San Francisco Baykeeper v. Sunnyvale

Background

San Francisco Baykeeper brought a citizen-enforcement action under the Clean Water Act against the City of Sunnyvale and the City of Mountain View. Baykeeper alleged that bacteria-contaminated discharges from the Cities’ municipal storm sewer systems violated two provisions of a 2015 municipal stormwater permit: Discharge Prohibition A.1 and Receiving Water Limitation B.2. The court had previously granted Baykeeper’s motion for partial summary judgment and found that the Cities violated Receiving Water Limitation B.2. It also found that Baykeeper had adequately pleaded an ongoing violation for jurisdictional purposes.

While the case was pending, the San Francisco Regional Water Quality Control Board issued a new permit effective July 1, 2022. The new permit rescinded the 2015 permit except for enforcement purposes. Its provisions concerning Discharge Prohibition A.1 and Receiving Water Limitation B.2 were identical to those in the 2015 permit. The new permit also included provision C.14.a, which identified the Cities and required alternative compliance actions, and provision C.1, which stated that compliance with certain C.14 requirements would constitute compliance with Receiving Water Limitations B.1 and B.2 during the permit’s term.

The Cities’ arguments

The Cities moved to dismiss Baykeeper’s Second Amended Complaint. They argued that the 2022 permit created a safe harbor from liability for the alleged 2015 permit violations if the Cities followed the alternative compliance actions. Based on that argument, they contended that the court no longer had subject-matter jurisdiction, that Baykeeper’s claims were moot, and that the court should dismiss under the primary-jurisdiction doctrine. That doctrine allows a court to stay or dismiss a case without prejudice when an issue should first be resolved by an administrative agency with relevant regulatory expertise.

Jurisdiction

The court denied the jurisdictional argument. It explained that federal jurisdiction in a Clean Water Act citizen suit is established when the plaintiff makes a good-faith allegation of a continuous or intermittent violation. The court had already found that Baykeeper pleaded sufficient facts showing an ongoing violation when it filed the original complaint.

The court held that the 2022 permit was a post-filing development that did not eliminate jurisdiction. It also rejected the Cities’ argument that the filing date of the Second Amended Complaint should control. The amended complaint related back to the original complaint because it did not add new claims or legal theories. Instead, it removed one cause of action and added factual allegations concerning additional sources of bacteria. The court concluded that the amended allegations involved the same core facts and would likely be proved with the same type of evidence as the original allegations.

Mootness

The court also rejected the Cities’ mootness argument. A case is moot when the court cannot provide effective relief. The court explained that defendants asserting mootness bear a heavy burden, and in a case seeking civil penalties they must show that it is absolutely clear the alleged conduct could not reasonably be expected to recur.

The court found that the Cities had not met that burden. First, even assuming that the 2022 permit contained a safe harbor, the court found that the Cities had not shown that C.1 applied to Discharge Prohibition A.1. The text of C.1 referred to compliance with Receiving Water Limitations B.1 and B.2, but did not expressly include Discharge Prohibition A.1.

Second, the court noted that the 2022 permit required the Cities to take affirmative actions under C.14.a. If the Cities failed to follow those plans, they could again fall out of compliance with Receiving Water Limitation B.2. The court said Baykeeper was not required to prove that the Cities would fail to comply; the burden was on the Cities to show that recurrence was impossible or could not reasonably be expected.

Finally, the court relied on its earlier conclusions that the 2015 permit’s C.1 plan did not provide a safe harbor from liability for violations of water-quality standards. The court found no textual support for the Cities’ position that compliance with some permit provisions protected them from liability for noncompliance with others.

Primary jurisdiction

The court declined to dismiss under the primary-jurisdiction doctrine. It found that issuing the 2022 permit did not significantly change the circumstances or threaten to replace the Regional Board’s regulatory role. The 2022 permit preserved the 2015 permit for enforcement purposes, did not change the relevant language of Discharge Prohibition A.1 or Receiving Water Limitation B.2, and did not revoke the court’s jurisdiction or moot the claims. The court also concluded that the case did not involve an issue of first impression or an unusually complicated issue committed to the agency.

Disposition

The court denied the Cities’ motion to dismiss.