NACWA Files Amicus Brief in San Francisco Permit Challenge

(April 17, 2020) – NACWA joined with the California Association of Sanitation Agencies (CASA) in filing an amicus brief earlier this week with the Environmental Protection Agency’s (EPA) Environmental Appeals Board (EAB) in support of Member Agency the San Francisco Public Utilities Commission’s Petition for Review of a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit issued by EPA Region 9. 

NACWA’s brief, which was supported through the Association’s Targeted Action Fund (TAF), provides additional arguments supporting San Francisco’s challenge to multiple terms and requirements included by Region 9 in the permit for its combined sewer system (CSS). Several of these provisions could, if upheld by the EAB, have negative ramifications for all municipal permittees.

Specifically, NACWA’s brief:

  1. Outlines how the inclusion of generic language in NPDES permits requiring that discharges not “cause or contribute to a violation of any applicable water standard” subverts the Congressional intent of the 1972 CWA amendments; violates EPA’s permitting regulations and guidance, which place the burden on permit writers to clearly outline compliance obligations; and unfairly subjects municipal dischargers to potential post-hoc liability and expenses;
  2. Argues that, pursuant to the 1994 Combined Sewer Overflow (CSO) Policy, EPA cannot require utilities to revise long-term control plans (LTCPs) absent a finding that doing so is necessary to protect water quality, and that requiring such unjustified revisions puts at risk the billions of dollars CSS communities across the country have invested in improving water quality under the CSO Policy;
  3. Provides additional legal support for San Francisco’s assertion that Region 9’s attempt to require reporting on isolated sewer overflows that do not reach navigable waters in an NPDES permit exceeds the scope of EPA’s CWA jurisdiction while recognizing that isolated overflows should be addressed by applicable state and local regulatory programs.

NACWA and CASA joined San Francisco in asking the EAB to remand the permit to Region 9 for appropriate revisions.  For questions concerning the ongoing permit review or NACWA’s brief, please contact Amanda Aspatore, NACWA’s Chief Legal Counsel.