City and County of San Francisco v. U.s. Environmental Protection Agency

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY AND COUNTY OF SAN
FRANCISCO,
Petitioner,
v.
U.S. ENVIRONMENTAL
PROTECTION AGENCY,
Respondent.
No. 21-70282
Environmental
Protection Agency
OPINION
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted March 17, 2022
San Francisco, California
Filed July 31, 2023
Before: William A. Fletcher, Ronald M. Gould, and Daniel
P. Collins, Circuit Judges.
Opinion by Judge W. Fletcher;
Dissent by Judge Collins

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2 CITY & COUNTY OF SAN FRANCISCO V. USEPA
SUMMARY*
National Pollutant Discharge Elimination System
Permits
The panel denied the City and County of San Francisco’s
petition for review of a final order of the U.S. Environmental
Protection Agency (“EPA”) denying review of San
Francisco’s federal National Pollutant Discharge
Elimination System (“NPDES”) permit for its Oceanside
combined sewer system and wastewater treatment facility.
The NPDES permit, which was issued pursuant to the
Clean Water Act of 1972 (“CWA”), 33 U.S.C. §§ 1251–
1387, allows San Francisco to discharge from its wastewater
system into the Pacific Ocean, and includes (1) two general
narrative prohibitions on discharges that cause or contribute
to violations of applicable water quality standards, and (2) a
requirement that San Francisco update its long-term control
plan for its combined sewer overflows.
The panel held that the EPA had authority under the
CWA to include the two general narrative prohibitions.
Noting that Supreme Court precedent, this Circuit’s prior
cases, and prior Environmental Appeals Board decisions
support the legality and confirm the enforceability of general
narrative prohibitions in permits issued under the CWA, the
panel held that the two narrative provisions were consistent
with the CWA and its implementing regulations. The panel
further held that the EPA was not required to follow the
procedures set forth in 40 C.F.R. § 122.44(d)(1)(i)-(vii) for
* This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 3
deriving pollutant-specific effluent limitations in imposing
the general narrative provisions, and that the EPA’s decision
to impose the general narrative provisions was rationally
connected to evidence in the record indicating that a
“backstop” to the more specific provisions would be useful
in protecting beneficial uses.
The panel next held that the EPA had authority under its
Combined Sewer Overflow Control Policy to require San
Francisco to update its long-term control plan for its
combined sewer overflows and reevaluate alternatives for its
combined sewer overflow discharges to sensitive areas. The
EPA’s ability to require San Francisco to update its long-
term control plan was not conditioned on a finding that water
quality standards were not being met and was rationally
supported by evidence in the record.
Dissenting, Judge Collins would grant San Francisco’s
petition for review, vacate the challenged permit conditions,
and remand the case to the agency for further
consideration. First, the two general narrative limitations
were inconsistent with the text of the CWA, and, by
including them, the EPA fundamentally abdicated the
regulatory task assigned to it under the CWA. Second,
because no determination was made that San Francisco’s
Oceanside System had caused the violation of any applicable
water control standards, the EPA lacked authority under the
Combined Sewer Overflow Control Policy to impose a
condition requiring San Francisco to submit a revised long-
term control plan.

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4 CITY & COUNTY OF SAN FRANCISCO V. USEPA
COUNSEL
Andrew C. Silton (argued) and Richard S. Davis, Beveridge
& Diamond PC, Washington, D.C.; Estie M. Kus and John
Roddy, Deputy City Attorneys; Sheryl L. Bregman, Utilities
General Counsel; Yvonne R. Meré, Chief Deputy City
Attorney; David Chiu, City Attorney; San Francisco City
Attorney’s Office; City and County of San Francisco; San
Francisco, California; for Petitioner.
Elisabeth Carter (argued), Attorney; Todd Kim, Assistant
Attorney General; Environment and Natural Resources
Division, United States Department of Justice; Washington,
D.C.; Peter Z. Ford, Pooja Parikh, and Marcela Von Vacano,
Attorneys; United States Environmental Protection Agency;
Washington, D.C.; for Respondent.
David Chung and Elizabeth B. Dawson, Crowell & Moring
LLP, Washington, D.C.; Hilary Meltzer, Assistant
Corporation Counsel; Georgia M. Pestana, Corporation
Counsel of the City of New York; New York City Law
Department; New York, New York; Roberta L. Larson,
Somach Simmons & Dunn, Sacramento, California; for
Amici Curiae National Association of Clean Water
Agencies, California Association of Sanitation Agencies,
Louisville/ Jefferson County Metropolitan Sewer District,
and City of New York.
Marc N. Melnick and Daniel S. Harris, Deputy Attorneys
General; Annadel A. Almendras and Myung J. Park,
Supervising Deputy Attorneys General; Robert W. Byrne,
Senior Assistant Attorney General; Office of the California
Attorney General; Oakland, California; for Amicus Curiae
California Regional Water Quality Control Board, San
Francisco Bay Region.

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 5
James N. Saul, Earthrise Law Center at Lewis & Clark Law
School, Portland, Oregon, for Amici Curiae Law Professors.
OPINION
W. FLETCHER, Circuit Judge:
The City and County of San Francisco (“San Francisco”)
petitions for review of a final order of the U.S.
Environmental Protection Agency (“EPA”) denying review
of San Francisco’s federal National Pollutant Discharge
Elimination System (“NPDES”) permit for its Oceanside
combined sewer system and wastewater treatment facility
(“wastewater system”). This NPDES permit, issued
pursuant to the Clean Water Act of 1972 (“CWA”), 33
U.S.C. §§ 1251–1387, allows San Francisco to discharge
from its wastewater system into the Pacific Ocean. San
Francisco contends that EPA acted arbitrarily and
capriciously, and contrary to the CWA, by including in the
final permit: (1) two general narrative prohibitions on
discharges that cause or contribute to violations of applicable
standards for water quality, and (2) a requirement that San
Francisco update its long-term control plan (“LTCP”) for its
combined sewer overflows (“CSOs”). We hold that the
CWA authorizes EPA to include in the Oceanside NPDES
permit the challenged provisions, and that EPA’s decision to
do so was rationally connected to evidence in the
administrative record. We therefore deny San Francisco’s
petition for review.

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6 CITY & COUNTY OF SAN FRANCISCO V. USEPA
We use a number of acronyms and short-form references
in this opinion. For the convenience of the reader, we list
them here.
Acronyms:
• APA: Administrative Procedure Act
• CSD: Combined sewer discharge
• CSO: Combined sewer overflow
• CWA: Clean Water Act
• EAB: Environmental Appeals Board
• EPA: Environmental Protection Agency
• LTCP: Long-term control plan
• NPDES: National Pollutant Discharge Elimination
System
• NRDC: Natural Resources Defense Council
• WQBEL: Water quality-based effluent limitation
• WQS: Water quality standards
Short-form references:
• 1979 Ocean Plan Exception: California State Water
Board Order No. 79-16
• Basin Plan: Water Quality Control Plan for the San
Francisco Bay Basin
• CSO Control Policy or Policy: Combined Sewer
Overflow Control Policy
• CSO Guidance: Combined Sewer Overflows: Guidance
for Permit Writers
• LTCP Synthesis: San Francisco Wastewater Long Term
Control Plan Synthesis
• Ocean Plan: Water Quality Control Plan for Ocean
Waters of California
• Regional Water Board: California Regional Water
Quality Control Board for the San Francisco Bay Region

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 7
• Strategy: National Combined Sewer Overflow Control
Strategy
• Wastewater system: combined sewer system and
wastewater treatment facility
I. Background
A. Regulation of Combined Sewer Systems
Most cities in the United States, including San Francisco,
operate combined sewer systems. See National Combined
Sewer Overflow Control Strategy, 54 Fed. Reg. 37370,
38371 (Sept. 8, 1989). Combined sewer systems are
wastewater collection systems that convey both sewage and
storm water to a treatment plant through a single set of pipes.
40 C.F.R. § 122.2. During heavy rain or snow, combined
sewer overflows (“CSOs”) can occur when water in the
system exceeds the capacity of the pipes or the treatment
plant, leading to discharges of pollutants into surface waters.
Combined Sewer Overflow (CSO) Control Policy, 59 Fed.
Reg. 18688, 18689 (Apr. 19, 1994). CSOs are “mixtures of
domestic sewage, industrial and commercial wastewaters,
and storm water runoff.” Id. They “often contain high levels
of suspended solids, pathogenic microorganisms, toxic
pollutants, floatables, . . . and other pollutants.” Id.
Under the CWA, an NPDES permit is required for the
discharge of “any pollutant by any person” from any “point
source” into the navigable waters of the United States. 33
U.S.C. §§ 1311(a)–(b), 1342(a); 40 C.F.R. § 122.1(b)(1).
Municipal CSOs are discharges from “point sources” under
the CWA and therefore require NPDES permits. National
Combined Sewer Overflow Control Strategy, 54 Fed. Reg.
at 37371; see also 33 U.S.C § 1342(q) (identifying CSOs as
discharges subject to the NPDES permitting requirements).

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8 CITY & COUNTY OF SAN FRANCISCO V. USEPA
1. NPDES Permitting System
NPDES permits are issued by both EPA and state
authorities. Under the CWA, EPA may authorize States to
issue NPDES permits for discharges into waters within the
State’s jurisdiction. 33 U.S.C. § 1342(b)–(c). However,
EPA retains authority to issue permits for discharges into
ocean waters more than three miles from the shore. See id.
§ 1362(8) (defining the State’s territorial seas as extending
three miles from the coast). When both state and federal
permits are needed for a particular treatment facility, the
permitting processes may be consolidated, and permits may
be issued jointly or separately. 40 C.F.R. § 124.4(c).
To issue an NPDES permit for discharges into ocean
waters, state and federal authorities must establish that the
discharge will satisfy (1) water quality standards; (2) effluent
limitations—i.e., restrictions on how much pollutant any
point source may discharge; and (3) antidegradation criteria.
33 U.S.C. § 1342(a), 1343; see also id. §§ 1311 (effluent
limitations), 1313 (water quality standards and
implementation plans), 1312 (water-quality related effluent
limitations), 1317 (effluent limitations for toxic pollutants);
40 C.F.R. § 122.44. NPDES permits also include
monitoring and reporting requirements, compliance
schedules, and management practices. See, e.g., 40 C.F.R.
§§ 122.41, 122.44.
Water quality standards (“WQS”) specify (1) a body of
water’s “designated use” (e.g., recreation, water supply, or
propagation of fish) and (2) “water quality criteria” (i.e.,
numeric or narrative benchmarks to protect a designated
use). Id. §§ 130.2(d), 131.3(b), 131.10(a). State-defined
WQS are used as the basis for specific effluent limitations in
NPDES permits. 33 U.S.C. §§ 1311(b)(1)(C), 1370; 40

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 9
C.F.R. §§ 122.4(d), 122.44(d)(1), 131.4(a). EPA reviews
state-adopted WQS and is authorized to approve or
disapprove them in accordance with the CWA’s
requirements. 40 C.F.R. § 131.5(a).
Effluent limitations are defined as “any restriction
imposed . . . on quantities, discharge rates, and
concentrations of pollutants which are discharged from point
sources into waters of the United States.” Id. § 122.2
(internal quotation marks omitted). Effluent limitations are
typically expressed numerically, in the maximum mass of a
pollutant that may be discharged. See id. § 122.45(f).
Technology-based effluent limitations establish discharge
standards based on levels of effluent quality achievable by
certain pollution treatment technologies for different
categories of pollutants. Id. §§ 122.44(a)(1), 125.3(a).
Water quality-based effluent limitations (“WQBELs”)
establish more stringent discharge requirements when
necessary to meet applicable WQS. 33 U.S.C.
§ 1311(b)(1)(C); 40 C.F.R. § 122.44(d). Permitting
agencies may impose “best management practices,” or
specific operational requirements or prohibitions, rather than
numeric limitations, if numeric effluent limitations are not
feasible. 40 C.F.R. §§ 122.2, 122.44(k)(3).
2. NPDES Permits for CSOs
In 1989, EPA issued the National Combined Sewer
Overflow Control Strategy (“the Strategy”), which sets forth
its NPDES permitting strategy to control CSOs. By
addressing discharges from combined sewer systems, the
Strategy “complement[ed]” the preexisting regulatory
control programs for sanitary sewer systems and separate
storm sewer systems. National Combined Sewer Overflow
Control Strategy, 54 Fed. Reg. at 37371. Recognizing that

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10 CITY & COUNTY OF SAN FRANCISCO V. USEPA
CSOs “have been shown to have severe adverse impacts on
water quality, aquatic biota, and human health,” EPA sought
to establish a uniform nationwide permitting approach to
control these discharges. Id. The Strategy provided that
under the CWA, “[a]ll CSO discharges must be brought into
compliance with technology-based requirements and State
water quality-based requirements” using “a combination of
CSO control measures.” Id. According to the Strategy, a
municipality’s publicly owned treatment works (water
treatment plant) “is responsible for planning and
coordinating a system-wide approach” to CSO control. Id.
at 37372. The Strategy specified that CSO point sources
“discharging without a permit are unlawful and must be
permitted or eliminated.” Id. at 37371.
In 1994, EPA issued the Combined Sewer Overflow
Control Policy (“CSO Control Policy” or “Policy”) as part
of its national strategy for CSO control. Combined Sewer
Overflow Control Policy, 59 Fed. Reg. at 18688–89. In
2000, Congress made the CSO Control Policy legally
binding when it enacted the Wet Weather Water Quality Act.
Pub. L. No. 106-554, § 112, 114 Stat. 2763, 2763A-224 to
2763A-225 (2000) (codified at 33 U.S.C. § 1342(q)(1)). The
CSO Control Policy prohibits all CSOs that occur in dry
weather. Combined Sewer Overflow Control Policy, 59
Fed. Reg. at 18689. The Policy requires municipalities with
combined sewer systems to implement extensive control
measures (the “Nine Minimum Controls”) and to develop
and implement a Long-Term Control Plan (“LTCP”) to
protect water quality during wet weather. Id. at 18691.
Under the CSO Control Policy, required minimum
control measures include elimination of all dry-weather
CSOs, control of all “solid and floatable materials in CSOs,”
maximization of storage and flow to the treatment plant

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 11
during wet-weather events, public notification of CSO
occurrences, and ongoing monitoring of CSOs and efficacy
of the control measures. Id. A municipality’s LTCP must
address the following “minimum elements”: (1)
characterization, modeling, and monitoring of the combined
sewer system and CSOs, including evaluation of rainfall
records; (2) a process for public participation in LTCP
development; (3) special prioritization of control of CSOs
into “sensitive areas,” such as waters used for drinking or
recreation; (4) evaluation of alternative control measures to
achieve different benchmarks, such as zero versus one to
three CSOs per year; (5) “cost/performance” analysis of the
control measure alternatives; (6) an operational plan to
implement the selected CSO controls; (7) a plan to maximize
wet-weather water treatment capacity at existing treatment
plants; (8) an implementation schedule, including
construction phasing; and (9) a post-construction
compliance monitoring program. Id. at 18691–94.
A municipality’s LTCP must adopt one of two
approaches to demonstrate that its control program satisfies
the requirements of the CWA: a “Presumption Approach” or
a “Demonstration Approach.” Id. at 18692–93. Under the
Presumption Approach, a municipality’s selected CSO
control program is presumed to meet the water quality-based
requirements of the CWA if certain criteria are met. Those
criteria include: no more than an average of four CSOs per
year; the elimination or treatment of at least 85% of the
volume of combined sewage collected during wet-weather
events on an annual basis; and equivalent-to-primary
treatment of CSOs (including removal of solids and
floatables). Id. Under the Demonstration Approach, a
municipality must demonstrate that its selected CSO
controls will be adequate to meet WQS and protected

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12 CITY & COUNTY OF SAN FRANCISCO V. USEPA
designated uses of the receiving waters so as to satisfy the
requirements of the CWA. Id. at 18693. When “natural
background conditions or pollution sources other than
CSOs” prevent WQS from being met, the LTCP must
specify “a total maximum daily load” for the receiving
waters. Id.
The CSO Control Policy creates a two-phase permitting
process for municipalities with combined sewer systems.
Phase I NPDES permits require the municipality to develop
and implement the Nine Minimum Controls and to develop
a LTCP. Id. at 18696. Phase II permits apply to the
implementation of approved CSO controls, LTCPs, and
post-construction monitoring. Id. Phase II permits must
include provisions requiring the municipality to engage in
ongoing modification and reassessment of their CSO control
measures. Specifically, Phase II permits must include (1)
“[a] requirement to reassess overflows to sensitive areas . . .
based on consideration of new or improved techniques to
eliminate or relocate overflows or changed circumstances
that influence economic achievability” and (2) “[a] reopener
clause authorizing the NPDES authority to reopen and
modify the permit upon determination that the CSO controls
fail to meet WQS or protect designated uses.” Id.
EPA subsequently issued a manual to aid NPDES
permitting authorities in implementing the CSO Control
Policy. U.S. Envt’l Prot. Agency, No. 832-B-95-008,
Combined Sewer Overflows: Guidance for Permit Writers
(1995) (“CSO Guidance”). The CSO Guidance notes that
“[a]lthough the two-phased [NPDES permitting] approach
may be appropriate if a permittee has not implemented any
CSO controls, in many instances, the separation between
permit phases may not be distinct and permits may contain
both Phase I and Phase II elements.” Id. at 2-2. For example,

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 13
under the CSO Control Policy, a Phase II permittee may be
required to submit a revised LTCP containing “additional
controls” if the NPDES authority determines WQS are not
being met or designated uses are not being protected. 59
Fed. Reg. at 18696. After a municipality has finished
construction of all the CSO control measures required in a
Phase II permit, it may be issued a “post-Phase II permit,”
which includes post-construction compliance monitoring
program requirements to provide ongoing assessment to
determine whether the selected controls “are achieving
compliance with applicable State water quality standards.”
CSO Guidance, supra, at 5-2.
The CSO Control Policy includes exemptions for
communities that, like San Francisco, developed and began
implementing a CSO control plan prior to adoption of the
Policy in 1994. 59 Fed. Reg. at 18690. Under Section I.C.1
of the Policy, communities that had “completed or
substantially completed construction” of their CSO controls
are exempt from “the initial planning and construction
provisions” of the Policy, but not from the “operational plan
and post-construction monitoring provisions.” Id. The
Section I.C.1 exemption further provides: “If, after
monitoring, it is determined that WQS are not being attained,
the permittee should be required to submit a revised CSO
control plan that, once implemented, will attain WQS.” Id.
Under Section I.C.2, municipalities that had “substantially
developed” their CSO control program at the time the Policy
issued are to “complete those facilities without further
planning activities,” but they are not exempt from the post-
construction monitoring provisions of the policy. Id.
Section I.C.3 of the Policy specifies that “[i]n the case of any
ongoing or substantially completed CSO control effort, the
NPDES permit . . . should be revised to include all

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14 CITY & COUNTY OF SAN FRANCISCO V. USEPA
appropriate permit requirements consistent with Section
IV.B. of this Policy.” Id. Section IV.B.2.e of the Policy sets
forth the requirement that Phase II permits include
provisions for the ongoing reassessment of overflows to
sensitive areas. Id. at 18696.
B. San Francisco’s Oceanside Wastewater System
San Francisco has two combined sewer systems and
treatment facilities—“Bayside” and “Oceanside.” The
Bayside wastewater system discharges into the San
Francisco Bay from the Eastern side of the city and is
authorized under an NPDES permit issued solely by the
California Regional Water Quality Control Board for the San
Francisco Bay Region (“Regional Water Board”). That
permit is not before us. The permit before us is San
Francisco’s NPDES permit for its Oceanside wastewater
system, which discharges from the Western side of the city
into the Pacific Ocean at points under state and federal
jurisdiction and is thus authorized jointly by the Regional
Water Board and the U.S. EPA.
San Francisco’s Oceanside system includes the
Oceanside Water Pollution Control Plant, 250 miles of
combined sewers, and the Westside Recycled Water Project.
Oceanside serves approximately 250,000 residents. San
Francisco is authorized to discharge from Oceanside into the
Pacific Ocean at eight discharge points. The primary
discharge point, Discharge Point No. 001, the “Southwest
Ocean Outfall,” is more than three miles from the shore, in
United States waters. The remaining seven discharge points,
CSD-001 through CSD-007, known as “combined sewer
discharges” or “CSDs,” are located close to the shore, in
State waters. CSD-001 through CSD-007 are used when

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 15
CSOs exceed the capacity of Discharge Point No. 001 during
wet weather.
Under normal conditions, water in the Oceanside system
receives both primary and secondary treatment prior to
discharge. During heavy rains, however, combined waste
and storm water can exceed the system’s total 65 million
gallons per day capacity and can be discharged prior to
receiving primary or secondary treatment at the Oceanside
plant. In such cases, wastewater receives only “equivalent-
to-primary treatment,” which includes “skimming of
floatable solids,” prior to discharge. Four of the seven
Oceanside CSD outfalls are connected to transport and
storage structures that facilitate solid waste removal;
however, three outfalls are not so connected.
1. History of San Francisco’s CSO Control
San Francisco started work on its CSO control plan in
the late 1960s, before the passage of the CWA in 1972. In
1967, San Francisco was one of the first municipalities in the
nation to “characterize” its CSOs and to recommend
improvements in treatment. San Francisco developed a
Master Plan for its wastewater management in 1971, which
included automated monitoring of rainfall and sewer levels,
creating a computational model of the sewer system, and
conducting studies to assess water quality. The Master Plan
also proposed a set of controls to reduce the city’s annual
CSO frequency from eighty-two to eight.
After the CWA was enacted, San Francisco modified its
Master Plan in order to become eligible for federal
construction grants. The 1974 revised Master Plan was
accompanied by an Environmental Impact Report and
Environmental Impact Statement prepared by EPA and San
Francisco that described the environmental impacts of the

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16 CITY & COUNTY OF SAN FRANCISCO V. USEPA
alternatives for wastewater disposal, including CSOs. In
1976, the Regional Water Board issued a series of permits
and orders requiring the city to construct facilities to achieve
its selected wet-weather controls.
The California State Water Board adopted the Water
Quality Control Plan for Ocean Waters of California
(“Ocean Plan”) in 1972, and has amended it several times,
most recently in 2019. The Ocean Plan establishes WQS and
effluent limitations for the Pacific Ocean within California’s
jurisdiction in order to protect the “beneficial uses” of the
waters. These beneficial uses include industrial water
supply, recreation, fishing, and marine habitat. The Ocean
Plan’s standards, along with the Water Quality Control Plan
for the San Francisco Bay Basin (“Basin Plan”), are the
applicable state WQS for San Francisco’s discharges into the
Pacific Ocean under the CWA. See 33 U.S.C.
§§ 1311(b)(1)(C), 1370; 40 C.F.R. §§ 122.4(d),
122.44(d)(1), 131.4(a).
In 1979, California State Water Board Order No. 79-16
(“1979 Ocean Plan Exception”) gave San Francisco a limited
exception to the Ocean Plan for its wet-weather CSOs. The
State Water Board recognized that San Francisco’s
“continued use of the wet weather diversion structures”
would violate the Ocean Plan’s water quality objectives,
general management requirements, effluent quality
requirements, and discharge prohibitions. The 1979 Ocean
Plan Exception exempts San Francisco from compliance
with the Ocean Plan during wet weather, allowing an
average of eight CSO discharges per year. It requires that
San Francisco post warning signs on all recreational beaches
affected by CSOs and in all areas where shellfish is
harvested during periods when the bacteriological standards
of the Ocean Plan are not met. The 1979 Ocean Plan

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 17
Exception left the door open for the Regional Water Board
to modify the terms of the exception: “[I]f the Regional
Board finds that changes in location, intensity or importance
of affected beneficial uses . . . have occurred, it may require
the construction of additional facilities or modification of the
operation of existing facilities.” EPA approved the
exception in 1979 and the exception was continued in the
last state Ocean Plan in 2019.
In reliance on the 1979 Ocean Plan Exception permitting
its wet-weather sewage discharges into the Pacific Ocean,
San Francisco built the Oceanside CSD transport and storage
structures and other CSO controls in the early 1980s. San
Francisco completed construction in accordance with its
city-wide Master Plan, including the Oceanside facilities, in
1997 at a cost of $1.4 billion. From 1997–2018, Oceanside
averaged fewer than its authorized eight CSOs per year from
each discharge point.
2. Prior Oceanside NPDES Permits
In 1997, EPA and the Regional Water Board issued San
Francisco its first NPDES permit for Oceanside. The 1997
permit stated that because San Francisco’s construction
projects to control CSOs were “substantially complete,” it
was exempt from the “planning and construction
requirements” of the Policy. The permitting authorities
determined that San Francisco’s CSO control program
adhered to the CSO Control Policy through the city’s: (1)
implementation of the Nine Minimum Controls; (2)
substantial completion of control program construction such
that a new long-term control plan (“LTCP”) was not
necessary under Section I.C of the CSO Control Policy; (3)
compliance with the CSO Control Policy’s “Presumption’
Approach” for ensuring water quality during wet weather;

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18 CITY & COUNTY OF SAN FRANCISCO V. USEPA
(4) appropriate consideration of “sensitive areas”; and (5)
operation of the Oceanside Water Pollution Control Plant at
maximum capacity during wet weather. The 2003
Oceanside NPDES permit reflected a similar finding that
San Francisco’s LTCP complied with the “Presumption
Approach” outlined in the CSO Control Policy, and it
ordered continued implementation of the city’s LTCP. The
2009 Oceanside NPDES permit, the last permit issued by the
EPA and the Regional Water Board prior to the challenged
permit, reflected the agencies’ determination that San
Francisco’s CSO control program “long term plan” was
“consistent” with the national CSO Control Policy’s LTCP
requirements. The 2009 permit expired in 2014, but because
San Francisco “timely submitted a permit application,” the
2009 permit continued in effect until issuance of a new
permit.
In 2011, San Francisco launched a Sewer System
Improvement Program, a 20-year, nearly $7 billion
investment initiative to enhance the reliability and
performance of its wastewater system. This program
included major capital improvements to the Oceanside
facilities, including “the construction of the Westside
Recycle Water Project, upgrades to the sludge handling
facilities at the Oceanside Water Pollution Control Plant, and
upgrades to the Westside Pump Station.” As part of the
improvement program, San Francisco also conducted
studies, including cost-benefit analyses, evaluating the
feasibility of further reducing CSO discharges to public
beaches.
As presently constituted, San Francisco’s LTCP is not a
single document. Rather, it is a collection of twenty-three
documents. In 2018, San Francisco prepared a summary of
these documents in San Francisco Wastewater Long Term

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 19
Control Plan Synthesis (“LTCP Synthesis”). San Francisco
submitted the LTCP Synthesis to the Regional Water Board
as part of the NPDES permitting process for its Bayside
facilities. Excluding two 1994 documents that were
applications for grandfathering status as part of San
Francisco’s 1994 NPDES application for Bayside, the LTCP
includes twenty-one separate planning documents, with
dates ranging between 1967 and 1991. San Francisco
explained in its introduction to the LTCP Synthesis that its
“process of planning for, designing, and constructing
projects to minimize and control wet weather discharge was
iterative and extended for nearly two decades.” Therefore,
according to San Francisco, “no single report describes the
analyses and assumptions underlying the construction of the
City’s current facilities.”
3. Challenged NPDES Permit
EPA and the Regional Water Board reissued San
Francisco’s Oceanside NPDES permit on December 10,
2019. The permit sets forth, inter alia, specific dry-weather
technology and water quality-based effluent limitations
(“WQBELs”) for Oceanside. The permit specifies that
“[d]uring wet weather, the Discharger shall comply with the
narrative water quality-based effluent limitations contained
in Provision VI.C.5.c (Long-Term Control Plan).”
San Francisco petitions for review of two sets of
provisions included in its 2019 Oceanside NPDES permit:
(1) two general narrative prohibitions against violating
applicable WQS for receiving waters (Section V and
Attachment G; Section I.I.1); and (2) a requirement that San
Francisco update its LTCP (Section VI.C.5.D).

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20 CITY & COUNTY OF SAN FRANCISCO V. USEPA
First, the narrative prohibition in Section V provides:
Discharge shall not cause or contribute to a
violation of any applicable water quality
standard (with the exception set forth in [the
1979 Ocean Plan Exception]) for receiving
waters adopted by the Regional Water Board,
State Water Resources Control Board (State
Water Board), or U.S. EPA as required by the
CWA and regulations adopted thereunder. If
more stringent water quality standards are
promulgated or approved pursuant to CWA
section 303, or amendments thereto, the
Regional Water Board and U.S. EPA may
revise or modify this Order in accordance
with the more stringent standards.
The narrative prohibition in Attachment G titled, “Regional
Standard Provisions, and Monitoring and Reporting
Requirements,” provides: “Neither the treatment nor the
discharge of pollutants shall create pollution, contamination,
or nuisance as defined by California Water Code section
13050.”
Second, for the first time since the 1990s, San Francisco
is required to update its LTCP. Table 7 of the permit lists
five major tasks that San Francisco must undertake to
comply with this requirement: (1) Post-Construction
Characterization, Monitoring, and Modeling of Combined
Sewer System; (2) Public Participation; (3) Consideration of
Sensitive Areas; (4) Operational Plan; (5) Post-Construction
Compliance Monitoring Program.

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 21
C. Agency Proceedings
1. Early Drafts of the Oceanside NPDES Permit
EPA and the Regional Water Board shared an early draft
of the challenged NPDES permit with San Francisco in 2014
and received comments from San Francisco in January 2015.
Both of the challenged general narrative prohibitions were
present in the initial draft, though in slightly different form
than in the final permit. Notably, the draft Section V
limitations on receiving waters included, in addition to the
general narrative prohibition, more detailed limitations than
in the final permit. San Francisco suggested revising the
Section V narrative prohibition so that it was limited to “dry-
weather” discharges from Discharge Point No. 001; the city
did not comment on the Attachment G narrative prohibition.
The initial draft text regarding San Francisco’s “Long-Term
Control Plan Re-Evaluation” also differed from the LTCP
required in the final permit. Notably, the initial draft permit
conditioned the requirement that the LTCP be updated on the
issuance of a prior determination by the permitting agencies
that San Francisco’s discharges had violated applicable
WQS.
In February 2016, EPA requested more information from
San Francisco about its CSOs “[f]ollowing reports that raw
sewage mixed with stormwater was overflowing . . . into
streets, sidewalks, residences and businesses.” EPA alleged
that San Francisco had failed to include notice of several
“widely reported” December 2014 “excursions” in its annual
report to the Regional Water Board. (EPA defined
“excursion” as “the exit of raw sewage or raw sewage mixed
with stormwater from the collection system.”) In November
2017, the Regional Water Board requested additional

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22 CITY & COUNTY OF SAN FRANCISCO V. USEPA
monitoring data in order to better understand the city’s
compliance with wet- and dry-weather discharge limitations.
In September 2018, after San Francisco submitted its
LTCP Synthesis as part of the Bayside NPDES permitting
process, the Regional Water Board found that the document
did not satisfy the minimum required elements of an LTCP
under its permit or under the CSO Control Policy.
Specifically, the Regional Water Board found that the LTCP
Synthesis failed to: (1) “reflect current circumstances,”
because it did not incorporate the findings of several of the
city’s own sewer system and CSO field studies and planning
documents from 2013, 2014, and 2015; (2) “set forth any
new operational requirements” “to optimize system
operations so as to maximize pollutant removal during wet
weather and minimize combined sewer discharges”; (3) “set
forth additional measures, to the extent technically and
economically feasible, to maximize pollutant removal and
minimize combined sewer discharges”; (4) “develop or
propose any metrics to evaluate the performance of its wet
weather disinfection systems” for its discharge points; and
(5) “propose a plan for post-construction compliance
monitoring of all wet weather discharges” consistent with
the CSO Control Policy.
San Francisco responded by acknowledging the
Regional Water Board’s concerns about its LTCP. It
recognized that the Regional Water Board was likely to
include new LTCP requirements in the soon-to-be reissued
Oceanside NPDES permit. San Francisco explained that, for
that reason, it was “particularly interested” in reaching a
mutual understanding with the Regional Water Board about
the “LTCP-related permit terms” so as to “avoid[] future
miscommunications.”

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 23
In October 2018, EPA and the Regional Water Board
shared another draft permit with San Francisco. The
narrative provisions were unchanged from the initial draft.
San Francisco again requested that the Section V prohibition
be limited to dry-weather discharges from Discharge Point
No. 001, and did not comment on the general provision in
Attachment G. However, the October 2018 draft included a
revised “LTCP Update” provision, detailing the major tasks
San Francisco would need to perform to update its LTCP.
This revised draft also made the LTCP update
nonconditional. In response, San Francisco commented that
the entire LTCP Update provision “[r]equires further
discussion.” The draft permit was revised further, and San
Francisco continued to suggest major changes to the draft
regarding the proposed narrative prohibition in Section V
and the LTCP Update provision. Representatives of San
Francisco met with representatives of both agencies nine
times between October 2018 and September 2019.
2. Public Notice and Comment
In April 2019, EPA and the Regional Water Board
published a draft Oceanside NPDES permit and solicited
public comments. The published draft permit included the
general narrative provisions of Section V, Attachment G,
and the LTCP update requirement, that are largely consistent
with their final form. The only material difference in the
final draft was that the timeline for San Francisco’s
compliance with the LTCP update requirement was
extended by up to two years.
On April 15, 2019, EPA issued a memorandum detailing
its legal and factual bases for requiring San Francisco to
update its LTCP. EPA stated that a number of changes to
San Francisco’s combined sewer system, including San

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24 CITY & COUNTY OF SAN FRANCISCO V. USEPA
Francisco’s own capital upgrades, as well as its maintenance
and operational problems, necessitated an LTCP update.
EPA included in its memorandum a table listing cities,
including New York City, Washington, D.C., and
Philadelphia, that had recently updated their respective
LTCPs.
San Francisco submitted detailed comments about the
narrative water quality provisions in Section V and
Attachment G, as well as the requirement that the LTCP be
updated. San Francisco wrote that “[t]he generic, boilerplate
narrative water-quality based permit terms are contrary to
law and are unsupported by the available facts.” It also
wrote that it “strongly disagrees that an update to the City’s
LTCP is needed or appropriate.” Members of the public
submitted comments to EPA and Regional Water Board.
Many of the comments expressed concern about CSO
discharges into private homes and businesses.
EPA and the Regional Water Board responded to San
Francisco’s comments, defending their inclusion of narrative
water quality standards in Section V and Attachment G as
lawful under the CWA and federal regulations. In addition
to asserting that such narrative provisions were lawful under
the CWA, the agencies noted that EPA had included permit
terms similar to those of Section V in other NPDES permits
for combined sewer systems in other municipalities and for
discharges into marine waters elsewhere in the United
States. The Regional Water Board stated that it had included
a provision identical to that in Attachment G “in nearly all
individual NPDES permits since at least 1993.”
EPA and the Regional Water Board also defended the
requirement of an LTCP update, citing legal support and
factual findings. The agencies stated that San Francisco is

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 25
not exempt “from planning requirements in perpetuity”
under the CSO Control Policy. The agencies also explained
their view that the current CSO discharges to Ocean Beach
(CSD-001, CSD-002, CSD-003), China Beach (CSD-005),
and Baker Beach (CSD-006 and CSD-007) affected
“sensitive areas” because they discharge to “primary contact
recreation waters” and “waters with threatened or
endangered species.” These discharges therefore threaten
the “beneficial uses” of the Pacific Ocean.
The agencies included the following four factual
findings in their response: (1) between 2011 and 2014, 100
million gallons of combined sewage and storm water were
discharged from the Oceanside CSDs; (2) between 2008 and
2014, surveys indicated 20% of recreational beach users
were in contact with receiving water after CSOs; (3) between
July 2012 and June 2013, 56 of 468 samples collected at 10
shoreline monitoring locations exceeded water-quality
criteria for at least one bacteria indicator, and 39 of those
elevated samples (70%) were associated with a CSO event;
and (4) between 2004 and 2014, pollutant concentrations
(e.g., copper and zinc) in the CSOs exceeded water quality
objectives. “Given these facts,” the agencies responded, “it
is appropriate to assess ways to reduce the volume,
frequency, and magnitude of the combined sewer discharges
to sensitive areas to better protect beneficial uses.”
3. Administrative Review of Final Permit
The Regional Water Board approved the final Oceanside
NPDES permit (No. R2-2019-0028) on September 12,
2019. EPA approved the permit (No. CA0037681) several
months later, on December 10, 2019.
After EPA approved the final permit in December 2019,
San Francisco filed a petition for review of the permit with

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26 CITY & COUNTY OF SAN FRANCISCO V. USEPA
EPA’s Environmental Appeals Board (“EAB”). The EAB
heard oral argument on October 8, 2020. San Francisco’s
petition challenged the narrative prohibitions and the LTCP
update requirement, contending that they are inconsistent
with the CWA, its implementing regulations, and the facts in
the record. San Francisco also challenged a provision
regarding reporting of isolated CSOs, but it is not seeking
judicial review of that provision.
While San Francisco’s petition for review was pending
before the EAB, the EPA stayed the contested provisions of
the Oceanside permit. The EAB denied San Francisco’s
petition for review in its entirety on December 1, 2020. City
and County of San Francisco, 18 E.A.D. 322 (EAB 2020).
EPA issued its Notice of Final Permit Decision on December
22, 2020. The Oceanside NPDES permit became fully
effective and enforceable on February 1, 2021.
San Francisco timely petitioned for review in this court.
We have jurisdiction to review EPA’s actions issuing or
denying an NPDES permit under 33 U.S.C. § 1369(b)(1)(F).
II. Standard of Review
The Administrative Procedure Act (“APA”) governs
EPA’s issuance of NPDES permits. See Nat. Res. Def.
Council v. U.S. EPA, 279 F.3d 1180, 1186 (9th Cir. 2002).
Under the APA, we must set aside an agency’s decision if it
is “arbitrary, capricious, an abuse of discretion, or otherwise
not in accordance with law.” 5 U.S.C. § 706(2)(A). This
standard of review is “highly deferential.” Kern Cnty. Farm
Bureau v. Allen, 450 F.3d 1072, 1076 (9th Cir. 2006)
(quoting Indep. Acceptance Co. v. California, 204 F.3d
1247, 1251 (9th Cir. 2000)). “We may not substitute our
judgment for that of the agency.” Food & Water Watch v.
U.S. EPA, 20 F.4th 506, 514 (9th Cir. 2021).

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 27
An agency’s reasonable interpretation of a statute it
administers is entitled to deference, Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984),
as is an agency’s reasonable interpretation of its genuinely
ambiguous regulations, Kisor v. Wilkie, 139 S. Ct. 2400,
2415–16 (2019). Furthermore, courts “must defer to a great
extent to the expertise of the EPA” when reviewing the
agency’s scientific determinations in an area within the
agency’s expertise. Nat. Res. Def. Council, Inc. v. U.S. EPA,
863 F.2d 1420, 1430 (9th Cir. 1988) (citing Balt. Gas &
Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 103
(1983)).
III. Discussion
A. Narrative Prohibitions
San Francisco argues that two general narrative
prohibitions included in the Oceanside NPDES permit,
Section V and Attachment G, are unlawful because (1) they
“contravene EPA’s obligation under the CWA to specify
pollutant limits or operational requirements that will achieve
compliance with WQS”; (2) by including these provisions in
the permit, EPA failed to “follow its own rules” for setting
WQBELs; and (3) EPA justified the need for the provisions
“with only conclusory assertions.”
For the convenience of the reader, we again quote the
general narrative prohibitions. The first, Section V,
“Receiving Water Limitations,” provides:
Discharge shall not cause or contribute to a
violation of any applicable water quality
standard (with the exception set forth in [the
1979 Ocean Plan Exception]) for receiving
waters adopted by the Regional Water Board,

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28 CITY & COUNTY OF SAN FRANCISCO V. USEPA
State Water Resources Control Board (State
Water Board), or U.S. EPA as required by the
CWA and regulations adopted thereunder. If
more stringent water quality standards are
promulgated or approved pursuant to CWA
section 303, or amendments thereto, the
Regional Water Board and U.S. EPA may
revise or modify this Order in accordance
with the more stringent standards.
The second, part of Attachment G, provides: “Neither the
treatment nor the discharge of pollutants shall create
pollution, contamination, or nuisance as defined by
California Water Code section 13050.”1
We address in turn San Francisco’s challenges to the
general narrative prohibitions.
1. Consistency with the CWA
San Francisco argues that EPA’s inclusion of the general
narrative prohibitions is inconsistent with the CWA because
they are too vague to ensure the city’s control measures will
protect water quality. We disagree.
1 Section 13050 defines “pollution” as “an alteration of the quality of the
waters of the state by waste to a degree which unreasonably affects
either . . . waters for beneficial uses [or] [f]acilities which serve
beneficial uses.” Cal. Water Code § 13050(l). “Contamination” is “an
impairment of the quality of the waters of the state by waste to a degree
which creates a hazard to the public health through poisoning or through
the spread of disease.” Id. § 13050(k). And “nuisance” is defined as
“anything which . . . (1) [i]s injurious to health, or is indecent or
offensive to the senses, or an obstruction to the free use of property . . .
(2) [a]ffects at the same time an entire community or neighborhood, or
any considerable number of persons . . . and (3) [o]ccurs during, or as a
result of, the treatment or disposal of wastes.” Id. § 13050(m).

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 29
The plain text of the CWA and its implementing
regulations provide NPDES permitting agencies with broad
authority to impose limitations necessary to ensure the
discharger’s adherence to “any applicable water quality
standard.” 33 U.S.C. § 1311(b)(1)(C). Consistent with this
statutory directive, federal regulations require all NPDES
permits to include “any requirements in addition to or more
stringent than promulgated effluent limitations guidelines or
standards . . . necessary to . . . [a]chieve water quality
standards established under section 303 of the CWA,
including State narrative criteria for water quality.” 40
C.F.R. § 122.44(d). The CWA and its implementing
regulations thus require EPA to impose “any more stringent
limitation” necessary to satisfy “State narrative criteria for
water quality,” including those beyond “effluent
limitations.” Id.; 33 U.S.C. § 1311(b)(1)(C). Moreover, the
CSO Control Policy, which is legally binding under 33
U.S.C. § 1342(q)(1), specifies that Phase I NPDES permits
must include a provision requiring municipalities to
“[c]omply with applicable WQS, no later than the date
allowed under the State’s WQS, expressed in the form of a
narrative limitation.” 59 Fed. Reg. at 18696 (emphasis
added). These provisions do not merely authorize a
permitting agency’s inclusion of narrative limitations on
discharges that may violate state WQS; they require such
narrative limitations when necessary to satisfy applicable
WQS.
Supreme Court precedent, our prior cases, and prior EAB
decisions support the legality and confirm the enforceability
of general narrative prohibitions in permits issued under the
CWA. In PUD No. 1 of Jefferson County v. Washington
Department of Ecology, 511 U.S. 700, 715–16 (1994), the
Supreme Court upheld the state agency’s use of “open-

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30 CITY & COUNTY OF SAN FRANCISCO V. USEPA
ended” criteria using “broad, narrative terms,” in addition to
“numerical criteria,” to certify a hydroelectric power plant’s
compliance with the CWA. In Northwest Environmental
Advocates v. City of Portland, 56 F.3d 979, 989 (9th Cir.
1995), a CSO case, we relied on Jefferson County to uphold
citizen-suit enforcement of “water quality standards that are
not translated into quantitative limitations.” We recognized
that citizen suits to enforce such “qualitative regulations” are
“an important enforcement tool,” especially in cases where
effluent limitations either do not apply at all, or merely
establish “minimum requirements.” Id. More recently, in
Natural Resources Defense Council, Inc. v. County of Los
Angeles, 725 F.3d 1194, 1199, 1205–07 (9th Cir. 2013), we
enforced a narrative NPDES provision that was nearly
identical to that of Section V, “Receiving Water
Limitations,” in this case. Finally, in a closely analogous
recent EAB decision, In re City of Lowell, 18 E.A.D. 115,
176 (EAB 2020), the EAB held that EPA did not err in
issuing a general, narrative NPDES permit provision
“alongside more specific ‘end of pipe’ pollutant-specific
effluent limits.”
In the Oceanside NPDES permit at issue before us, EPA
included, along with numeric effluent limitations for dry-
and wet-weather discharges, the two general narrative
prohibitions quoted above, forbidding discharges that “cause
or contribute to a violation of any applicable water quality
standard,” or “create pollution, contamination, or nuisance.”
The two narrative provisions are consistent with the CWA
and its implementing regulations. They simply require that
San Francisco’s discharges comply with applicable state
WQS. Indeed, EPA points out that the language of Section
V’s prohibition is frequently employed by EPA in other
NPDES permits it issues for combined sewer systems, and

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 31
that the Attachment G provision is included in nearly all
individual NPDES permits the Regional Water Board has
issued over the past three decades. See Ohio Valley Env’t
Coal. v. Fola Coal Co., 845 F.3d 133, 141–42 (4th Cir. 2017)
(noting the frequency with which EPA imposes general
narrative water quality standards in its NPDES permits and
their consistent enforcement).
San Francisco nevertheless contends that the general
narrative provisions violate the CWA, arguing that the
permit fails to provide the city with sufficiently clear
directions as to how to ensure that its discharges comply with
WQS. In support of its contention, San Francisco cites
Natural Resource Defense Council v. U.S. EPA (“NRDC”),
808 F.3d 556 (2d Cir. 2015). In that case, a narrative
WQBEL—that is, a general narrative standard—mandated
that ships “control discharges as necessary to meet
applicable water quality standards in the receiving water
body or another water body impacted by [the] discharges.”
Id. at 568 (alteration in original) (quotation marks and
citations omitted). The Natural Resources Defense Council
(“NRDC”) challenged the narrative WQBEL on the ground
that it was insufficient to satisfy EPA’s regulatory
obligations under the CWA to ensure clean water. The
Second Circuit agreed with NRDC, holding that the
narrative provision, standing alone, was insufficient to
satisfy EPA’s obligations under the CWA. The court wrote,
“By requiring shipowners to control discharges ‘as
necessary to meet applicable water quality standards’
without giving specific guidance on the discharge limits,
EPA fails to fulfill its duty to ‘regulat[e] in fact, not only in
principle.’” Id. at 578 (alteration in original) (citation
omitted).

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32 CITY & COUNTY OF SAN FRANCISCO V. USEPA
The case before us is the converse of NRDC. In that case,
petitioner NRDC sought more stringent enforcement than
the EPA permit required. Here, by contrast, San Francisco
seeks less stringent enforcement. It seeks to turn NRDC on
its head, relying on a decision requiring more effective
enforcement to support an argument in favor of less effective
enforcement.
Even if we were to regard NRDC as a relevant precedent,
we would conclude that the general narrative provision is
consistent with the CWA. In contrast to the permit in NRDC,
which contained only the two general narrative WQBEL
provisions, see id. at 568, the Oceanside NPDES permit in
the case before us includes several numeric and specific
narrative WQBELs in addition to the challenged general
narrative provisions. For example, the wet-weather
discharge provisions in the Oceanside NPDES permit
include specifications for the percentage of combined
wastewater and storm water that Oceanside must capture
during precipitation events; the specific flow rates that must
be obtained prior to discharge from the different CSDs; and
the percent chance of rain that triggers maximization of
secondary treatment capacities. In other words, specific
provisions in the Oceanside NPDES permit provide San
Francisco with substantial guidance as to how to satisfy the
applicable WQS. The challenged general narrative
provisions operate as a “backstop” to those provisions,
seeking to ensure that permitted discharges protect the water
quality of the Pacific Ocean if the specific technological and
water-quality based effluent limitations fail to achieve
compliance with the CWA.

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 33
2. Conformity with Procedural Requirements
San Francisco also argues that the general narrative
prohibitions are unlawful because EPA failed “to follow its
own rules for setting WQBELs.” Specifically, San
Francisco argues that EPA failed to follow the procedures
set forth in 40 C.F.R. § 122.44(d)(1)(i)–(vii) when it
formulated its general narrative provisions. In deciding San
Francisco’s appeal within the agency, the EAB of EPA
disagreed with San Francisco’s argument. The EAB wrote:
Although 40 C.F.R. § 122.44(d) sets forth a
process for deriving pollutant-specific
effluent limits when the permitting authority
determines that a particular pollutant has the
reasonable potential to cause or contribute to
an exceedence of water quality standards, the
regulations do not require all permit
conditions necessary to meet water quality
standards to be expressed in terms of specific
pollutant-by-pollutant limitations.
We agree with the EAB.
Under § 122.44(d)(1), NPDES permit limitations “must
control all pollutants . . . which the Director determines are
or may be discharged at a level which will cause, have the
reasonable potential to cause, or contribute to an excursion
above any State water quality standard, including State
narrative criteria for water quality.” 40 C.F.R.
§ 122.44(d)(1)(i). San Francisco reads this regulation as
requiring EPA to “conduct a reasonable potential analysis”
prior to setting any limitations—including general narrative
prohibitions. San Francisco is mistaken.

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34 CITY & COUNTY OF SAN FRANCISCO V. USEPA
Section 122.44(d)(1) does not set forth an exclusive
process for imposing WQBELs. The regulations in this
section set forth minimum requirements for imposing
pollutant-specific WQBELs. It does not state that the
permitting authority cannot set general narrative limitations
limits to achieve compliance with WQS. The governing
statutory section, 33 U.S.C. § 1311(b)(1)(C), requires EPA
to impose limitations “necessary” to meet “water quality
standards” without restricting the agency to the sort of
pollutant-by-pollutant regulation contemplated in
§ 122.44(d)(1). We therefore conclude that EPA did not
abuse its discretion or act contrary to §1311(b)(1)(C) in
issuing its general narrative prohibitions.
3. Factual Basis for Narrative Provisions
San Francisco further contends that EPA arbitrarily
imposed the contested narrative prohibitions based on “a pair
of unsupported assertions,” namely (1) that the limits are
“necessary to ensure compliance with applicable water
quality standards,” and, relatedly, (2) that the prohibitions
“serve as backstops in the event that the effluent
limitations . . . prove to be inadequate.” San Francisco
argues that the record demonstrates that the permit’s other
effluent limitations “are sufficient to protect receiving water
quality,” and that EPA’s decision to set WQBELs
“necessarily included determinations that these Permit limits
are sufficient to protect WQS on their own.”
In response, EPA argues that the record supports its
determination “that compliance with end-of-pipe numeric
effluent limitations in the permit might not ensure
compliance with water quality standards, including
protection of beneficial uses.” EPA contends that because
the CWA, under the binding CSO Control Policy, requires

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 35
that permit writers ensure municipalities’ “compliance with
water quality standards and protection of designated uses,”
the numeric effluent limitations for discharges may not be
sufficient to ensure that wet-weather CSOs comply with the
mandate to protect beneficial uses such as recreation. See 59
Fed. Reg. at 18668 (emphasis added). In support, EPA cites
evidence in the record of impairments to beneficial uses
resulting from Oceanside’s wet-weather CSO discharges
onto “popular recreational areas” including Ocean Beach,
China Beach, and Baker Beach.
Under the APA, an agency’s decision is arbitrary and
capricious if it “offered an explanation for its decision that
runs counter to the evidence before the agency.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto.
Ins. Co., 463 U.S. 29, 43 (1983). An agency must “examine
the relevant data and articulate a satisfactory explanation for
its action including a ‘rational connection between the facts
found and the choice made.’” Id. at 43 (quoting Burlington
Truck Lines v. United States, 371 U.S. 156, 168 (1962)).
Here, in its response to San Francisco’s comments on the
draft permit, EPA explained its decision to include the
narrative provisions in Section V and Attachment G due to
its concerns about San Francisco’s wet-weather CSOs.
Specifically, the agency noted its determination that
“particular assumptions about the frequency of combined
sewer discharges” made by the State Water Board in its 1979
Ocean Plan Exception order, which authorized Oceanside an
average of eight CSOs per year, “may not ensure protection
of beneficial uses today.” In response to another comment
made by San Francisco (regarding the LTCP Update
provision), EPA further cited factual evidence in support of
its concern that current limitations in the Oceanside NPDES
permit may not ensure the protection of “beneficial uses”—

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36 CITY & COUNTY OF SAN FRANCISCO V. USEPA
namely that the combined sewer discharges at Ocean Beach,
China Beach, and Baker Beach, while under the eight CSO
per year limit, nevertheless may not adequately protect
recreational use.
Because EPA’s general narrative provisions were
included as a “backstop” to ensure compliance with WQS
not addressed by specific effluent limitations elsewhere in
the permit—namely, protection of beneficial uses such as
recreation—its decision is rationally supported by the
evidence in the record describing negative impacts of CSOs
on users of San Francisco’s beaches.
4. Summary
We hold that EPA appropriately implemented the CWA
by including the two challenged general narrative
prohibitions in addition to more specific effluent limitations
in the Oceanside NPDES permit; that EPA was not required
to follow the procedures set forth in 40 C.F.R. § 122.44(d)(1)
for deriving pollutant-specific effluent limitations in
imposing the general narrative provisions; and that EPA’s
decision to impose the general narrative provisions was
rationally connected to evidence in the record indicating that
a “backstop” to the more specific provisions would be useful
in protecting beneficial uses.
B. LTCP Update
San Francisco also challenges the Oceanside NPDES
permit requirement that it update its LTCP for CSO control.
For the convenience of the reader, we reiterate that the LTCP
Update provision requires San Francisco to undertake five
major tasks, including: (1) “characteriz[ing]” the updated
combined sewer system; (2) describing its efforts to engage
the public in its decision-making processes; (3) reporting on

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 37
its consideration of options to “eliminate, relocate, or reduce
the magnitude or frequency of discharges to sensitive areas,”
including cost/benefit analyses; (4) proposing an operational
plan to minimize CSOs; and (5) submitting a revised post-
construction compliance monitoring program plan.
San Francisco argues that: (1) EPA did not make a
factual finding necessary to require San Francisco to update
its LTCP under the CSO Control Policy; and (2) the
requirement that San Francisco specifically address
“sensitive areas” in the update exceeds the agency’s
authority.
We address San Francisco’s arguments in turn.
1. Factual Finding Supporting the LTCP Update
Requirement
San Francisco argues that there is “only one
circumstance when EPA can order an LTCP update: when
the plan is not attaining compliance with WQS.” San
Francisco argues that because EPA did not make a finding
of noncompliance, the LTCP Update requirement is
unlawful.
It is undisputed that San Francisco was exempted from
creating an initial LTCP in 1997. At that time San Francisco
had “substantially completed” the construction of its CSO
control program facilities. The parties dispute whether San
Francisco was exempted under Section I.C.1 or Section
I.C.2. We agree with San Francisco that the Section I.C.1
exemption was applied in its first NPDES permit.

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38 CITY & COUNTY OF SAN FRANCISCO V. USEPA
The Section I.C.1 exemption in the CSO Control Policy
provides:
Any permittee that, on the date of publication
of this final Policy, has completed or
substantially completed construction of CSO
control facilities that are designed to meet
WQS and protect designated uses, and where
it has been determined that WQS are being or
will be attained, is not covered by the initial
planning and construction provisions in this
Policy; however, the operational plan and
post-construction monitoring provisions
continue to apply. If, after monitoring, it is
determined that WQS are not being attained,
the permittee should be required to submit a
revised CSO control plan that, once
implemented, will attain WQS.
59 Fed. Reg. at 18690 (emphasis added).
San Francisco argues that the final sentence of the
Section I.C.1 exemption, italicized above, is the only basis
on which a permitting agency may require an LTCP update
from a city that was exempt from initial LTCP planning
requirements. San Francisco cites in support of its argument
the interpretative canon of expressio unius est exclusio
alterius. It also relies on another provision of the CSO
Control Policy, Section IV.B.2.g, the “reopener clause”
provision, id. at 18696, arguing that “[t]he Policy expects no
further planning or revisions to an approved LTCP, except
‘upon determination that the CSO controls fail to meet water
quality standards . . . .’” San Francisco also points to
another EPA CSO Guidance manual from 1995, which

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 39
specifies that “[i]f post-construction monitoring indicates
that existing WQS are not being met, the data generated can
be used to identify the additional CSO controls necessary to
achieve WQS.” U.S. Envt’l Prot. Agency, No. 832-B-95-
002, Combined Sewer Overflows: Guidance for Long-Term
Control Plan 4-16 (1995).
EPA argues that a prior determination that WQS are not
being met is not the only basis on which it may require an
LTCP update. EPA cites provisions in the CSO Control
Policy that grant EPA authority to reassess, modify, and
require revisions to NPDES permits, even for those
programs exempted from initial planning requirements, in
support of its interpretation.
Reading the CSO Control Policy as a whole, especially
Section I.C, we agree with EPA. Most important, Section
I.C.3 of the CSO Control Policy states: “In the case of any
ongoing or substantially completed CSO control effort, the
NPDES permit or other enforceable mechanism, as
appropriate, should be revised to include all appropriate
permit requirements consistent with section IV.B of this
Policy.” 59 Fed. Reg. at 18690 (emphases added). We note
that the Control Policy refers to Section IV.B without
limitation, not just Section IV.B.2.g cited by San Francisco.
Section IV.B sets forth all the NPDES permit requirements
for CSOs. Id. at 18695–96. We read Section I.C.3 to provide
NPDES permitting authorities with broad discretion to
impose revised permit requirements, as set forth in Section
IV.B, on municipalities initially exempted from planning
and construction requirements under either Section I.C.1
(exempting municipalities with “completed or substantially
completed construction of CSO control facilities”) or
Section I.C.2 (exempting municipalities with a

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40 CITY & COUNTY OF SAN FRANCISCO V. USEPA
“substantially developed” or ongoing “implement[ation]” of
a CSO control program). Id. at 18690.
Standard Phase II permit provisions set forth in the CSO
Control Policy under Section IV.B further support EPA’s
interpretation of Section I.C. The Policy mandates in
Section IV.B.2.e that every Phase II permit—a permit given
only to municipalities that have completed their LTCP and
construction of their controls—include “[a] requirement to
reassess overflows to sensitive areas in those cases where
elimination or relocation of the overflows is not physically
possible and economically achievable.” Id. at 18696. All
Phase II permittees are to conduct a reassessment of their
CSOs to sensitive areas “based on consideration of new or
improved techniques to eliminate or relocate overflows or
changed circumstances that influence economic
achievability.” Id. In addition, as San Francisco
acknowledges, the Policy mandates in Section IV.B.2.g that
every Phase II NPDES permit include a “reopener clause
authorizing the NPDES authority to reopen and modify the
permit upon determination that the CSO controls fail to meet
WQS or protect designated uses.” Id. (emphasis added).
When an NPDES authority decides to modify a permit
because “the CSO controls fail[ed] to . . . protect designated
uses,” it can do so without necessarily having found a failure
to attain WQS. These standard Phase II provisions
demonstrate that even post-construction, the CSO Control
Policy authorizes permitting agencies to order municipalities
to periodically reassess their CSO control program for
potential improvement with respect to designated uses,
irrespective of any failure to meet WQS.
Our dissenting colleague believes that Section
IV.B.2.g’s reference to “protecting ‘designated uses’ . . .
adds nothing to the concept of achieving water quality

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 41
standards.” Dissenting Op. at 64. But the CSO Control
Policy does not reference the “protect[ion] of designated
uses” only in Section IV.B.2.g. The “protect[ion] of
designated uses” language appears close to thirty times in the
CSO Control Policy. Each time, the CSO Control Policy
describes “protection of designated uses” as distinct from
achieving water quality standards. For example, the Policy
instructs permittees to “develop long-term CSO control
plans which evaluate alternatives for attaining compliance
with the CWA, including compliance with water quality
standards and protection of designated uses.” 59 Fed. Reg.
at 18688 (emphasis added). The Policy further advises that
“[s]chedules for implementation of the long-term CSO
control plan may be phased based on the relative importance
of adverse impacts upon water quality standards and
designated uses . . . .” Id. (emphasis added). The CSO
Control Policy thus treats the “protection of designated uses”
as an independently significant obligation, and not simply a
byproduct of attaining the relevant water quality standard.
We therefore hold that EPA’s ability to require San
Francisco to update its LTCP is not conditioned on a finding
that WQS were not being met. However, EPA’s requirement
that San Francisco update its LTCP must be rationally
supported by record evidence. See Motor Vehicle Mfrs.
Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983). We hold that there is adequate
evidentiary support in the record. As we noted above, San
Francisco’s current LTCP (a collection of twenty-one
relevant documents) has not been updated since 1991, more
than thirty years ago, despite San Francisco’s extensive
investment in operational assessments and capital
improvements through its Sewer System Improvement Plan
since then. The fact that the LTCP is so outdated is enough,

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42 CITY & COUNTY OF SAN FRANCISCO V. USEPA
by itself, to support EPA’s conclusion that an updated LTCP
is needed. Moreover, San Francisco’s current LTCP was
found by the Regional Water Board to be inadequate to
ensure compliance with the CWA. Evidence of these
deficiencies in San Francisco’s current LTCP supports
EPA’s requirement that San Francisco accurately
characterize its contemporary sewer systems and evaluate
control alternatives. In requiring an updated LTCP, EPA is
ensuring that San Francisco satisfies applicable state WQS,
most notably the 1979 Ocean Plan Exception, which was
conditioned on San Francisco’s efforts to protect water
quality “to the greatest extent practical,” taking into
consideration “changes in location, intensity or importance
of affected beneficial uses or demonstrated unacceptable
adverse impacts [of the CSOs].”
2. Requirement to Consider Sensitive Areas
San Francisco also contends that LTCP Update Task 3,
one of its five assigned LTCP Update tasks, is “uniquely
inconsistent with San Francisco’s exemption under Section
I.C.1 of the Policy and EPA’s authority more generally.”
LTCP Update Task 3, “Consideration of Sensitive Areas,”
requires that San Francisco reevaluate alternatives for the six
of its seven CSD outfalls that are located adjacent to popular
recreational beaches. Whereas the Section I.C.2 exemption
explicitly provides that programs falling under this
exemption “should be reviewed and modified to be
consistent with the sensitive area, financial capability, and
post-construction monitoring provisions of this Policy,” the
Section I.C.1 exemption does not contain this provision for
routine sensitive area reassessment. 59 Fed. Reg. at 18690.
San Francisco argues that because it was granted an
exemption under Section I.C.1 rather than I.C.2, “EPA
cannot require the city to undertake any sensitive areas

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 43
analysis.” EPA argues that the CSO Control Policy provides
it with authority to require San Francisco to reassess its
CSOs to sensitive areas on an ongoing basis even assuming
it was granted an exception from initial LTCP planning and
construction under Section I.C.1 rather than Section I.C.2.
Here, too, we agree with EPA. As discussed above,
Section I.C.3 provides NPDES permitting authorities with
broad discretion to impose revised permit requirements on
municipalities initially exempted from planning and
construction requirements under either Section I.C.1 or
Section I.C.2 of the Policy. Id. at 18690. This discretion
includes the ability to impose a requirement that
municipalities reassess CSOs to sensitive areas. See id. at
18696 (Section IV.B.2.e). The Policy mandates that all
Phase II permits include a provision requiring a permittee to
“reassess overflows to sensitive areas in those cases where
elimination or relocation of the overflows is not physically
possible and economically achievable.” Id. This
reassessment requirement aligns squarely with the CSO
Control Policy’s objective that “a permittee’s long-term
CSO control plan . . . give the highest priority to controlling
overflows to sensitive areas.” Id. at 18692.
San Francisco contends that even if it were bound to
reassess discharges into sensitive areas, the Task 3
requirement stretches beyond EPA’s authority to require it
to assess alternatives intended to “eliminate or relocate”
CSOs. Id. In the view of San Francisco, EPA cannot instead
require it to assess the alternative of “reducing the magnitude
and frequency” of CSOs. However, alternative controls that
would aid in “reducing the magnitude and frequency” of
CSOs are likely to be less costly than alternatives that would
entail relocating or eliminating CSOs altogether. We decline
to overturn EPA’s interpretation of the CSO Control Policy,

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44 CITY & COUNTY OF SAN FRANCISCO V. USEPA
which allows it to require a less expensive and potentially
more effective measure.
3. Summary
In sum, the CSO Control Policy provides EPA with
authority to require San Francisco to update its LTCP and
reevaluate alternatives for its CSO discharges to sensitive
areas. EPA’s decision to require an updated LTCP is
rationally supported by evidence in the record, and we hold
that EPA did not act unlawfully in including the provision in
the 2019 Oceanside NPDES permit.
Conclusion
We hold that EPA had authority under the CWA to
include in the Oceanside NPDES permit two narrative
prohibitions against violating applicable WQS; that EPA had
authority to require San Francisco to update its LTCP for
CSOs; and that EPA’s decisions were rationally connected
to evidence in the record. We therefore deny San
Francisco’s petition for review.
Petition DENIED.

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 45
COLLINS, Circuit Judge, dissenting:
The City and County of San Francisco (“San Francisco”)
challenges three specific conditions that the Environmental
Protection Agency (“EPA”) included in the permit that the
EPA issued to San Francisco, under the “National Pollutant
Discharge Elimination System” (“NPDES”), in connection
with the operation of a combined wastewater and stormwater
collection and treatment system. In my view, all three
conditions are invalid, and I would therefore grant San
Francisco’s petition for review, vacate the challenged
provisions, and remand the matter to the agency. Because
the majority instead upholds each condition, I respectfully
dissent.
I
To place the issues raised by the parties in their proper
context, it is helpful first to provide some appropriate
background concerning the Clean Water Act, the special
rules governing combined sewer systems, and the permit at
issue here.
A
The current federal water pollution control system dates
back to the enactment of the Federal Water Pollution Control
Act Amendments of 1972, Pub. L. No. 92-500, 86 Stat. 816
(1972). That Act, which itself is often colloquially called the
Clean Water Act, completely rewrote the then-existing
Federal Water Pollution Control Act (“FWPCA”). See City
of Milwaukee v. Illinois, 451 U.S. 304, 317 (1981). The
revised FWPCA—which was officially given the alternative
title of the “Clean Water Act” in 1977, see Pub. L. No. 95-
217, § 2, 91 Stat. 1566 (1977)—remains, as amended, the
principal federal statute governing the regulation and control

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46 CITY & COUNTY OF SAN FRANCISCO V. USEPA
of water pollution, and it has been classified to chapter 26 of
the unenacted title 33 of the United States Code. See 33
U.S.C. § 1251 et seq.
Prior to its amendment in 1972, the FWPCA “employed
ambient water quality standards specifying the acceptable
levels of pollution in a State’s interstate navigable waters as
the primary mechanism in its program for the control of
water pollution.” EPA v. California ex rel. State Water Res.
Control Bd. (EPA v. California), 426 U.S. 200, 202 (1976).
These overall standards for particular bodies of water were
intended “to serve both to guide performance by polluters
and to trigger legal action to abate pollution.” Id. But the
system “proved ineffective” in practice. Id. Because the
focus was on the ultimate aggregate level of pollution in the
body of water as a whole, rather than on “the preventable
causes of water pollution” into that body of water,
enforcement of the standards required “work[ing] backward
from an overpolluted body of water to determine which point
sources are responsible and which must be abated.” Id. at
202, 204 (emphasis added). That feature, combined with
“the awkwardly shared federal and state responsibility for
promulgating such standards” and the “cumbrous
enforcement procedures,” made it “very difficult to develop
and enforce standards to govern the conduct of individual
polluters.” Id. at 202–03.
As the Supreme Court has explained, the Clean Water
Act (“CWA”) takes an entirely different approach that
includes two major changes. First, rather than measuring an
individual polluter’s performance “against limitations
derived from water quality standards to which it and other
polluters must collectively conform,” the CWA directly
regulates discharges from specific point sources by setting
“effluent limitations”—i.e., “restrictions . . . on quantities,

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 47
rates, and concentrations of chemical, physical, biological,
and other constituents which are discharged from point
sources.” Id. at 204–05 (emphasis added). Second, to
implement this shift to a direct regulation of discharges, the
CWA “establish[ed] the National Pollutant Discharge
Elimination System (NPDES) as a means of achieving and
enforcing the effluent limitations.” Id. at 205 (footnote
omitted). “Under the NPDES, it is unlawful for any person
to discharge a pollutant without obtaining a permit and
complying with its terms,” which include the applicable
effluent limitations for the relevant point sources. Id.; see
also 33 U.S.C. § 1311(a).
Thus, under the revised regulatory scheme established by
the CWA, the regulators issuing individual NPDES permits
are ultimately required to translate the overall water quality
standards for a given body of water—which are typically set
by States—into “obligations (including a timetable for
compliance) of the individual discharger,” as expressed in
that discharger’s NPDES permit. EPA v. California, 426
U.S. at 205. The effluent limitations contained in an NPDES
permit include, in the first instance, “technology-based
limitations on individual discharges” from point sources.
PUD No. 1 of Jefferson County v. Washington Dep’t of
Ecology, 511 U.S. 700, 704 (1994); see also Our Children’s
Earth Foundation v. EPA, 527 F.3d 842, 848 (9th Cir. 2008)
(explaining that such “technology-based” effluent
limitations are “determined according to the best available
or practicable technology” for reducing pollution at the
source); Natural Res. Def. Council, Inc. v. EPA (NRDC I),
822 F.2d 104, 110 (D.C. Cir. 1987) (stating that
“technology-based effluent limitations, as their name
suggests, derive from standards formulated with reference to
pollution control technology”).

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48 CITY & COUNTY OF SAN FRANCISCO V. USEPA
However, if such technology-based effluent limitations
“are insufficient to attain or maintain water quality
standards, the CWA requires NPDES permits to include
additional water quality-based effluent limits.” Natural Res.
Def. Council, Inc. v. EPA (NRDC II), 808 F.3d 556, 564 (2d
Cir. 2015) (emphasis added). Such water-quality-based
effluent limitations are set “based on the amounts and kinds
of pollutants in the water in which the point source
discharges,” NRDC I, 822 F.2d at 110, and they are set
“without regard to cost or technological availability,”
NRDC II, 808 F.3d at 565. In addition to such numerically-
based effluent limitations, an NPDES permit may also
contain “narrative” conditions that specify, in descriptive
terms, how particular activities are to be conducted, so as to
achieve compliance with the relevant water quality
standards. PUD No. 1, 511 U.S. at 716.
The various specific limitations contained in the NPDES
permit are then subject to “direct administrative and judicial
enforcement.” EPA v. California, 426 U.S. at 205. But,
“[w]ith few exceptions,” if an NPDES permit holder
complies with the conditions of its permit, that discharger
will be “deemed to be in compliance” with the principal
provisions of the CWA. Id.; see also 33 U.S.C. § 1342(k).
And that remains true even if the discharges released in
compliance with the discharger’s NPDES permit “would
reach waters already in violation of existing water quality
standards.” Arkansas v. Oklahoma, 503 U.S. 91, 107 (1992).
B
Operators of a combined wastewater and stormwater
collection and treatment system—such as the one operated
by San Francisco here—are subject to specialized rules that
govern both the NPDES permitting process for such systems

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 49
and other aspects of their operation. A key objective of these
special rules is to address the fact that such a “combined
sewer system” (“CSS”), which “conveys sanitary
wastewaters . . . and storm water through a single-pipe
system” to a water-treatment plant, may on occasion
experience a “combined sewer overflow” (“CSO”), i.e., a
discharge “at a point prior” to treatment at the water-
treatment plant. See Combined Sewer Overflow (CSO)
Control Policy, 59 Fed. Reg. 18687, 18689 (Apr. 19, 1994)
(emphasis added). Such an overflow can occur when, for
example, heavy rains result in the system being
overwhelmed by an increased flow of water that exceeds the
capacity of the treatment plant. To help combat the dangers
such CSOs pose, the EPA promulgated a special “CSO
Control Policy” in 1994. Id. at 18687–97. Pursuant to a
2000 amendment to the CWA, this CSO Control Policy
document effectively has the force of a statute. See 33
U.S.C. § 1342(q)(1) (requiring that “[e]ach permit, order, or
decree issued” under the CWA, after December 21, 2000,
“for a discharge from a municipal combined storm and
sanitary sewer shall conform to the Combined Sewer
Overflow Control Policy” issued in 1994).
The CSO Control Policy relies on two primary
mechanisms for achieving its overall objectives of
controlling and mitigating CSO events. First, under § II.C
of the Policy, each permittee operating a system that
experiences CSOs must “develop[] and implement[]” a
“long-term CSO control plan[] that will ultimately result in
compliance with the requirements of the CWA.” 59 Fed.
Reg. at 18691. A full-blown long-term control plan
(“LTCP”) would include, inter alia, (1) preliminary work,
including public consultation, to identify and evaluate
appropriate alternatives for building the infrastructure to

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50 CITY & COUNTY OF SAN FRANCISCO V. USEPA
achieve the objectives of the CSO Control Policy in a cost-
effective manner; (2) an implementation schedule for the
selected alternatives, including a “construction and
financing schedule”; and (3) “a post-construction water
quality monitoring program.” Id. at 18691–94.
Second, the Policy relies on the NPDES permitting
process to support both the LTCP process and the overall
objectives of the Policy. Thus, § IV.B.1 of the Policy
provides that, in the “Phase I” stage in which a permittee is
developing an LTCP, the NPDES permit must contain
specific conditions to ensure that the permittee, inter alia,
(1) accomplishes the necessary tasks for developing and
submitting an LTCP; and (2) immediately implements
certain minimum controls. Id. at 18696. Section IV.B.2 of
the Policy states that, at “Phase II,” the permit must contain
various enumerated conditions, including: (1) appropriate
“requirements for implementation of the long-term CSO
control plan”; (2) requirements for appropriate monitoring;
(3) a “requirement to reassess overflows to sensitive areas”
under certain circumstances; and (4) a “reopener clause
authorizing the NPDES authority to reopen and modify the
permit upon determination that the CSO controls fail to meet
WQS [i.e., water quality standards] or protect designated
uses.” Id. Section IV.B.2.g specifically provides that, in the
event of “such determination,” the “permittee should be
required to develop, submit, and implement, as soon as
practicable, a revised CSO control plan which contains
additional controls to meet WQS and designated uses.” Id.
C
San Francisco currently “provides wastewater treatment
[services] for western San Francisco and a small portion of
[nearby] Daly City”—a service area with a population

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 51
totaling approximately 250,000 people. It does so by way of
its Oceanside Water Pollution Control Plant (the “Oceanside
Plant”) and a combined sewer system that collects
wastewater and stormwater and transports it to that plant. (I
will refer to the Oceanside Plant and the combined sewer
system, collectively, as the “Oceanside System”). The
Oceanside System’s combined sewer system consists of
“approximately 250 miles of pipe, one major pump station
. . . six minor pump stations . . . and three large
transport/storage structures.” Since 1997, San Francisco has
discharged treated wastewater from its Oceanside System
into the Pacific Ocean pursuant to the terms and conditions
of successive NPDES permits that have been jointly issued
by the EPA and the California Regional Water Quality
Control Board for the San Francisco Bay Region (the
“Regional Board”). In the 25 years prior to receiving its
1997 NPDES Permit, San Francisco spent approximately
$1.4 billion dollars fully implementing an integrated plan for
wastewater management (the “Master Plan”) that it had
begun developing in 1971—the latter being a time when San
Francisco’s then-existing sewage and wastewater treatment
systems were experiencing an average of 82 CSOs per year.
The Master Plan was designed to reduce the average
frequency of overflow events by approximately 90%, to just
eight per year.
Congress passed the CWA one year after San Francisco
developed its 1971 Master Plan. In addition to the NPDES
permitting regime described above, the CWA also
established a construction grant program in which the EPA
would provide States and municipalities with federal
funding to cover significant portions of the construction
costs for projects that “demonstrate[d] a new or improved
method of preventing, reducing, and eliminating the

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52 CITY & COUNTY OF SAN FRANCISCO V. USEPA
discharge into any waters of pollutants from sewers which
carry storm water or both storm water and pollutants.” 33
U.S.C. § 1255(a). To be eligible for those funds, an
applicant had to submit a “Facility Plan” to the EPA and to
the State showing that its proposed project “complied with
the National Environmental Policy Act.” Seeking to take
advantage of this new grant program, San Francisco spent
the next two years revising its Master Plan. As part of that
process, an “Environmental Impact Report . . . and
Environmental Impact Statement” were “prepared by the
EPA and the San Francisco Department of Planning” and
issued in 1974.
The following year, the Regional Board adopted “the
first comprehensive Basin Plan for the San Francisco Bay
Region” and began issuing “a series of permits and orders
that included enforceable schedules for implementing [San
Francisco]’s selected wet weather controls,” which included
“milestones for planning, design, and construction.” In
particular, in March 1976, the Regional Board ordered San
Francisco to construct facilities to “reduce the frequency of
discharge” from “an average of 114 overflow events per year
to an average of one overflow event per year” and to submit
a “study to better define the costs and water quality benefits
of facilities designed to achieve various overflow
frequencies.” San Francisco completed the required study
and submitted the results to the Regional Board on
December 15, 1978, accompanied by a request that the
Regional Board increase its maximum number of allowable
overflow events from one per year to eight per year. That
change required an exemption from the applicable “Water
Quality Control Plan for Ocean Waters of California,” and
the Regional Board granted the requested exemption on
March 23, 1979, and the EPA approved it a few months later.

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 53
This exemption order, together with the revised Master Plan
San Francisco adopted in 1980, “became the basis for all
subsequent planning, design, and construction of” the
Oceanside System.
With these provisions in place, San Francisco began
constructing the Oceanside System in the early 1980s and
had fully implemented the revised Master Plan by 1997, at a
total cost of approximately $1.4 billion in 1997 dollars. That
same year, the EPA and the Regional Board jointly issued an
NPDES Permit authorizing San Francisco to discharge
pollutants from the Oceanside System into the Pacific Ocean
from the System’s eight designated discharge points,
provided that those discharges complied with the terms and
conditions set forth in the permit. In that permit, the
Regional Board and the EPA expressly found that, by
implementing the Master Plan it had originally began
developing in the 1970s, San Francisco had “substantially
completed the wasterwater projects needed to control
combined sewer overflows and to reduce water quality
impact from the [Oceanside System]” and was thus “exempt
from the planning and construction requirements” of the
CSO Control Policy under § I.C.1 of that Policy. The EPA
and the Regional Board also concluded that San Francisco
had “otherwise demonstrated compliance with section I.C.1
of the CSO Control Policy” and therefore was “not required
to complete a (new) CSO long-term plan.” The
administrative record elsewhere specifically reflects what is
implicit in the 1997 permit’s findings, which is that San
Francisco’s LTCP “is not a single document, as is the case
with most combined sewer systems,” but rather “is a
collection of documents” that were “developed over the
course of two decades, dating from 1971.”

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54 CITY & COUNTY OF SAN FRANCISCO V. USEPA
The Regional Board and the EPA subsequently renewed
San Francisco’s NPDES Permit for the Oceanside System in
2003 and 2009. In both permits it reiterated that San
Francisco’s program was consistent with the CSO Control
Policy and that San Francisco was not required to prepare a
revised LTCP.
The most recent 2019 renewal of the NDPES permit for
the Oceanside System included three conditions that, after
exhausting its administrative remedies, San Francisco timely
challenges here.
II
Two of the conditions challenged by San Francisco
consist of narrative limitations that are based solely on
whether the receiving waters are meeting the applicable
water quality standards. First, § V of the permit prohibits the
City from making any discharge that (1) “contribute[s]” to a
violation of “any applicable water quality standard . . . for
receiving waters” (emphasis added). Second, Provision I.I.1
of Attachment G to the permit similarly states that San
Francisco may not make a discharge that “create[s]
pollution, contamination, or nuisance as defined by
California Water Code section 13050.” Because § 13050
defines the terms “pollution,” “contamination,” and
“nuisance” in a manner that focuses on the overall condition
of the receiving waters, San Francisco’s compliance with
this condition likewise turns on that overall condition.1 In
1 California Water Code § 13050(k) defines “[c]ontamination” as “an
impairment of the quality of the waters of the state by waste to a degree
which creates a hazard to the public health through poisoning or through
the spread of disease,” and the term “includes any equivalent effect
resulting from the disposal of waste, whether or not waters of the state
are affected.” Similarly, “[p]ollution” is defined as “an alteration of the

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 55
my view, the EPA’s imposition of these narrative limitations
was “arbitrary and capricious, an abuse of discretion, or
otherwise not in accordance with law.” 5 U.S.C.
§ 706(2)(A). I would therefore set aside these two
conditions.
A
These narrative limitations are inconsistent with the text
of the CWA. Section 301(a)(1) requires the EPA to set
specified types of “effluent limitations,” as well as “any
more stringent limitation, including those [that are]
necessary to meet water quality standards” established under
applicable state or federal law or that are “required to
implement any applicable water quality standard established
pursuant to [the CWA].” 33 U.S.C. § 1311(b)(1)(C)
(emphasis added). On its face, the statute draws an explicit
distinction between the “limitations” that the agency must
devise and impose on a particular permittee’s discharges and
the overall “water quality standards” that govern the
applicable waters into which those discharges will be made.
The narrative conditions challenged here effectively ignore
this critical distinction by making the ultimate, overall
quality of the waters of the state by waste to a degree which unreasonably
affects either”: (1) “[t]he waters for beneficial uses,” or (2) “[f]acilities
which serve th[o]se beneficial uses.” Id. § 13050(l)(1)(A)–(B). And
“‘[n]uisance’ means anything which meets all of the following
requirements”: (1) it “[i]s injurious to health, or is indecent or offensive
to the senses, or an obstruction to the free use of property, so as to
interfere with the comfortable enjoyment of life or property”; (2) it
“[a]ffects at the same time an entire community or neighborhood, or any
considerable number of persons, although the extent of the annoyance or
damage inflicted upon individuals may be unequal”; and (3) it “[o]ccurs
during, or as a result of, the treatment or disposal of wastes.” Id.
§ 13050(m)(1)–(3).

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56 CITY & COUNTY OF SAN FRANCISCO V. USEPA
“water quality standards” themselves the applicable
“limitation” for an individual discharger.
Moreover, the agency’s erasure of this crucial distinction
is fundamentally inconsistent with the CWA’s regulatory
approach. As explained earlier, see supra section I(A), the
CWA largely rejected the prior ex post system of “work[ing]
backward from an overpolluted body of water” in favor of
an ex ante system of fashioning, using the agency’s
expertise, the “direct restrictions on discharges” that are
needed to achieve the overall water quality standards for the
relevant waters. EPA v. California, 426 U.S. at 204–05; see
also City of Milwaukee v. Illinois, 451 U.S. at 320–21.
Indeed, the agency generally must rely, in the first instance,
on technology-based effluent limitations that regulate
discharges at the point source. See Our Children’s Earth
Foundation, 527 F.3d at 848. If those are inadequate, then
the agency can work backward from the applicable water
quality standards to fashion, for the relevant dischargers,
“any more stringent limitations” on discharges that are
necessary to meet those standards. 33 U.S.C.
§ 1311(b)(1)(C); see also EPA v. California, 426 U.S. at 205
n.12 (noting that, if technology-based effluent limitations are
inadequate, “[w]ater quality standards are retained as a
supplementary basis for effluent limitations”); NRDC II, 808
F.3d at 577–78 (similar). Here, by failing to articulate any
“specific guidance” as to the “practices” or “procedures” that
dischargers should undertake, NRDC II, 808 F.3d at 578–79,
and by instead directing the permittee to figure out how to
ensure compliance with the water quality standards, the
agency has effectively required the permittee to ensure that
its discharges—taken together with any other sources of
pollution into the applicable waters—do not result in a
breach of the applicable water quality standards. In doing

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 57
so, the agency has fundamentally abdicated the regulatory
task assigned to it under the CWA. See id. (holding that a
similar narrative condition reflected a failure of the agency
“to fulfill its duty to regulate in fact, not only in principle”).
As the Second Circuit explained in invalidating a similar
condition, this analysis is further confirmed by § 402 of the
CWA, which governs the issuance of NPDES permits. See
NRDC II, 808 F.3d at 579–80. That section states that the
conditions fashioned by the agency for a given permit must
“assure compliance” with the relevant requirements of the
CWA, including the achievement of the applicable water
quality standards. See 33 U.S.C. § 1342(a)(2). The agency
can “hardly” be said to have satisfied that obligation when it
issues a generic instruction not to let the water quality
standards be violated, because such a mere recitation of the
ultimate objective “in fact adds nothing” in terms of
specifying meaningful permit conditions that will “assure”
ex ante compliance with the water quality standards.
NRDC II, 808 F.3d at 578. Even if crafting such conditions
is “difficult,” the EPA “cannot simply give up and refuse to
issue more specific guidelines.” Id. at 578. Including the
sort of generic narrative condition employed here therefore
“violate[s]” § 402’s “requirement that NPDES permits
ensure compliance with the CWA.” Id. at 580.
I hasten to add that there is one limited sense in which
this generalized narrative condition does provide specific
guidance, but it is the proverbial exception that proves the
rule. In the case of a body of water that, for whatever reason
(e.g., pollution from another source), happens to contain
pollution levels that exceed the applicable water quality
standards, the inclusion of such a narrative condition would
automatically make unlawful any further discharges of the
same pollutant into those waters. That is, because any such

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58 CITY & COUNTY OF SAN FRANCISCO V. USEPA
further discharges into a body of water that is already out of
compliance would necessarily “contribute” to a violation of
“any applicable water quality standard . . . for receiving
waters,” any such discharges would violate that generic
permit condition and would therefore be unlawful under the
CWA. That would automatically trigger the “crushing
consequences” that the CWA provides “even for inadvertent
violations.” Sackett v. EPA, 143 S. Ct. 1322, 1330 (2023).
Even negligent discharges in violation of a permit condition
can lead to “severe criminal penalties including
imprisonment,” as well as substantial civil penalties that
“can be nearly as crushing as their criminal counterparts.”
Id. (citing 33 U.S.C. § 1319(c)). Routine inclusion of such
a narrative condition in permits would thus automatically
require, in the event of excessive pollution from another
source, the immediate cessation of discharges involving the
same pollutant from all other sources, without regard to the
importance of those sources’ operations or, indeed, any other
consideration. But as the Supreme Court unanimously held
in Arkansas v. Oklahoma, the CWA has never been
construed as “mandat[ing] a complete ban on discharges into
a waterway that is [already] in violation of [water quality]
standards.” 503 U.S. at 108. As the Court noted, such an
automatic ban on any other discharges might impede other
important and competing objectives of the CWA. Id.
Application of regulatory judgment, using the “broad
authority” vested in the agency to address such a situation,
is more consistent with achieving the overall objectives of
the CWA than an automatic prohibition on any and all
discharges involving waters that, for whatever reason, may

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 59
happen to be out of compliance with water quality standards.
Id.2
Accordingly, I would vacate these two narrative
conditions, which are “arbitrary and capricious, an abuse of
discretion, or otherwise not in accordance with law.”
5 U.S.C. § 706(2)(A).
B
The various reasons offered by the majority for its
contrary conclusion all lack merit.
First, the majority notes that the Supreme Court in PUD
No. 1 upheld the inclusion of NPDES permit limitations that
use “broad, narrative terms.” See Opin. at 30 (quoting PUD
No. 1, 511 U.S. at 716). But that general proposition does
not address the further question of whether this particular
narrative limitation is consistent with the CWA. The Court’s
endorsement of broadly framed narrative conditions simply
does not support the agency’s wholesale erasure of the
distinction between the “limitations” to be crafted by the
agency and the ultimate water quality standards those
limitations are supposed to help to achieve. Indeed, the
contrast between the narrative conditions in this case and
2 The majority is therefore quite wrong when it goes further and says
that, not only is such a narrative condition consistent with the CWA, it
is “require[d]” by that statute. See Opin. at 29. That holding—viz., that
the CWA mandates such a prohibition on further discharges into a body
of water that is not compliant with applicable water quality standards—
is flatly contrary to Arkansas v. Oklahoma. The majority is likewise
wrong in contending that the transitional provisions of the CSO Control
Policy that govern “Phase I” permits required the inclusion of such a
narrative condition in this case. See Opin. at 29. Even assuming
arguendo that the majority’s construction of the relevant Phase I
provision were correct, it is irrelevant to the Phase II permit at issue here.

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60 CITY & COUNTY OF SAN FRANCISCO V. USEPA
those in PUD No. 1 only underscores this critical difference:
the specific limitation that the Court upheld in PUD No. 1
was not a vague instruction to ensure that water quality
standards were ultimately met, but a specific instruction to a
proposed hydroelectric project to maintain, in the river from
which the water was taken, “a minimum stream flow
requirement of between 100 and 200 [cubic feet per second]
depending on the season.” 511 U.S. at 709.
Second, the majority contends that this court’s prior
decisions have already upheld the validity of including such
a narrative condition in an NPDES permit. See Opin. at 30.
That is wrong. In the two cases cited by the majority, the
only question that was presented and resolved was whether,
in a situation in which such a condition has already been
included in a permit that has not been challenged by the
permittee, that condition is enforceable by private parties by
way of an action under § 505 of the CWA. See Northwest
Env’t Advocs. v. City of Portland, 56 F.3d 979, 990 (9th Cir.
1995) (holding that CWA § 505(a) “confer[s] jurisdiction
for citizen suits to enforce water quality standards when they
are conditions of a CWA permit” (emphasis added)); see also
Natural Res. Def. Council, Inc. v. County of Los Angeles,
725 F.3d 1194, 1205 (9th Cir. 2013) (“Our sole task at this
point of the case is to determine what Plaintiffs are required
to show in order to establish liability under the terms of this
particular NPDES permit.”); see also 33 U.S.C. § 1365(a)
(authorizing private civil actions against persons who are in
violation of a “limitation” imposed under the CWA).
Neither decision addressed the antecedent question of
whether such a condition, when timely challenged by the
permittee, is properly included in such a permit in the first
place. As the EPA conceded at oral argument, the only
circuit court to have addressed that question is the Second

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 61
Circuit, and it held that the condition was invalid for the
same reasons that I have already explained. See NRDC II v.
EPA, 808 F.3d at 577–80; see supra section II(A).3
* * *
For all of these reasons, I would grant San Francisco’s
petition, vacate the two challenged narrative conditions, and
remand to the agency.4
III
The third permit condition challenged here requires San
Francisco to “update its LTCP by implementing” five
enumerated tasks that the permit asserts are “based on” the
CSO Control Policy. Among other things, San Francisco is
required to undertake a “Consideration of Sensitive Areas”
and to develop “control alternatives,” including
infrastructure changes, for “eliminat[ing], relocat[ing], or
reduc[ing] the magnitude or frequency of discharges to
sensitive areas.” I agree with San Francisco that this
condition is contrary to law and must be set aside. See
5 U.S.C. § 706(2)(A).
A
As noted earlier, the CSO Control Policy is an unusual
document in that, under § 402(q)(1) of the CWA, it
effectively has the force of a statute. See 33 U.S.C.
3 The majority implausibly attempts to distinguish NRDC II on the
ground that in that case the narrative condition was challenged by a third
party rather than by the permittee. See Opin. at 32. But regardless of
which party is seeking greater regulatory clarification, the agency’s
abdication of its regulatory responsibility is equally indefensible.
4 I therefore have no occasion to address San Francisco’s further
argument that the EPA failed to follow its own procedures under 40
C.F.R. § 122.44(d) when it imposed these two narrative conditions.

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62 CITY & COUNTY OF SAN FRANCISCO V. USEPA
§ 1342(q)(1) (requiring that “[e]ach permit, order, or decree
issued pursuant to this chapter after December 21, 2000, for
a discharge from a municipal combined storm and sanitary
sewer shall conform to the Combined Sewer Overflow
Control Policy signed by the Administrator on April 11,
1994”). In my view, the EPA’s direction to San Francisco
to prepare an updated LTCP does not conform to the CSO
Control Policy’s limitations on when an amended LTCP may
be required. It therefore violates § 402(q)(1) of the CWA.
The EPA has previously and repeatedly recognized that
San Francisco developed an LTCP that, although spanning
multiple documents over several years, “demonstrated
compliance with section I.C.1 of the CSO Control Policy”
and that the City therefore was “not required to complete a
(new) CSO long-term plan.” See supra at 53–54. But in this
most recent permit, the EPA has concluded that San
Francisco must now complete a new LTCP. The question,
then, is whether the provisions of the CSO Control Policy
authorize the EPA to require the preparation of a new
“updated” LTCP in the current circumstances. The answer
is no.
As the CSO Control Policy acknowledges, the
preparation of an LTCP involves consideration of alternative
methods of CSO control that may include substantial and
costly infrastructure projects. See, e.g., 59 Fed. Reg. at
18693–94 (requiring consideration of “cost/performance”
considerations in evaluating options and providing for
consideration of a “permittee’s financial capability” when
establishing “[c]onstruction phasing”). It is therefore hardly
surprising that, in two respects, the Policy expressly
addresses the circumstances in which the agency may
require the preparation of an amended LTCP.

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 63
First, § I.C.1 of the Policy, which allows substantially
completed CSO control facilities to be exempted from the
“initial planning and construction provisions” governing
LTCPs, states that such permittees remain subject to the
Policy’s monitoring requirements and that, “[i]f after
monitoring, it is determined that WQS are not being attained,
the permittee should be required to submit a revised CSO
control plan that, once implemented, will attain WQS.” 59
Fed. Reg. at 18690 (emphasis added). Second, § IV.B.2.g of
the Policy states that the Phase II permits applicable to
permittees that have “completed development of the long-
term CSO control plan” must include a “reopener clause
authorizing the NPDES authority to reopen and modify the
permit upon determination that the CSO controls fail to meet
WQS or protect designated uses.” Id. at 18696. In the event
of such a determination, then “the permittee should be
required to develop, submit and implement, as soon as
practicable, a revised CSO control plan which contains
additional controls to meet WQSs and designated uses.” Id.
(emphasis added). As the plain language of these provisions
makes clear, there is only one circumstance in which a
permittee may be required to create a “revised CSO control
plan,” and that is when the water quality standards
established to protect the relevant designated uses are not
being attained.5
When the EPA included a permit condition requiring San
Francisco to update its LTCP, the EPA explained that it was
doing so for several enumerated reasons. However, none of
5 “Designated uses” refers to those “uses of the navigable waters
involved” that form the basis for the “water quality criteria” for those
waters. 33 U.S.C. § 1313(c)(2)(A); see generally PUD No. 1, 511 U.S.
at 714–15.

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64 CITY & COUNTY OF SAN FRANCISCO V. USEPA
those reasons involved (or otherwise referred to) a finding
that San Francisco’s Oceanside System had caused the
violation of any applicable water quality standards. Because
no such determination was made, the Policy’s trigger for
requiring submission of a revised LTCP has not been met.
The EPA therefore lacked authority under the Policy to
impose a condition requiring San Francisco to prepare and
submit a revised LTCP.
B
The majority pointedly does not contend that water
quality standards are not being met here. Instead, noting that
§ IV.B.2.g states that a revised LTCP may be required “upon
determination that the CSO controls fail to meet WQS or
protect designated uses,” 59 Fed. Reg. at 18696 (emphasis
added), the majority holds that this conjunctive phrasing
gives the EPA authority to require a new LTCP—even
where water quality standards are being met—if the EPA
determines that there nonetheless is, in some undefined
sense, a failure to “protect designated uses.” See Opin. at
40–41. The majority’s peculiar notion that the protection of
designated uses will be assessed independently of water
quality standards makes no sense. Under § 303 of the CWA,
the applicable “water quality criteria” contained in the
“water quality standards” are the measuring stick for
assessing whether “designated uses” are being protected. 33
U.S.C. § 1313(c)(2)(A); see also PUD No. 1, 511 U.S. at
714–18. Considered in context, § IV.B.2.g’s reference to
protecting “designated uses”—which are merely a
“component[]” of the broader concept of “water quality
standards,” see Upper Missouri Waterkeeper v. EPA, 15
F.4th 966, 969–70 (9th Cir. 2021)—thus adds nothing to the
concept of achieving water quality standards. And because
the EPA has not determined that water quality standards are

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 65
not being met, § IV.B.2.g did not authorize the EPA to
require a new LTCP.
The majority also claims that the EPA nonetheless
possesses such authority by virtue of § I.C.3 of the Policy,
see Opin. at 39–40, but that is wrong. The relevant language
cited by the majority states that, “[i]n the case of any ongoing
or substantially completed CSO control effort, the NPDES
permit or other enforceable mechanism, as appropriate,
should be revised to include all appropriate permit
requirements consistent with Section IV.B. of this Policy.”
See 59 Fed. Reg. at 18690. To the extent that the majority
thinks that § I.C.3 establishes a free-floating authority to
impose permit requirements without regard to § IV.B’s
provisions governing “NDPES Permit Requirements,” that
is plainly incorrect. On its face, § I.C.3 merely states that,
for partially exempted systems (such as San Francisco’s), the
NPDES permit should include “all appropriate permit
requirements consistent with Section IV.B. of this Policy.”
Id. (emphasis added). Any authority conferred by § I.C.3 to
impose permit conditions therefore remains subject to the
provisions of § IV.B. And, as I have explained, § IV.B of
the Policy expressly addresses the issue of preparation of a
revised LTCP, and it only authorizes requiring such a revised
plan “upon determination that the CSO controls fail to meet
WQS or protect designated uses.” Id. at 18696. Because
that condition is not satisfied here, the EPA’s imposition of
such a requirement is not “consistent with Section IV.B. of
this Policy” and is therefore not authorized by § I.C.3. Id.
The majority consequently errs in concluding that the
assertedly “outdated” nature of San Francisco’s LTCP is
“enough, by itself, to support EPA’s conclusion that an
updated LTCP is needed.” Opin. at 41–42. This holding
rewrites the CSO Control Policy rather than applies it.

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66 CITY & COUNTY OF SAN FRANCISCO V. USEPA
Perhaps the Policy should have included a broader provision
that gave the agency greater authority to require a new
LTCP, and perhaps Congress should have mandated such a
change before it adopted the 1994 Policy as the statutory
standard for permits involving combined sewer systems.
But, as written, the policy allows the agency to order a
revised LTCP only when a determination is made that the
permittee’s CSO controls have led to water quality
standards not being met. As explained, that condition has
not been established here. Merely labeling San Francisco’s
LTCP as “outdated” or “inadequate” in some more vague or
general sense is not enough.
Finally, I note that this conclusion does not leave the
agency powerless to address specific deficiencies in the
performance of San Francisco’s system, including with
respect to protection of sensitive areas. Section IV.B of the
Policy leaves the agency with ample authority to craft
targeted conditions addressed to the range of issues covered
by the provisions of that section. But absent a determination
that the permittee’s CSO controls have failed to meet water
quality standards, the agency may not take the much more
sweeping step of requiring a revision of the LTCP itself.
Such a condition is “not in accordance with law.” 5 U.S.C.
§ 706(2)(A).
* * *
Accordingly, I would grant the petition for review on this
issue as well and would vacate the current permit condition
requiring San Francisco to prepare an updated LTCP. I
would do so without prejudice to the agency’s re-evaluation
of whether particular targeted components of that LTCP-
revision condition could be adopted as free-standing
conditions consistent with § IV.B of the Policy.

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CITY & COUNTY OF SAN FRANCISCO V. USEPA 67
IV
For the foregoing reasons, I would grant San Francisco’s
petition for review, vacate the challenged permit conditions,
and remand this case to the agency for further consideration.
I respectfully dissent.

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