Agency Overreach or Necessary Regulation? A Comparative Look at the Scope of the Clean Water Act

In 2024, the Clean Water Act (CWA) returned to the forefront of environmental law amid a new legal controversy within the Supreme Court. On October 16, the City and County of San Francisco challenged the Environmental Protection Agency (EPA) in the Supreme Court over a pollution discharge permit reissued by the agency. [1] This case comes in the aftermath of the Supreme Court’s decision in Loper Price Enterprises v. Raimondo (2024) to overrule the precedent of Chevron Deference, which allowed courts to defer the interpretation of ambiguous statutes to relevant agencies. [2] In the past, the CWA has faced four separate challenges related to the definition of “waters of the United States” (WOTUS), representing a larger trend of reigning in the Act’s jurisdiction. [3] Ultimately, the Supreme Court’s decisions in these cases were made with deference to the agency’s ecological judgments. However, ongoing questions regarding the scope of the CWA in the absence of Chevron Deference have become increasingly prevalent at the Supreme Court. Most recently the Supreme Court addressed these questions in the case of The City and County of San Francisco v. Environmental Protection Agency (2024). The Supreme Court’s pending decision, if based in legal precedent, will likely further restrict the agency’s interpretation of the law. This can potentially leave many formerly regulated waters unprotected by the CWA, with significant consequences for both water quality and flood prevention.

The CWA has played a significant role as a landmark piece of U.S. environmental legislation, leading to several years of legal precedent protecting WOTUS. Congress passed the CWA in response to the water quality crisis caused by inadequate legislation to keep waterways clean and safe. In 1972, only one-third of the nation’s waters met water quality standards. This prompted the government to pass the CWA to protect recreational uses of water and eliminate the discharge of pollutants into waterways. [4] To achieve these goals, the CWA authorized significant federal funding for the construction of wastewater treatment plants and granted the EPA the authority to enforce stringent requirements on the discharge of pollutants into waterways for both industries and municipalities. [5] Through setting goals for investments in clean water infrastructure and developing rigorous water quality standards, the CWA has ensured that the nation’s waters will continue to be both drinkable and swimmable for generations to come. Despite its success, opponents have criticized the EPA’s enforcement of the Act, claiming that improper interpretations of WOTUS have resulted in overreaching water policies that block meaningful infrastructure projects. [6] This ongoing debate over the scope of the EPA's authority, and whether it aligns with Congress's original intent, has led to numerous legal challenges before the Supreme Court.

Given that the CWA authorizes the EPA to impose necessary limits to ensure compliance with water quality standards, one would think that it would be within their jurisdiction to regulate with a combination of prohibitions of general actions as well as numerical limits. However, to the contrary, the City and County of San Francisco contends that the narrative prohibitions against violating water quality standards in their National Pollutant Discharge Elimination System (NPDES) permit are inconsistent with the CWA’s implementing regulations. [7]  Specifically, the city argues that the permit fails to provide sufficient guidance for discharges to ensure compliance with water quality standards, therefore failing to satisfy the EPA’s regulatory obligations under the CWA. [8] The Ninth Circuit disagreed with San Francisco, denying the challenges to narrative prohibitions in the permit. [9] The court found that the CWA not only authorizes NPDES permits to include requirements in addition to effluent limitation, but in fact, “they require such narrative limitations when necessary to satisfy applicable WQS [Water Quality Standards].” [10] Particularly, they noted that a Supreme Court precedent established in the case of PUD No. 1 of Jefferson County v. Washington Department of Ecology (1994) confirmed the legality of narrative prohibitions in permits under the CWA. [11] Notably, this decision was made with deference to the agency’s reasonable interpretation of the statute, opening the door to future challenges in the wake of the overruling of Chevron Deference.

PUD No. 1 of Jefferson County v. Washington Department of Ecology (1994) established a framework that narrative prohibitions are permitted so long as they are reasonable and entitled to deference. [12] In the court’s summary, Justice O’Connor wrote that the EPA may enforce minimum flow requirements as long as they are necessary to enforce water quality standards for the protection of designated uses. [13] With this framework in mind, the ruling made by the Ninth Circuit for the City and County of San Francisco is dependent on whether the narrative prohibitions are necessary in the absence of deference. Beginning with Loper Price Enterprises v. Raimondo (2024), the Supreme Court established a precedent that courts must exercise independent judgment in the interpretation of ambiguous statutes, potentially allowing for the overturning of the precedent of general prohibitions being permitted under the CWA. [14] The court affirmed that the rulings of prior cases that held agency acts to be lawful are still subject to statutory stare decisis despite the change in interpretive methodology. Chief Justice Roberts wrote, “Mere reliance on Chevron cannot constitute a ‘special justification’ for overruling such a holding.” [15] While the lack of deference does not directly overturn precedents established with Chevron, it creates a standard that the determination of the best interpretation of a statute must be left to the court’s discretion. Ultimately, the court’s pending decision in The City and County of San Francisco v. Environmental Protection Agency (2024) will be dependent on whether the court finds the EPA’s interpretation to be both reasonable and the most accurate to Congress’s intent.

Sackett v. Environmental protection Agency (2023) illustrates an example of the Supreme Court trending towards stricter interpretations of the CWA in recent terms. In this case, the EPA ordered Michael and Chantell Sackett to restore their property to its original state after they backfilled their lot, which contained wetlands, with sand and gravel. This violated Article 33 of CWA that prohibits discharging pollutants into WOTUS. [16] The court ultimately ruled that the CWA only extends to wetlands that are indistinguishably connected to WOTUS, and therefore reversed the judgment of the Ninth Circuit. The definition of adjacent became a critical part of this decision, with the court defining adjacent wetlands to only include wetlands that are adjoining to a covered water. Countering both ordinary definition and longstanding agency practice, the redefining of adjacent reduced the scope of the agency’s authority under the CWA. In a departure from traditional interpretations of reading the text to determine the meaning of words with their ordinary understanding, the majority opinion favored interpretations that not only eliminate vagueness, but also reduce the breadth of a definition. In a concurring opinion, Justice Kagan wrote, “It [the majority] relies as well on a judicially manufactured clear-statement rule. When Congress (so says the majority) exercises power ‘over private property’ — particularly, over ‘land and water use’ — it must adopt ‘exceedingly clear language.’” [17] The majority opinion narrows the interpretation of language in the CWA, which if maintained in the case of The City and County of San Francisco v. Environmental Protection Agency (2024), could easily lead to the Ninth Circuit’s decision being overruled, deciding that the CWA does not authorize the EPA to impose general narrative prohibitions. 

The Clean Water Act has often faced challenges to the extent of its jurisdiction. While The City and County of San Francisco v. Environmental Protection Agency (2024) represents only one of these challenges, it could be an important indicator for future Supreme Court rulings on environmental law in a post-Chevron landscape. Ultimately, the Supreme Court’s pending decision will depend on the Justices’ determination of whether narrative prohibitions are necessary for the EPA to enforce the CWA’s water quality standards. With this in mind, past precedent and recent decisions indicate that the Supreme Court will likely oppose general narrative prohibitions, resulting in the overrule of the Ninth Circuit’s decision. The Supreme Court's efforts to redefine the scope of the CWA address concerns about potential overreach by the EPA, but they could also render environmental law ineffective in the face of rising environmental challenges, putting decades of progress at risk of reversal.

Edited by Lika Gegenava

[1] City and County of San Francisco v. U.S. Environmental Protection Agency, 75 F.4th 1074, 5 (9th Cir. 2023).

[2] “Justifying the Chevron Doctrine: Insights from the Rule of Lenity,” Harvard Law Review 123, no. 8 (2010): 2043; Loper Bright Enterprises v. Raimondo, 603 U.S. ____, 35 (2024).

[3] “About Waters of the United States,” United States Environmental Protection Agency, accessed October 30, 2024.

https://www.epa.gov/wotus/about-waters-united-states#SCOTUS

[4] Grace Napolitano, “The Clean Water Act at Fifty: Highlights and Lessons from a Half Century of Transformative Legislation,” Authenticated U.S. Government Information (2022), 1-2.

https://www.govinfo.gov/content/pkg/CHRG-117hhrg49438/pdf/CHRG-117hhrg49438.pdf

[5] Michael D. Witt, “The Clean Water Act at Fifty: Highlights and Lessons from a Half Century of Transformative Legislation,” Authenticated U.S. Government Information (2022), 19-20.

https://www.govinfo.gov/content/pkg/CHRG-117hhrg49438/pdf/CHRG-117hhrg49438.pdf

[6] David Rouzer, “The Clean Water Act at Fifty: Highlights and Lessons from a Half Century of Transformative Legislation,” Authenticated U.S. Government Information (2022), 9.

https://www.govinfo.gov/content/pkg/CHRG-117hhrg49438/pdf/CHRG-117hhrg49438.pdf

[7] City and County of San Francisco v. U.S. Environmental Protection Agency, 75 F.4th 1074, 5 (9th Cir. 2023).

[8] City and County of San Francisco v. U.S. Environmental Protection Agency, 75 F.4th 1074, 31 (9th Cir. 2023).

[9] City and County of San Francisco v. U.S. Environmental Protection Agency, 75 F.4th 1074, 44 (9th Cir. 2023).

[10] City and County of San Francisco v. U.S. Environmental Protection Agency, 75 F.4th 1074, 29 (9th Cir. 2023).

[11] City and County of San Francisco v. U.S. Environmental Protection Agency, 75 F.4th 1074, 29-30 (9th Cir. 2023).

[12] PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 712 (1994).

[13] PUD No. 1 of Jefferson County v. Washington Department of Ecology, 511 U.S. 700, 712 (1994).

[14] Loper Bright Enterprises v. Raimondo, 603 U.S. ____, 35 (2024).

[15] Loper Bright Enterprises v. Raimondo, 603 U.S. ____, 34-35 (2024).

[16] Sackett v. Environmental Protection Agency, 598 U.S. ____, 4-6 (2023).

[17] Sackett v. Environmental Protection Agency, 598 U.S. ____, 4 (2023).