75 F.4th 1074
9th Cir.2023Background
- San Francisco operates the Oceanside combined sewer system (serving ~250,000) that discharges to the Pacific Ocean under a jointly issued NPDES permit (EPA + CA Regional Water Board).
- EPA and the Regional Water Board reissued the Oceanside NPDES permit in 2019; San Francisco challenged three contested provisions after EAB denial and sought judicial review in the Ninth Circuit.
- Challenged permit terms: (1) two general narrative prohibitions (Receiving Water Limitations forbidding discharges that "cause or contribute" to violations of any applicable water quality standard; and an Attachment G clause barring discharge that "create[s] pollution, contamination, or nuisance"), and (2) a requirement to update San Francisco’s Long-Term Control Plan (LTCP) for CSO control, including reassessment of discharges to "sensitive areas."
- EPA justified the narrative provisions as a "backstop" to numeric and operational permit terms and cited record evidence of CSO impacts (bacteriological exceedances, pollutant concentrations, reported overflows, recreational exposure) and that San Francisco’s LTCP had not been updated since the early 1990s.
- The Ninth Circuit applied the APA arbitrary-and-capricious standard and Chevron/Kisor deference principles, held EPA had statutory/regulatory authority to include the narrative prohibitions and to require an LTCP update, and denied San Francisco’s petition.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Legality of general narrative Receiving Water Limitations (permit forbidding discharges that cause/contribute to WQS violations) | SF: Too vague; CWA requires specific effluent limits or pollutant-by-pollutant WQBELs and EPA must follow §122.44(d) procedures | EPA: CWA and regs authorize narrative limits to meet WQS; these provisions are a lawful backstop alongside numeric limits | Court: Narrative prohibitions are authorized by CWA and regs, lawful as backstops and consistent with precedent; upheld |
| Procedural challenge that EPA had to perform pollutant-specific reasonable-potential analyses under 40 C.F.R. §122.44(d) before imposing narrative WQBELs | SF: EPA must follow §122.44(d)(1)(i)-(vii) process for WQBELs; agency erred by not doing so | EPA: §122.44(d) sets minimum process for pollutant-specific WQBELs but does not preclude narrative permit terms | Held: EPA not required to use §122.44(d) procedures to issue general narrative provisions; upheld |
| Authority to require LTCP update (and sensitive-area reassessment) given SF’s prior exemption under CSO Policy I.C.1 | SF: Under CSO Policy, an LTCP revision may be required only upon a determination that WQS are not being attained; EPA made no such finding | EPA: CSO Policy (esp. I.C.3 and IV.B) authorizes reassessment and permit revisions; record shows outdated LTCP and evidence of impacts supporting update | Held: EPA has authority to require an LTCP update and reassessment of sensitive areas; requirement is rationally supported by the record; upheld |
Key Cases Cited
- PUD No. 1 of Jefferson County v. Washington Dep’t of Ecology, 511 U.S. 700 (upheld use of narrative permit criteria alongside numeric limits)
- Natural Res. Def. Council v. U.S. EPA, 808 F.3d 556 (2d Cir.) (invalidated a stand-alone, non-specific narrative WQBEL)
- Natural Res. Def. Council, Inc. v. County of Los Angeles, 725 F.3d 1194 (9th Cir.) (upheld enforcement of a narrative receiving-water limitation similar to this case)
- Northwest Envtl. Advocates v. City of Portland, 56 F.3d 979 (9th Cir.) (citizen suits can enforce narrative water-quality standards incorporated in permits)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency action must have a rational connection to the record)
- EPA v. California, 426 U.S. 200 (describing NPDES/effluent-limitation framework under the CWA)
- Arkansas v. Oklahoma, 503 U.S. 91 (CWA does not mandate a total ban on discharges into waters already violating standards)
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (deference to reasonable agency statutory interpretation)
- Kisor v. Wilkie, 139 S. Ct. 2400 (deference principles for agency interpretation of genuinely ambiguous regulations)