Does EPA Have Authority To Include Narrative Criteria In NPDES Permits? Yes, For Now (Video)

Earlier this week, the 9^th Circuit Court of Appeals affirmed EPA's NPDES permit issued to San Francisco's Oceanside sewer system. San Francisco had challenged the permit on the ground that EPA does not have authority to impose narrative prohibitions related to compliance with water quality criteria. Here is the primary section subject to challenge:

As EPA pointed out, and as most practitioners are probably aware, provisions such as this are common in NPDES permits. That doesn't mean that such provisions are in fact authorized and it's worth noting that the Court's decision was not unanimous. Moreover, while this case does not involve the definition of WOTUS, I think that there are