A man's hand in a blue glove takes a close-up of water into a test tube to measure water pollution. Background

Did the 9th Circuit Just Let the EPA ‘Fudge’ the Numbers on Water Pollution?

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Ever since the Clean Water Act of 1972 dramatically overhauled the way in which America, through the EPA, monitors and protects its waterways, there has been the struggle between the literal life-and-death need for clean water, and the cold, hard reality that people can, will, and sometimes-have-to release pollutants into the water as part of American life.

The balancing mechanism, however, is built right into the act itself in the form of the National Pollutant Discharge Elimination System (NPDES) permit program.

As the program dictates, you need a NPDES permit to release pollutants, e.g.: sand, dirt, rock, and industrial, municipal, or agricultural waste into the waters of the United States. While the program answers the question of “can I release pollutants,” the battle continues as to “how much pollution can I release?”

This question has been argued and resolved through the courts for decades, generally representing a trend toward specific, numeric quantities of pollutants, such as in 1994 and 2015, when the Supreme Court and 2nd Circuit, respectively, struck down permits that were insufficiently specific with respect to the nature and quantity of the pollutants to be regulated.

That’s why California was perplexed by the 9th Circuit Court of Appeals decision last week to allow the EPA to use superficial language in a permit without offering numerical or statistical values, to wit: “neither the treatment nor the discharge of pollutants shall create pollution, contamination, or nuisance as defined by California Water Code section 13050.”

In seeking Cert to the Supreme Court, San Francisco argues that such generic language does not put NPDES permitholders on sufficient notice as to what their obligations are. John Coté, a spokesperson for the San Francisco Public Utilities Commission, and Jen Kwart, a spokesperson for the San Francisco City Attorney’s Office, said in a joint statement: “After San Francisco and clean water agencies around the country have spent billions of dollars upgrading treatment plants and other infrastructure to improve water quality, the EPA is . . . trying to tell permit holders they can’t cause ‘too much’ pollution, but it isn’t telling us what ‘too much’ is. We’re asking for clear requirements to protect water quality so we can follow them.”