The U.S. Court of Appeals for the Ninth Circuit last week heard oral argument in NACWA member the San Francisco Public Utility Commission’s challenge to their first National Pollutant Discharge Elimination System (NPDES) permit issued after completion of their combined sewer overflow (CSO) long term control plan (LTCP).

Before the court are two critical issues for NACWA’s members: (1) can permit writers require a city to revisit its LTCP absent data showing that there is a water quality need to do so; and (2) is a generic statement that discharges cannot “cause or contribute” to the violation of water quality standards appropriate in NPDES permits?

During an active round of questioning from the three-judge panel, the EPA, represented by the Department of Justice, reiterated its position that EPA’s 1994 CSO Policy gives the Agency broad discretion to require cities to reassess the efficacy of their CSO controls, and to require cities to “do more” even absent a showing of water quality impairment. 

EPA also continued to assert that generic “cause or contribute” language in NPDES permits is simply a “narrative prohibition” that permit writers need as a “backstop” to ensure that discharges are compliant with the Clean Water Act. 

San Francisco, represented by NACWA Legal Affiliate Beveridge & Diamond, pushed back on both claims.  The City pointed to the language of the CSO Policy to rebut EPA’s assertions that, upon successful implementation of an LTCP, cities should have to continue to invest more in CSO controls simply because more “could” be done. 

San Francisco also reiterated the position – long held by NACWA and many others – that the inclusion of generic “cause or contribute” language in NPDES permits amounts to a shirking of Agency permit-writing responsibility and inappropriately leaves permit holders vulnerable to post-hoc enforcement.  

NACWA, joined by members the Louisville/Jefferson County Metropolitan Sewer District and the City of New York, as well as the California Association of Sanitation Agencies, filed an amicus brief in support of San Francisco in the case.  NACWA’s brief was authored by NACWA Legal Affiliate Crowell & Moring. 

The Ninth Circuit panel – which noted the “very important” nature of the issues at stake upon completion of oral argument – will now take the case under advisement.  NACWA will continue to alert members to any developments as they occur.  Please contact NACWA’s Chief Legal Counsel, Amanda Aspatore, with any questions.