The City and County of San Francisco is engaged in two legal cases related to polluting discharges into San Francisco Bay. In the first, CCSF is wrangling with the U.S. Environmental Protection Agency (EPA) at the U.S. Supreme Court. San Francisco has asked the Court to determine whether the Clean Water Act (CWA) allows EPA or an authorized state like California to impose generic prohibitions in National Pollutant Discharge Elimination System (NPDES) permits.
“The SCOTUS case is not an attempt to do away with or get out of complying with the CWA. We just want the EPA to give us clear requirements in the permits they issue,” said Jen Kwart, director of communications and media relations for the San Francisco City Attorney’s office.
The Supreme Court outcome will determine whether the CWA requires EPA to issue more specific permits. The case is set for argument before the Court on October 16. Numerous organizations have filed amicus curiae briefs in support of San Francisco’s position, including the National Association of Home Builders, the Associated General Contractors of America, and the American Road and Transportation Builders Association.
Separately, the U.S. Department of Justice, California Regional Water Quality Control Board, and San Francisco Baykeeper, an Oakland-based environmental nonprofit, filed a separate suit against the CCSF at the U.S. District Court for the Northern District of California. In the lawsuit the plaintiffs allege that the City’s stormwater discharges into the Bay during major storm events violated the CWA. There are no upcoming proceedings in the case, with the partis engaged in confidential mediation until December 31.
The Supreme Court decision is directly related to the District Court case as EPA and SF Baykeeper want to enforce the NPDES permit terms San Francisco is challenging at the Supreme Court.
“If we are correct that (the) EPA cannot impose those sorts of permit requirements, then they cannot be enforced in the District Court case,” said Kwart.
San Francisco is served by a combined stormwater and wastewater system, which worries environmental activists and Bay Area residents.
“Local agencies have a legal obligation to ensure that stormwater and combined systems like San Francisco’s are pollution-free,” said Joshua Quigley, policy manager for Save the Bay, an Oakland-based nonprofit. “When they fail to, enforcement is necessary to protect water quality in the Bay.”
Peter Drekmeier, policy director for the Tuolumne River Trust, a Sonora-based nonprofit, said the San Francisco Public Utilities Commission (SFPUC) has deferred maintenance on its water management system for decades, triggering problematic discharges.
“SFPUC now has to play catchup, but there’s a big concern over the amount of money they’re taking in to pay for projects. This is because they’re selling less water” as a result of conservation measures, said Drekmeier. “This causes SFPUC to see less money coming in, but having their fixed costs stay the same and other costs rise, due to inflation. They need to raise rates.”
Ginny Stearns, Mission Creek houseboat resident and Mission Creek Conservancy member, would like to see water discharges exit more slowly, which would give heavier material a chance to drop to the bottom of the pipes that lead to the creek.
“Then the debris from the roads as well as sewage might not have as much of a chance to get into the Creek and the Bay. Also, there are a couple of exit points for discharges that are not being used. We’re open to that,” said Stearns. “Overall, I’ve seen the water quality improve from 15 to 20 years ago.”
Peter Snider, a Mission Creek houseboat resident and Mission Creek Harbor Association steering committee member, said SFPUC discharges have been a concern for more than a decade.
“I’m adverse to…lawsuits in general. I’d much prefer some cooperative resolution. No matter what the outcome of this lawsuit (the U.S. Supreme Court case) is, I hope to see corrective measures for the discharges be integrated with the Port of San Francisco’s plan to handle sea level rise,” said Snider.
Mission Creek houseboat resident Elena Bondareva said it’s difficult to precisely determine the source of waste in Mission Creek at any given time, but especially after heavy rains. Mission Creek and adjacent paths and parks are enjoyed by many people. Not all dog owners pick up after their canines. There’s been fecal matter and refuse associated with people who stay by Mission Creek while experiencing homelessness. Still, she’s concerned about the combined system.
“In addition to exacerbating unsafe waste in the Creek, it is a waste of precious fresh water. Current regulations are not equipped to deal with this evolving problem. Regulations inherently look backward while the rains have been getting worse. We need proactive regulations that accurately anticipate the heavy rains and mitigates their impact on the community and the ecosystem,” said Bondareva.
Tom Radulovich, Mission resident and senior policy fellow for Livable City, a City-based nonprofit that advocates for improving streets and neighborhoods, would like to see greening measures and traffic calming throughout the City to reduce the amount of water discharged into the Bay.
“A lot of the conversation…is occurring behind closed doors. But this issue affects all of us living here in the City. I see this as a civic question, and not a new issue for City residents,” said Radulovich.
He added that there are steps San Francisco can take, like picking up trash, deploying rain barrels and increasing permeable areas in yards and sidewalks to reduce problems in Mission Creek.
“We should all be talking about those more, ahead of the rainy season. These are essential regardless of any lawsuit,” said Radulovich.
Kieran Farr, a Mission resident and Sierra Club San Francisco Group member, is gathering signatures for a plan he wants to put before municipal officials to separate the stormwater and wastewater systems and build greenspace. The greenspace would be designed to hold and gradually filter water until it reaches the Bay, which would require SFPUC to engage in fewer discharges.
“I don’t want to be swept up in it (the lawsuits). I don’t think it’s the right answer to the problem the City is experiencing,” said Farr. “The best we can do is advocate for immediate treatments and work at the local level to unite all City residents.”
Dr. Timur Durrani, associate chief for clinical services in the division of occupational, environmental, and climate medicine at the University of California, San Francisco’s Department of Medicine, said people who come into contact with waste in urban waterways can experience an increased risk of becoming ill. How sick they could get depends on which waterborne illness they catch, the amount and route of exposure, from a slight brush with a contaminant to direct ingestion of it.
Danny Pham 
Chaitanya Tondepu