San Francisco Baykeeper v. Sunnyvale

Background

San Francisco Baykeeper, a nonprofit public benefit corporation, sued the City of Sunnyvale under the Clean Water Act’s citizen-suit provisions. Baykeeper alleges that Sunnyvale’s municipal separate storm sewer system discharges polluted stormwater and non-stormwater, including bacteria and raw sewage, into local waterways. It claims that these discharges violate provisions of a 2015 regional stormwater permit and the Clean Water Act. Baykeeper seeks a declaration of violations, an injunction, civil penalties, and attorney fees and costs.

Baykeeper asserts two claims: (1) that Sunnyvale failed to effectively prohibit non-stormwater discharges into or from its storm sewer system, violating Discharge Prohibition A.1.; and (2) that polluted stormwater discharges adversely affect receiving waters and cause or contribute to violations of water-quality standards, violating Receiving Water Limitations B.1. and B.2.

Sunnyvale’s Motion

Sunnyvale moved under Federal Rule of Civil Procedure 12 to dismiss the complaint, or alternatively for summary judgment. It argued that the court lacked subject-matter jurisdiction because Baykeeper’s required notice of its intent to sue was deficient; that the case was moot because Sunnyvale had complied with the permit’s alternative compliance and reporting requirements; that court intervention was unnecessary because the permit already required corrective actions; and that the court should defer to the Regional Board under the primary-jurisdiction doctrine.

Notice Requirement

The court held that Baykeeper’s notice satisfied the Clean Water Act’s 60-day notice requirement. The notice identified the permit provisions allegedly violated, described the storm sewer and sewage systems, identified the pollutants and receiving waters, stated that the violations were ongoing and continuous, and attached sampling data showing alleged bacteria exceedances on six dates. The court concluded that the notice gave Sunnyvale enough information to identify and correct the alleged problems. It therefore denied Sunnyvale’s motion to dismiss for lack of subject-matter jurisdiction.

Discharge Prohibition A.1.

Sunnyvale argued that its ordinance and Illicit Connection and Illicit Discharge Program satisfied its duty to prohibit non-stormwater discharges. The court rejected that argument because Sunnyvale cited no legal authority establishing that adopting and enforcing the program automatically fulfilled the permit’s effectiveness requirement.

Sunnyvale also argued that its annual reports showed the program was effective. The court concluded that Baykeeper’s sampling data created a factual dispute about whether the program effectively prohibited the alleged discharges. Because resolving that dispute would go beyond the proper scope of a motion to dismiss, the court denied the motion to dismiss the first claim.

Receiving Water Limitations B.1. and B.2.

For B.1., Sunnyvale argued that Baykeeper had not alleged one of the five specific prohibited conditions listed in the permit. Baykeeper clarified that it alleged a violation based on substances causing harmful effects. The court found the allegations sufficient because Baykeeper alleged that Sunnyvale’s discharges exceeded bacteria standards, adversely affected beneficial uses, and posed serious risks to fisheries, wildlife habitat, and human health.

For B.2., Sunnyvale argued that the Clean Water Act required only pollution controls to the maximum extent practicable, rather than strict compliance with water-quality standards. The court rejected that interpretation. It held that the Regional Board had discretion to require stricter compliance and that the plain language of B.2. prohibited discharges causing or contributing to violations of applicable water-quality standards.

The court also held that the Basin Plan standards remained applicable because the Regional Board had not revised the permit to incorporate later state bacteria provisions. The court rejected Sunnyvale’s argument that B.2. lacked enforceable standards.

Alternative Compliance and Mootness

Sunnyvale argued that its submission of a report under permit provision C.1. made the case moot. The court disagreed. It found that the bacteria provision referenced in C.1. applied only to specified waterways, not all of the receiving waters involved in Baykeeper’s claims. The court also concluded that C.1.’s reporting and corrective-action process did not excuse liability for violations of water-quality standards. Sunnyvale’s compliance with the reporting requirement therefore did not make the claims moot, and the court denied the motion to dismiss on that ground.

Injunctive Relief

Sunnyvale argued that the permit’s corrective-action requirements made court-ordered injunctive relief unnecessary. The court rejected dismissal on that basis, explaining that whether Baykeeper was entitled to an injunction could not be assessed until the evidence was more fully developed.

Primary Jurisdiction

The court declined to apply the primary-jurisdiction doctrine, which can allow a court to pause or dismiss a case while an administrative agency resolves an issue within the agency’s special expertise. The court concluded that the case did not appear to involve an issue of first impression or an unusually complicated issue committed to the Regional Board. It noted, however, that Sunnyvale could renew its request if later agency action caused the lawsuit to significantly replace, rather than supplement, the Regional Board’s work.

Disposition

The court denied Sunnyvale’s motion to dismiss. The order did not finally decide whether Sunnyvale violated the Clean Water Act or the stormwater permit.