San Francisco Baykeeper v. Sunnyvale

Background

San Francisco Baykeeper brought citizen suits against the Cities of Sunnyvale and Mountain View, alleging that their municipal storm sewer systems discharged excessive bacteria into certain waters during rain events, violating National Pollutant Discharge Elimination System permits under the Clean Water Act.

In earlier rulings, the court rejected the Cities’ jurisdictional challenges, found that Baykeeper adequately stated its claims, denied the Cities’ summary-judgment motion, and granted Baykeeper partial summary judgment. The court found that Baykeeper had standing to assert permit-violation claims involving the South San Francisco Bay, Stevens Creek, and Calabazas Creek; that those waters were subject to the Clean Water Act; and that the Cities violated their permits on certain days for which Baykeeper had collected water samples.

The remaining claims involved two permit provisions: Discharge Prohibition A.1, which required the Cities to effectively prohibit non-stormwater discharges into storm-drain systems and watercourses, and Receiving Water Limitation B.2, which prohibited discharges from causing or contributing to violations of applicable water-quality standards.

Motion for Reconsideration

After the Supreme Court decided City and County of San Francisco v. EPA, the Cities sought reconsideration of earlier orders granting relief to Baykeeper. The Cities argued that Prohibition A.1 and Limitation B.2 were invalid because they were “end-result” limitations—provisions that make a permittee responsible for the quality of receiving waters without specifying what the permittee must do or refrain from doing.

The court did not reach the Cities’ retroactivity argument because it first addressed whether the Cities could challenge the permit provisions’ validity in this case. California, rather than the federal Environmental Protection Agency, issued the permits. Relying on Ninth Circuit precedent, the court held that federal courts may not review the validity of state-issued permits through collateral attacks—that is, challenges raised indirectly in an enforcement action or citizen suit.

The court also rejected the Cities’ alternative arguments. It concluded that their enforceability argument was effectively another collateral attack. It declined to disregard Ninth Circuit precedent allowing citizen plaintiffs to enforce permit conditions stated in terms of water-quality standards. The court further rejected the Cities’ jurisdictional argument, explaining that the permit provisions remained in force unless and until the issuing agency rescinded them. Finally, the court found that the provisions’ use of the word “shall” made them enforceable limitations rather than aspirational goals.

Disposition

The court DENIES the Cities’ motion for reconsideration. The opinion does not decide the Cities’ retroactivity argument because the court held that the Cities could not raise their permit-validity challenge in this proceeding.