen trading flourish as a model, particularly in the Chesapeake Bay. You've seen that success because you have these total maximum daily loads that are based on specific pollutant targets. And so again, you just, you, you've got to have through state and federal partnership and EPA staff working together to come up with the data to support that. You also need to have states that are willing to embrace trading again in the Bay Area, the state that's been most successful, Virginia, they had a state law that also clearly authorized this trading between point source, so your permit holders and non point source offsets and reductions. And so you need a couple different factors to come together. But if you can get those factors to come together, it's a really defensible option to point for EPA to be able to point their permittee holders towards.
[18:22]
E
Yeah. So it sounds like there's a number of approaches that EPA and other stakeholders can be taking here. I think the Supreme Court case is really interesting in that it says what EPA cannot do, but it doesn't actually give much hint as to what it should be doing instead. And so with that sort of uncertainty, this is the world we're stepping into now.
[18:47]
D
The theme of the moment is nothing is certain. You can be certain. Nothing is certain.
[18:53]
A
Yes. And you have to address that uncertainty without any resources, which also complicates Clean Water act compliance and the shape of permits in the future. Well, that's some very interesting insight and I want to thank you for sharing your insight with, with, with us and also like to thank our listeners for joining us on this episode of Digging Into Land Use Law. For additional information on this topic, or other environmental and land use matters, please visit our website at nosiman.com n o s s A-M-A-N.com and don't forget to subscribe to Digging Into Land Use Law whenever you listen to a podcast. To podcast so you don't miss an episode. Until next time.
[19:56]
B
Digging into Land Use Law is presented by Nassimon LLP and cannot be copied or rebroadcast without consent. Content reflects the personal views and opinions of the participants. The information provided in this podcast is for informational purposes only, is not intended as legal advice, and does not create an attorney client relationship. Listeners should not act solely upon this information without seeking professional legal counsel.

Summary6 min read

Digging Into Land Use Law

Episode: Rewriting the Rules: The Supreme Court's Landmark Decision on Clean Water Act Permits

Date: May 20, 2025
Host: Byron G., Nossaman LLP
Guests: Willis Hahn (Water Practice Group), Sarah Johnson (Environmental and Land Use Practice Group)

Episode Overview

This episode focuses on the March 2025 Supreme Court decision in City and County of San Francisco v. Environmental Protection Agency, a ruling that invalidated the EPA’s longstanding "end result" requirements in Clean Water Act (CWA) permits. The hosts and guest experts dissect what this historic decision means for environmental regulation, federal and state oversight, and the practical realities facing permit holders and regulators. Discussions cover not just the technical and legal consequences of the ruling, but also immediate considerations, opportunities, and uncertainties across the regulatory landscape.

Key Discussion Points & Insights

1. Background & The Supreme Court Decision

[02:12]

Case Overview:
- The Supreme Court struck down the EPA’s practice of including “end result” provisions in National Pollution Discharge Elimination System (NPDES/NIFTIES) permits.
- These end result clauses required permittees to avoid any discharges that might cause a violation of water quality standards, without specifying concrete compliance actions.
- Example at issue: San Francisco’s Oceanside Combined Wastewater System permit included broad prohibitions against causing any violation or nuisance, as defined by state or federal law.
Majority Opinion:
- The Court determined that the Clean Water Act does not authorize the EPA to impose general outcome-based requirements.
- Responsibility for determining necessary measures to achieve water quality standards lies with the EPA, not the permit holders.
- The EPA must instead provide clear, actionable permit conditions.

Quote:
"The enforcement responsibility for determining and implementing steps to achieve water quality standards falls within the EPA's mandate and cannot be shifted onto permittees through general outcome based language like this."
— Willis Hahn, [03:50]

Remand:
- The case was sent back to the Ninth Circuit, leaving EPA to develop new, specific compliance frameworks under tight timeframes.

2. Immediate Effects & Compliance Uncertainty

[08:34]

Advising Clients:
- Despite the invalidation of "end result" provisions, all other permit requirements (numeric effluent limits, best practices) remain in force.
- Permittees are advised to maintain compliance with existing, valid permit elements.
Compliance Evolution:
- The absence of general outcome mandates may make future compliance frameworks either easier (more targeted, clear requirements) or harder (more stringent, specific, or costly mandates).

Quote:
"These end result permits are only one set of provisions within the permit. There's still the effluent limitations, still the narrative and best practice requirements... we're only talking about one aspect of the NIFTIES program."
— Sarah Johnson, [08:50]

3. Opportunities: Offsets And Water Quality Trading

[05:03, 11:45]

Water Quality Offsets:
- New flexibility for permittees: The decision may open the door to innovative compliance mechanisms such as ecological restoration offsets and water quality trading, provided there is a clear linkage (“nexus”) to permitted actions.
- Offsets allow facilities to fund off-site improvements within the watershed, achieving superior or more cost-effective environmental outcomes.
Policy Precedent & State Action:
- The 2019 Water Quality Trading Memo from the first Trump administration is referenced as a nascent roadmap — one that could be revived to offer menu-based compliance options.
- The discussion anticipates that the current administration may expand upon this model, making trading a principal policy tool.

Quote:
"We see this decision...as a real opportunity. Of course, we'll need EPA to come out with guidance that clearly outlines where trading is an option."
— Sarah Johnson, [06:41]

4. Challenges: Scientific Data & Resource Constraints

[10:16]

Science & Specificity:
- The Supreme Court’s decision places responsibility on the EPA to develop and justify specific numeric or narrative permit conditions, which requires robust scientific research and data collection.
- EPA’s reduced workforce and resource limitations add significant strain, complicating the timely development of defensible permit requirements.
- Cooperative data-sharing and federal-state partnership are stressed as crucial.

Quote:
"You need to do the work, put in, research the science to develop and craft limitations that are more specific. And so now that we have this decision, the challenge is really on EPA..."
— Sarah Johnson, [10:22]

5. Broader & Long-term Impacts

[11:23, 14:28]

Stakeholder Perspectives:
- Permit Holders: Potential for less ambiguity, with clearer compliance obligations, but also facing new uncertainties about what EPA’s concrete requirements will look like.
- States: States with their own permitting authority may now take more active roles, especially in places like California where state and federal rules overlap.
- Legislative Action: California’s SB 601 is highlighted as a possible effort to bolster state authority and fill regulatory gaps left by EPA's retreat.
- Caution: While numeric limits can be more defensible, successful models (such as Virginia’s in the Chesapeake Bay) rely on clear state authorization and data-driven targets.

Quote:
"There seems to be this shift from the narrative provisions to numeric and having that focus on any water quality trading requirements linking back to numeric limitations. And that's been critical for where we have seen trading flourish..."
— Sarah Johnson, [16:43]

6. The State of Uncertainty

[18:47]

Wait-and-see Era:
- The precise practical effects of the ruling remain undetermined.
- The EPA must urgently provide further guidance, but how, when, and in what form is uncertain.
- Both federal and state regulators, as well as permittees, must adapt in real time to this evolving standard.

Quote:
"The theme of the moment is nothing is certain. You can be certain. Nothing is certain."
— Sarah Johnson, [18:49]

Notable Quotes & Moments

"The Clean Water act does not authorize EPA to include such vague end result provisions in its nifty permits." – Willis Hahn, [03:18]
"Offsets would be just one option of many, but... they should be one that's really considered as a menu of options to try to achieve compliance." – Sarah Johnson, [13:15]
"It says what EPA cannot do, but it doesn't actually give much hint as to what it should be doing instead." – Willis Hahn, [18:22]

Timestamps for Major Segments

[02:12]: Overview of the Supreme Court’s decision and its legal rationale (Willis Hahn)
[05:03]: Discussion of flexibility, offsets, and water quality trading (Sarah Johnson)
[08:34]: Current permit holder advice and compliance interim strategies (Sarah Johnson)
[10:16]: The need for scientific specificity and EPA’s challenges (Sarah Johnson)
[11:23]: Broader impacts: perspectives of stakeholders and states (Sarah Johnson)
[14:28]: State authority, legislative responses, and numeric limits (Willis Hahn)
[18:47]: Closing thoughts on uncertainty and future directions (Sarah Johnson)

Takeaways

The Supreme Court’s decision is a turning point for Clean Water Act permitting, demanding specificity and eliminating authority for broad, outcome-only conditions in NPDES permits.
Water quality trading and innovative offsets may become favored compliance options, but depend on EPA guidance and state authorization.
Regulatory uncertainty prevails, with both immediate and long-term outcomes hinging on EPA's next steps, state legislation, and stakeholder adaptation.

For more on these issues and to stay up-to-date, visit nossaman.com and subscribe to Digging Into Land Use Law.

Loading summary

Transcript17 lines

[00:00]
A
In March 2025, the United States Supreme Court issued a landmark decision in the City and County of San Francisco versus the Environmental Protection Agency. This pivotal ruling struck down the so called end result requirements commonly imposed by the EPA and Clean Water act permits, fundamentally reshaping how permits under the National Pollution Discharge Elimination System are administered across the country with the potential to alter water quality compliance for permit holders nationwide. This decision raises key questions about the future of environmental regulations and the interplay between federal and state oversight. In this episode of Digging Into Land Use Law, we break down the Supreme Court decision, unravel the main issues at stake in the case, and explore the immediate and long term impacts for stakeholders, from individual permit holders to state and federal regulators. If you're navigating Clean Water act compliance, interested in regulatory shifts, or simply curious about how this ruling will influence water quality standards, this podcast will provide insight and guidance for the road ahead.
[01:28]
B
Welcome to Digging Into Land Use Law, Nassiman's podcast covering the development of all things in, on or above the ground.
[01:45]
A
I am Byron G. A partner in nosmin's Water Practice Group, and I'm joined today by fellow partners Willis Hahn, also in the Water Practice Group, and Sarah Johnson in our Environmental and Land Use Practice Group. Let's start by discussing the Supreme Court case. Willis, can you summarize the pivotal issues at stake in the City and County of San Francisco vs EPA case?
[02:12]
C
Thanks, Byron. Well, so this was a case in which the U.S. supreme Court decided it in March of 2025, and in that case they analyzed the permit requirements that the EPA had been routinely using in many of its discharge permits issued under the Clean Water Act. Under that act, dischargers need a permit under the National Pollution Discharge Elimination System or Nifties Program in order to discharge contaminants into waters of the United States. These permits often include specific numeric effluent limitations or may contain narrative limitations such as having permittees implement certain best practices. The case here dealt with another type of permit requirement, commonly known as end result provisions. Specifically, this case involved an action by EPA against the City and County of San Francisco to enforce these end result permit requirements for the city's Oceanside Combined Wastewater System. The permit at issue in this case involved a prohibition against discharges that, quote, contribute to a violation of any applicable water quality standard for receiving waters, as well as a second prohibition against performing any treatments or making any discharges that, quote, create pollution, contamination or nuisance as defined by California water code section 1305 0, end quote. Now, these limitations, as you see Here don't direct the city to take any specific steps on how to comply, but instead rely on the city to reach the end result being required. So after this lengthy case, the Supreme Court sided with the city, holding that the Clean Water act does not authorize EPA to include such vague end result provisions in its nifty permits. The majority opinion explained that the enforcement responsibility for determining and implementing steps to achieve water quality standards falls within the EPA's mandate and cannot be shifted onto permittees through general outcome based language like this. Specifically, the majority opinion found that the Clean Water act does not authorize EPA to impose requirements that condition the permittee's compliance on whether you know, the receiving waters meet applicable water quality standards, holding that such end result limitations neither fit the statutory interpretation envisioned by the Clean Water act, nor was it supported by the legislative history behind the Clean Water act's adoption in 1972. Since the time of the decision about two months ago now, the case has been remanded down to the 9th Circuit to figure out how the EPA is going to administer the permit when with this new guidance. And that's the big question that a lot of people are trying to figure out right now.
[05:03]
D
Thanks Willis, and thanks Byron. Good to be joining you guys for this discussion. There is a lot of speculation in different directions and stakeholders viewing this opinion from different opportunities and just looking again at the case. So we have EPA SCOTUS directing EPA to be more specific about what permit holders can, can and cannot do, what actions they can take. So EPA needs to propose specific options in those conditions. And EPA also needs to be able to demonstrate that those options have a nexus to water quality. And so several of the companies that I work with, they are offset providers. They sponsor and establish ecological restoration offsets which they essentially for anyone that's working in the environmental space, are doing something off site to provide ecological uplift that compensates for or mitigates offsets permitted actions and impacts elsewhere. But you have a nexus back to the permitted action based on a certain service area. So in the water quality space, that's typically a specific watershed or, or a huck within a watershed. And so we're viewing this decision where EPA is needing to come up with a menu of different options that are specific actions a permittee could take. And we're seeing water quality offsets as a really attractive option. It allows the permittee to not have to perform actions and minimize pollutants to the maximum nth degree at their facility, but gives them some flexibility to find a more cost effective option that Maybe is even more impactful for the watershed as well by turning to some of these off site solutions. So we see this as a real opportunity. Of course we'll need EPA to come out with guidance that clearly outlines where trading is an option. And I think several of these companies are hoping that this second Trump administration would be open to that. We saw during the first Trump administration issuance of a water quality trading memo that came out in February 2019. It outlined a bit of a roadmap on actions that EPA could take as well as ways to support the states to embrace water quality trading as a more efficient method to achieve their nifty targets. And really besides the memo coming out, we didn't see much action on the part of EPA to implement that or states necessarily reacting to it. And so the second Trump administration presents an opportunity to pick that work back up. And maybe it's the confluence of this decision, that interest from the first administration that results in water quality trading as emerging as a real option coming out of this decision. So you know, still though, waiting back to that, that first question we were talking about, still waiting though for final direction and, and guidance from epa and that's definitely what's going to be needed in the short term here for us to know what to, what to expect and for stakeholders to really understand what this decision means.
[08:34]
E
I'm totally in agreement. For a lot of the clients that we have that hold these nifty's permits and are trying to figure out what to do next. We've been rec that they do try to continue to comply with the terms of the existing permit. As you mentioned, there's a lot of uncertainty what's going to happen. But these end result permits are only one set of provisions within the overall permit. There's still the effluent limitations, still the narrative and best practice requirements. And so those are still in place, which is important to keep in mind that we're only talking about one aspect of the nifties program. In the long term, permittees might find that as they're renewing these permits or as these are evolving or when EPA can get to them, these can, you might see some more long term changes on how the, how the types of limitations are being placed and what they are. So you might, you know, these, these, it might get easier but it also might be fashioned in a way that makes it harder to comply with or more expensive. And so, so it's really going to be wait and see for the long term.
[09:43]
A
And a lot of these permits, I mean when we're talking about an industry sector. Permits, they have to be renewed once every five years. And so I guess EPA can't just sit on their hands or the states can't sit on their hands and just hope that something new comes along. Evidently, I think they will have to come up with something fairly quickly if they are to follow their schedule of renewing these permits every five years.
[10:16]
E
Right. And one of the, you know, one of the arguments made during the case is that, you know, these end result limit made by EPA in the case is that these end result limitations are really necessary because a lot of the times they don't have the science completed to support a specific, a more specific requirement in that context. And so a large part of it is that, you know, you need to do the work, put in, research the science to develop and craft limitations that are more specific. And so now that we have this decision, it's, it's the, the, the challenge is really on EPA to now do the science and craft these, which is much easier said than done.
[10:59]
D
Yeah. And again, goes back to just some of the challenges they're facing with this reduced workforce. You know, are there other cooperative approaches or partnerships they can pursue to get that data? But definitely need more data to have defensible permit conditions that would replace those end result provisions.
[11:24]
A
Okay, well, thank you, that was very helpful. Let's focus in on maybe some of the broader impacts of the clean water of this Supreme Court decision. How are different stakeholders viewing the long term impacts of this decision? Sarah, that might be one for you to start with.
[11:46]
D
Yeah, thanks. And I'll caveat this with. This is some, some speculation and, and coming from the perspective of several of the companies that I work with who are in the business of providing ecological offsets, essentially offsets for compliance with Clean Water act and other state and natural resources laws. And where they have found success is working with permit holders to off site water quality projects that are still within a certain watershed, they're still within a defined service area. Typically it's a huc. So there would be a nexus to the facility that's holding the permit. And they're seeing an opportunity with this decision and the Supreme Court's direction to EPA to do their job and to come up with what are the specific permit conditions a permittee has to comply with to show, you know, they're meeting the terms of the NPTS program and reducing pollutants overall in the receiving waters. And we're looking at these off site offsets as a specific action that could be pursued where you can demonstrate. Okay, Permittee, you've checked the box on your liability, you've pursued a specific permit action. And EPA in the states can say, we're also holding up our obligations under the act because we can demonstrate that these offsets are measurable towards improving water quality by reducing certain nutrients. So we're seeing this as a potential opportunity. You know, offsets would be just one option of many, but we're feeling that they should be one that's really considered as, as a menu of options to try to achieve compliance. So that's just one. One perspective. And I'll add that the first Trump administration actually issued a guidance memo in February of 2019 where they really were trying to incentivize and outline actions EPA could take, as well as ways to incentivize the states to embrace this water quality trading approach as a way to more efficiently achieve some of these pollutant goals. So there is some precedent from the first Trump administration offering support. And this is just an item, you know, we'd love to see if there was that guidance from EPA in response to the decision.
[14:29]
E
Yeah, totally agree. There's one of the other major stakeholders that are impacted by this, beyond permit holders, is, as you mentioned, the states. Now, in this specific case between San Francisco and epa, there's also concurrently oversight from the State Water Resources Control Board that has their own permitting authority that's not only concurrent with that of EPA under the Clean Water act, but California has its own water water quality control laws. And so there's a state regime as well. Now, it's a bit complex to figure out how that's going to be implemented. While the case has come down from the Supreme Court and is being remanded to the ninth Circuit, there's also concurrently a state action challenging, you know, similar end result requirements found in the state permit as well. But that case has been on hold until the federal side of the House is resolved at the ninth Circuit. And so we'll see what happens there. One of the things that we've seen in California from the State Water Resource Control Board is that they've been focusing a lot on these numeric limitations where there's adequate data and support for them. And so, you know, in light of this decision, maybe that's sort of furthers that shift towards that strategy. One other piece of thing that I'd want to note to take a look at is Senate Bill 601 that's currently in legislature. This is a bill introduced a few weeks ago that would sort of revamp the state authority and approach on clean water quality and sort of fill in the gaps where the federal government has pulled back. And so that that bill is currently making its rounds through the different committees in this in the state Senate. And something to keep an eye on?
[16:25]
D
Yeah, definitely. I know I've been working with some folks also tracking that bill and understand the intent where it's, it's trying to fill the gap and further bolster water quality oversight. But I know it also has some concerns just about, you know, practical implementation challenges. And so, you know, what are the lessons learned from this case that could be avoided by states also trying to work on writing their own water quality permits? And I think one of those big lessons, and you touched on this too, Willis, is there seems to be this shift from the narrative provisions to numeric and having that focus on any water quality trading requirements linking back to numeric limitations. And that's been critical for where we have seen trading flourish as a model, particularly in the Chesapeake Bay. You've seen that success because you have these total maximum daily loads that are based on specific pollutant targets. And so again, you just, you, you've got to have through state and federal partnership and EPA staff working together to come up with the data to support that. You also need to have states that are willing to embrace trading again in the Bay Area, the state that's been most successful, Virginia, they had a state law that also clearly authorized this trading between point source, so your permit holders and non point source offsets and reductions. And so you need a couple different factors to come together. But if you can get those factors to come together, it's a really defensible option to point for EPA to be able to point their permittee holders towards.
[18:22]
E
Yeah. So it sounds like there's a number of approaches that EPA and other stakeholders can be taking here. I think the Supreme Court case is really interesting in that it says what EPA cannot do, but it doesn't actually give much hint as to what it should be doing instead. And so with that sort of uncertainty, this is the world we're stepping into now.
[18:47]
D
The theme of the moment is nothing is certain. You can be certain. Nothing is certain.
[18:53]
A
Yes. And you have to address that uncertainty without any resources, which also complicates Clean Water act compliance and the shape of permits in the future. Well, that's some very interesting insight and I want to thank you for sharing your insight with, with, with us and also like to thank our listeners for joining us on this episode of Digging Into Land Use Law. For additional information on this topic, or other environmental and land use matters, please visit our website at nosiman.com n o s s A-M-A-N.com and don't forget to subscribe to Digging Into Land Use Law whenever you listen to a podcast. To podcast so you don't miss an episode. Until next time.
[19:56]
B
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