U.S. Supreme Court Rules for San Francisco in Water Quality Case

Last month, the U.S. Supreme Court ruled five to four in favor of the City in San Francisco v. EPA, holding that when the U.S. Environmental Protection Agency (EPA) issues permits under the Clean Water Act it must specify the actions permit holders need to take to avoid violating the Act’s standards. 

In response to the outcome San Francisco City Attorney David Chiu and San Francisco Public Utilities Commission (SFPUC) General Manager Dennis Herrera issued a joint statement, “The ruling makes clear that permit holders like San Francisco are responsible for what they discharge, and the EPA has the tools at its disposal to ensure water quality. But it’s not lawful to punish permit holders for things outside of their control, such as the end-result water quality of a shared body of water, where many other factors affect water quality.” 

“It seems as though the Supreme Court did little to ensure clean water going into our Bay waters, which have increasing recreational use,” said Ginny Stearns, a houseboat resident who believes Mission Creek is negatively affected when SFPUC’s opens its floodgates during heavy rains. “It is regrettable that San Francisco has chosen legal fights over increasing steps to cleaning up the wastewater.” 

Stearns hopes that environmentalists and SFPUC can reduce pollutants through proper maintenance and changes to the wastewater management system, including slowing wastewater releases before, during and after storms, allowing sediments to settle. Stearns also recommended treatments to reduce fecal bacteria contamination, and increasing the number of outflows.

Mission resident and Sierra Club San Francisco Group member Kieran Farr wants the City to separate its presently combined stormwater and wastewater systems. In the wake of the Supreme Court decision, he called for federal legislation to explicitly expand EPA’s regulatory authority.

“We know this is unlikely given the current balance of power in the U.S. House and the U.S. Senate,” said Farr. “If we think about the actions we would want the City to take if it were still held to the EPA’s previous rules, it would be reducing combined sewer outflows, improving steady state wastewater treatment infrastructure, and diverting stormwater runoff from entering the combined sewer system. All of these things are still possible for us to pursue at the local level. Myself and other members of the Sierra Club are organizing a local campaign, “Green SF Now,” to create a plan to do this,” said Farr. 

“Because the EPA is not allowed to include health-based standards when regulating water pollution, it’ll need to know everything about what might be discharged before a clean-water permit can be issued, making the permitting process delayed and incredibly expensive,” said Sanjay Narayan, chief appellate counsel of Sierra Club’s environmental law program. “The result is likely to be a new system where the public is regularly subjected to unsafe water quality.”

Peter Drekmeier, Tuolumne River Trust policy director, termed the Court’s ruling a “debacle” that taints the City’s already strained environmental reputation. 

“SFPUC has starved the Tuolumne River, where we get our Hetch Hetchy water, of instream flows, leading to a crash in the salmon population and the entire ecosystem it supports,” said Drekmeier. 

“Thanks to San Francisco and the Supreme Court, this work just became more challenging,” said Sejal Choksi-Chugh, San Francisco Baykeeper executive director. “We will continue to use whatever means we have to repel efforts in Washington D.C. and elsewhere; as well as local industries and municipalities that would pollute the Bay, threaten the health of Bay Area residents, and the survival of our wildlife.” 

EPA and the State of California are pursuing a separate lawsuit, presently in confidential mediation, against the City and County of San Francisco, alleging that stormwater discharges into the Bay during major storms violates the Clean Water Act.