As predicted in February, our nation's highest court is about to hear its third Clean Water Act in four years.  Anyone who doubts the outcome of this case hasn't read the other two Supreme Court opinions and that brings to mind what Benjamin Franklin had to say about getting wise too late.

Like the other two Clean Water Act cases recently decided by the Supreme Court, Hawaii Wildlife Fund v. County of Maui and Sackett v. EPA, City and County of San Francisco v. EPA is an appeal from a Ninth Circuit Court of Appeals decision in EPA's favor.  The next time this Supreme Court takes an environmental case out of the Ninth Circuit for the purpose of affirming the Court of Appeals' decision might be the first time.

In this case, the City and County of San Francisco are asking the Supreme Court to overturn a split Ninth Circuit Court of Appeals decision upholding an EPA NPDES permit that contains two general narrative prohibitions on discharges from the Oceanside combined sewer system and wastewater treatment facility.  One of those prohibitions was of discharges from the facility that “cause or contribute to violations of applicable water quality standards.”

Fifteen industry groups, including the American Chemistry Council, the American Farm Bureau Foundation and the United States Chamber of Commerce, are joined by a dozen or so water supply and conservation associations, including the National Association of Clean Water Agencies, and more than a dozen municipal water and sewer providers, including the Boston Water and Sewer Commission, in San Francisco's corner.

As my daughter used to say playing “Go Fish”, I'm certain they're all about to “fish their wish.”

EPA is now in the impossible position of having to explain to the same Court that ruled against it in Sackett how “cause or contribute to violations of applicable water quality standards” is any less “hopelessly indeterminate” than EPA's (and the Ninth Circuit's) interpretation of the term “Waters of the United States” in Sackett.  The Supreme Court struck down that EPA interpretation based on what it characterized as a Constitutional due process requirement that “penal statutes” be defined "‘with sufficient definiteness that ordinary people can understand what conduct is prohibited’ and ‘in a manner that does not encourage arbitrary and discriminatory enforcement.’” 

To make matters worse, after San Francisco had already sought the Supreme Court's intervention, EPA chose to sue San Francisco for violating a related permit which made the possibility of enforcement with mind numbing penalties a certainty.  There may be a compelling reason that EPA absolutely needed to file suit against San Francisco right this second.  I can’t for the life of me think of what that reason would be.   

If I were EPA, I would be trying to get as much mileage as I can out of the relatively recent Supreme Court's conclusion in Maui that the Clean Water Act applies to groundwater discharges that are the “functional equivalent” of a discharge to a Water of the United States.  I would argue that EPA's “cause or contribute” standard is consistent with the Supreme Court's thinking about functional equivalency.  That's a far cry from what EPA has said so far and given the significant change in the Court's composition since Maui, this may be a bridge too far. 

In the end, EPA should consider it a win if it ends up where the wastewater and stormwater agencies and municipalities say it should in their brief to the Supreme Court, with EPA permit writers developing “discharge-specific effluent limitations” “derived from” "applicable water quality standards.”