CITY & COUNTY OF SAN FRANCISCO V. USEPA, No. 21-70282 (9th Cir. 2023)
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The City and County of San Francisco (“San Francisco”) petitions for review of a final order of the U.S. Environmental Protection Agency (“EPA”) denying review of San Francisco’s federal National Pollutant Discharge Elimination System (“NPDES”) permit for its Oceanside combined sewer system and wastewater treatment facility (“wastewater system”). This NPDES permit, issued pursuant to the Clean Water Act of 1972 (“CWA”), 33 U.S.C. §§ 1251–1387, allows San Francisco to discharge from its wastewater system into the Pacific Ocean. San Francisco contends that EPA acted arbitrarily and capriciously.
The Ninth Circuit denied San Francisco’s petition. The panel held that the EPA had authority under the CWA to include the two general narrative prohibitions. Noting that Supreme Court precedent, this Circuit’s prior cases, and prior Environmental Appeals Board decisions support the legality and confirm the enforceability of general narrative prohibitions in permits issued under the CWA, the panel held that the two narrative provisions were consistent with the CWA and its implementing regulations. The panel further held that the EPA was not required to follow the procedures set forth in 40 C.F.R. Section 122.44(d)(1)(i)-(vii) for deriving pollutant-specific effluent limitations in imposing the general narrative provisions and that the EPA’s decision to impose the general narrative provisions was rationally connected to evidence in the record indicating that a “backstop” to the more specific provisions would be useful in protecting beneficial uses. The panel next held that the EPA had authority under its Combined Sewer Overflow Control Policy to require San Francisco to update its long-term control plan for its combined sewer overflows.
Court Description: National Pollutant Discharge Elimination System. Permits The panel denied the City and County of San Francisco’s petition for review of a final order of the U.S. Environmental Protection Agency (“EPA”) denying review of San Francisco’s federal National Pollutant Discharge Elimination System (“NPDES”) permit for its Oceanside combined sewer system and wastewater treatment facility.
The NPDES permit, which was issued pursuant to the Clean Water Act of 1972 (“CWA”), 33 U.S.C. §§ 1251– 1387, allows San Francisco to discharge from its wastewater system into the Pacific Ocean, and includes (1) two general narrative prohibitions on discharges that cause or contribute to violations of applicable water quality standards, and (2) a requirement that San Francisco update its long-term control plan for its combined sewer overflows.
The panel held that the EPA had authority under the CWA to include the two general narrative prohibitions.
Noting that Supreme Court precedent, this Circuit’s prior cases, and prior Environmental Appeals Board decisions support the legality and confirm the enforceability of general narrative prohibitions in permits issued under the CWA, the panel held that the two narrative provisions were consistent with the CWA and its implementing regulations. The panel further held that the EPA was not required to follow the procedures set forth in 40 C.F.R. § 122.44(d)(1)(i)-(vii) for deriving pollutant-specific effluent limitations in imposing the general narrative provisions, and that the EPA’s decision to impose the general narrative provisions was rationally connected to evidence in the record indicating that a “backstop” to the more specific provisions would be useful in protecting beneficial uses.
The panel next held that the EPA had authority under its Combined Sewer Overflow Control Policy to require San Francisco to update its long-term control plan for its combined sewer overflows and reevaluate alternatives for its combined sewer overflow discharges to sensitive areas. The EPA’s ability to require San Francisco to update its long- term control plan was not conditioned on a finding that water quality standards were not being met and was rationally supported by evidence in the record.
Dissenting, Judge Collins would grant San Francisco’s petition for review, vacate the challenged permit conditions, and remand the case to the agency for further consideration. First, the two general narrative limitations were inconsistent with the text of the CWA, and, by including them, the EPA fundamentally abdicated the regulatory task assigned to it under the CWA. Second, because no determination was made that San Francisco’s Oceanside System had caused the violation of any applicable water control standards, the EPA lacked authority under the Combined Sewer Overflow Control Policy to impose a condition requiring San Francisco to submit a revised long- term control plan.
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