The San Francisco Board of Supervisors has voted to approve a non-binding resolution urging the city attorney and the San Francisco Public Utilities Commission to stop a lawsuit against the U.S. Environmental Protection Agency or to seek to mediate a settlement with the EPA ahead of oral arguments in front of the U.S. Supreme Court next week.
Supervisors Rafael Mandelman and Matt Dorsey were the only no votes.
The lawsuit stems from an updated discharge permit for the Oceanside wastewater treatment facility in San Francisco that deals with how stormwater and wastewater mix during heavy rain events.
Despite the resolution’s push for the case to be dropped or resolved in some other way, City Attorney David Chiu’s office insists the Supreme Court case and its oral arguments scheduled for Oct. 16 is inevitable unless the Solicitor General agrees to withdraw.
“The oral argument has to go through,” said Jen Kwart, spokesperson for the city attorney. “It has to happen. There’s no way to stop it at this point, unless the Solicitor General’s office were to sign a literal piece of paper saying that they would be willing to settle and pull it off with us. And that is not an option. They are not willing to do that.”
‘Not too late’
Supervisor Myrna Melgar, who authored the resolution, believes the lawsuit could still be withdrawn or a deal could be made, but the city attorney has chosen not to take that route.
“It’s not too late,” said Melgar, who represents District 7 where the permit was issued. “Not that there is any impediment, legally or procedurally to withdrawing the lawsuit or also making some kind of deal with the regional Water Board of the EPA or he can just withdraw the lawsuit. He absolutely can do that. It’s his choice not to,” she said.
The case stems from the pollution that happens during stormy weather. In San Francisco, and in many cities around the country, heavy rain pushes stormwater and wastewater systems beyond capacity, and they end up mixing in their rush to the sea.
The EPA has a permit for that. It’s issued through the Clean Water Act, the primary federal law governing water pollution, which regulates discharges of pollutants into U.S. waters through a permitting process. San Francisco’s permit has been delayed for more than 10 years.
“The Clean Water Act requires permits to be updated every five years to reflect new information that we have about what’s going on in the water and what’s going on with technology,” said Becky Hammer, senior attorney & deputy director of federal water policy at the Natural Resources Defense Council, a nonprofit international environmental advocacy group.
“San Francisco and EPA have been arguing about what should go in this permit for so long. It’s been more than 10 years. They were due for a new permit, quite a while ago,” Hammer said, referring to the city’s 2019 objections to the new 2013 permits. The city’s objections were overruled by the San Francisco Bay Regional Water Quality Control Board and the U.S. Environmental Appeals Board, an impartial tribunal set up by the EPA that hears appeals of major statutes the agency administers.
San Francisco then sought review by the U.S. Court of Appeals for the 9th Circuit, which heard the case in 2022 and issued a divided opinion in 2023, narrowly ruling in the EPA’s favor.
According to Nancy Hayden Crowley, spokesperson for the SFPUC, San Francisco’s wet-weather control facilities operate with permits issued by the EPA and the regional water quality control board.
“The system handles most rainstorms by sending the combined sewage and stormwater to the treatment plants for treatment and disinfection prior to releasing it into the Bay or ocean through deep-water outfalls,” said Crowley. “Some extreme storms can exceed the capacity of the system, requiring partially treated discharges through permitted nearshore outfalls along the Bay or ocean. These discharges are known as combined sewer discharges and are authorized by permits. When discharges do occur, they consist overwhelmingly of stormwater.”
Kwart, with the city attorney’s office, said those kinds of discharges happen in San Francisco between eight to 10 times per year. The city’s complaint before the Supreme Court is over three sentences in the updated permits, which it said leave the city vulnerable to surprise violations, even if they upgrade their stormwater treatment facilities.
They are supported in their lawsuit in amici curiae, or letters in support, to the Supreme Court by a list of wastewater and stormwater agencies around the country, including New York City, Washington, D.C., and Mountain View down the Peninsula.
“San Francisco did not challenge the general narrative prohibitions,” said Supervisor Matt Dorsey at the board meeting just before Tuesday’s vote. “They never suggested they were unlawful, it challenged one section regarding generic prohibitions.”
“These provisions are referred to as the ‘Generic Prohibitions,’” Chiu said in a public statement Monday. “And those few sentences effectively say the city must not contribute to excess pollution in the Bay or Pacific Ocean, without making any effort to define what constitutes excess or which pollutants the city needs to control.
Discrepancy in numbers
Chiu argued that San Francisco would be legally responsible for the quality of the Pacific Ocean and Bay as a whole, and the city would need to spend over $10 billion more on the Bayside alone to modify its stormwater and sewage infrastructure. Chiu cited an economic study commissioned by the city that calculated the cost to taxpayers under currently planned investments.
“The average annual sewer bill will go from approximately $851 today to an estimated $3,500 in 15 years; on top of that, the additional $10-plus billion would result in an average annual sewer bill of nearly $9,000,” Chiu said, concluding that between 8,100 and 10,600 more San Franciscans would be forced into poverty.
“Those numbers are fake,” said Melgar. “We have a capital plan for the PUC, and we already have approved the project in my district so the PUC will comply with the California Coastal Commission. That’s already in the works. Let me be clear that the numbers that have been put out by the city attorney about $10 billion over the next 30 years have no substance. They come from a study that was submitted by a consultant. But there is no study, there’s no proposal, there’s no budget, there’s no capital plan that has those numbers. They don’t exist anywhere.”
Chiu’s memo also cites a 2015 case, National Resources Defense Council vs. EPA, which it says was similar. The NRDC won that case with a unanimous decision.
In the 2015 case, the NRDC challenged the EPA over a general permit that was issued to shipping vessels for the discharge of ballast water. Ships would go through the Great Lakes and dump the water in their hulls to balance their load, and that water contained invasive species.
“The two cases on the surface do seem very similar, but in reality, the cases asked two different legal questions,” said Hammer of the NRDC. “In the 2015 case, the there was this kind of generic language about how their operators were not allowed to contribute to water quality violations, which is a very similar language to what’s in the San Francisco sewer overflow permit. But in the shipping permit, there were no monitoring requirements to test whether the discharges were causing problems.”
Ships are not sophisticated cities, she said. They did not monitor water pollution.
“We never argued, and the court never found, that the updated types of permit limits aren’t allowed. It just wasn’t strong enough in the context of shipping,” she said.
If San Francisco should win the Supreme Court case, could that weaken the Clean Water Act?
“Definitely,” said Hammer. “It could have ramification in terms of how permits work. These types of limits that you shall not cause or contribute to a water quality violation have been included in many permits. That’s because we don’t always know what pollutants are going to be in the discharge. And sometimes they can be very harmful. And for some pollutants, it’s really hard to write number limits.”
Fighting for the ‘new normal’
In a Monday rally against the lawsuit on the steps of San Francisco City Hall, Melgar was joined by several environmental groups, including Surfrider Foundation, San Francisco Baykeeper and the Sierra Club, as well as Supervisor Dean Preston and board president Aaron Peskin.
Several speakers expressed concern that San Francisco’s reputation as a liberal defender of the environment would be harmed through association with the lawsuit.
“We are the city that stands for environmental progress,” said Melgar. “We are the city that stands for clean water, our clean air quality, our earth. That’s not who we are. That does not represent San Francisco Bay.”
Peskin pointed to the urgency of a resolution amid sea level rise and extreme weather events.
“This is the new normal. We cannot put our heads in the sand. We must advance a vision of adaptation and invest in infrastructure that preserves our clean water for our children and our children’s children,” he said.
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