When it comes to the environment, Sunnyvale and Mountain View have a pretty green image, spending millions on bike lanes, solar energy and electric vehicle charging stations.
But their tactics in an ongoing court case — in which their lawyers claimed major Bay Area creeks should not be protected from pollution under the federal Clean Water Act — are raising eyebrows among environmentalists.
“It’s disappointing,” said Eric Buescher, an attorney for San Francisco Baykeeper, a nonprofit group that works to reduce pollution in San Francisco Bay. “We think the cities should be better stewards of the streams and creeks they are charged with protecting.”
The Clean Water Act is one of America’s landmark environmental laws. Passed by Congress in 1972, it prohibits the discharge of pollutants like chemicals, sewage, garbage and toxic waste into creeks, rivers, lakes and bays without a federal permit.
In 2020, Baykeeper sued Sunnyvale and Mountain View, saying they have been violating the Clean Water Act for years by discharging raw sewage and polluted stormwater into creeks, sending bacteria pollution to levels more than 50 times legal limits.
The group tested water samples and found dangerous levels of E. coli, fecal coliform and other pollutants in Stevens Creek, Calabazas Creek, Sunnyvale East Channel and Guadalupe Slough, all of which empty into San Francisco Bay where people swim and boat.
Like other cities in the Bay Area, both Sunnyvale and Mountain View treat their sewage at wastewater plants before releasing it into the bay. But the suits claimed that miles of aging underground clay sewer pipes throughout the two cities are cracked and leaking untreated sewage into storm drain systems, which empty into the creeks.
In September 2022, U.S. District Court Judge Edward Davila in San Jose agreed. He ruled that the cities had violated the Clean Water Act. They faced millions in potential fines and penalties.
But the following summer, the U.S. Supreme Court issued a major ruling of its own. In a 5-4 decision written by Justice Samuel Alito, the court limited the federal government’s ability to regulate pollution under the Clean Water Act.
The court ruled in favor of an Idaho couple, Chantell and Michael Sackett, who sued the U.S. Environmental Protection Agency when the agency told them they needed to obtain a permit to fill a wetland on their 1-acre property to build a house.
The Supreme Court ruled that wetlands only qualify for protection under the Clean Water Act if they have a “continuous surface connection” to larger bodies of water like streams, lakes or bays. Environmental groups and California officials blasted the decision, which developers had sought for years, saying it could mean millions of acres of wetlands nationwide could lose protection.
Seeing an opportunity, Mountain View and Sunnyvale asked Judge Davila for a second chance.
In a brief last July, Melissa Thorme, a Sacramento attorney hired by the cities, along with Sunnyvale City Attorney John Nagel and Jennifer Logue, Mountain View’s assistant city attorney, argued that the Supreme Court ruling “fundamentally changes the landscape of this case.”
They argued that because Stevens Creek, Calabazas Creek and the Sunnyvale East Channel run dry for some parts of the year, the creeks don’t have a continuous connection with San Francisco Bay and should not fall under the Clean Water Act.
They went further, embracing an argument that Justice Clarence Thomas had pushed, but which was not endorsed by the conservative majority, that only bodies of water that boats can navigate should be bound by the law’s pollution protections.
In December, Davila rejected their arguments. He noted that the creeks are tributaries of San Francisco Bay, which is protected under the Clean Water Act, and as such, the creeks are covered too, even under the Supreme Court’s recent narrowing of the law. He scheduled an August trial to determine other issues in the case and potential fines.
Environmental groups called the cities’ tactics an unseemly attempt to avoid having to pay to upgrade their sewer pipes and storm drain systems.
“Stevens Creek is a major waterway for wildlife, fish and public recreation,” said Katja Irvin, conservation chair for the Sierra Club’s Guadalupe Group. “It’s significant and we should do everything we can to protect it. If we said the Clean Water Act didn’t apply to streams like this, that would make it really, really hard to clean up nearly any streams in the Bay Area. You have to hold polluters accountable.”
The cities say the court arguments don’t mean they want to weaken environmental safeguards. In a written statement, Jennifer Garnett, a Sunnyvale spokeswoman, and Brian Babcock, a Mountain View spokesman, said:
“The briefs that the cities of Sunnyvale and Mountain View filed last summer were not intended to suggest that the water quality and beneficial uses of our local creeks and channels are not to be protected. We do not take and have never taken that position. Rather, the intent was to ensure that the correct laws are applied to these waterways based on a new U.S. Supreme Court decision at that time.”
In 2022, officials with the San Francisco Bay Regional Water Quality Control Board issued a new stormwater permit for more than 80 Bay Area cities and local government agencies. The board put in tougher rules for Mountain View and Sunnyvale than other cities, saying they must conduct regular water testing on their creeks, submit annual reports and meet water quality standards by 2027.
“We continue to take water quality protection very seriously and are working diligently to identify sources of bacteria and control them where possible,” Garnett and Babcock said.
Buescher of Baykeeper said they need to do more.
“A lot of this is deferred maintenance,” he said. “The cities have decided they want to kick it down the road.”
