Environmental Appeals Board Denies NACWA Member San Francisco’s Permit Challenge

(December 9, 2020) – The Environmental Protection Agency’s (EPA) Environmental Appeals Board (EAB) recently issued an opinion denying NACWA member the City and County of San Francisco’s appeal of a Clean Water Act (CWA) National Pollutant Discharge Elimination System (NPDES) permit issued by EPA Region 9 and the California Regional Water Quality Control Board for its combined sewer system discharges.

NACWA earlier this year teamed up with the California Association of Sanitation Agencies in filing a brief to the EAB in support of San Francisco’s positions.

Several of the permitting provisions objected to by San Francisco but upheld by the EAB are of concern to many in the clean water community. Specifically, the EAB supported the agencies’ inclusion of a narrative, unqualified prohibition against “causing or contributing to a violation of any water quality standard;” a requirement that San Francisco report on sewer overflows from its system that did not reach a jurisdictional “water of the United States,” including basement backups; and a requirement for San Francisco to update its combined sewer overflow (CSO) long-term control plan (LTCP) absent any showing that the system was causing water quality concerns.   

According to the EAB, generic prohibitions against violating water quality standards are lawful narrative limitations which, contrary to the assertions made by San Francisco and NACWA, are not so “vague or unclear as to deprive [permittees] of fair notice” of what is actually required by the permit. 

Likewise, the EAB determined that requirements to report on isolated sewer overflows does not entail their “regulation,” but rather is an “appropriate mechanism, grounded in the Combined Sewer Overflow Control Policy and the CWA, to determine whether the permitted combined sewer system is operating in compliance with the permit.”       

Finally, the Board held that requiring San Francisco to update its LTCP to ensure more recent information is used to assess whether water quality standards are being met is consistent with the CWA’s incorporation of the Combined Sewer Overflow Control Policy, as NPDES permits for combined sewer systems “reasonably can include updates to long-term control plans, particularly where such plans are decades old.”

NACWA will continue to review the decision and talk to the impacted parties and will provide additional information soon on potential next steps in the permit challenge. In the interim, please contact NACWA’s Chief Legal Counsel, Amanda Aspatore with any questions.