An environmental watchdog is pressing forward with lawsuits against the cities of Mountain View and Sunnyvale in an effort to get them to clean up local creeks. Court filings earlier this year show ongoing disputes between the parties, with cities requesting a judge dismiss the case following a recent Supreme Court ruling.

In 2020, San Francisco Baykeeper, a nonprofit organization, filed lawsuits against Mountain View and Sunnyvale, alleging that they violated the federal Clean Water Act (CWA) by releasing raw sewage and polluted storm water into creeks that empty into the Bay.

As part of its advocacy work, Baykeeper regularly monitors and collects water samples from the Bay Area’s watersheds. In the case of Mountain View, it found bacteria pollution levels in Stevens Creek that far exceeded the legal limit, with particularly high concentrations of E. Coli, according to the lawsuit.

Baykeeper attributed the high pollution levels to the city’s aging clay sewer pipes, which are susceptible to cracking over time, the lawsuit said. As a result, sewage can seep into the ground and enter the city’s stormwater system that then flows untreated into creeks and eventually the South San Francisco Bay. The lawsuit also identified stormwater runoff from streets as another source of pollution.

Baykeeper claims the Clean Water Act violations have been occurring since 2014. If proven true, the allegations could lead to hefty fines of up to $54,833 per day, according to the lawsuit.

The city of Mountain View recently declined to comment about the case. “Since this is ongoing litigation, the City cannot comment at this time,” said Deputy Communications Officer Brian Babcock. In 2020, the city offered a statement to the Voice about the lawsuit affirming its commitment to keep local creeks safe and to protect public health and safety.

"The city is carefully reviewing Baykeeper's allegations while continuing to meet with them and keeping an open dialogue. We are evaluating next steps with the goal of a timely and appropriate resolution,” the city said at the time.

Mountain View and Sunnyvale later asked the court to dismiss the lawsuits, arguing that they could not be held accountable for the alleged violations, according to Baykeeper Communications Director Mark Westlund. In both cases, the court denied the requests, Westlund said in an emailed statement.

Two years later, in 2022, Baykeeper won a summary judgment for its claims that the cities contributed to an exceedance of bacteria in the water, as a result of discharges from their stormwater system. Baykeeper also filed an amendment to its lawsuit, stating that the cities violated the Clean Waters Act by discharging human waste through their stormwater systems, Westlund said.

But the case’s legal standing could change with a recent Supreme Court ruling. In the case of Sackett v. EPA, the court narrowed the criteria for what kinds of wetlands and waterways qualify as “waters of the United States” or WOTUS. The ruling could impact what bodies of water are protected by the Clean Water Act.

Based on what Westlund described as an aggressive interpretation of Sackett v. EPA, the cities of Mountain View and Sunnyvale filed another motion to dismiss the lawsuits. They claim their creeks are not waters of the United States, he said, and therefore not subject to the federal jurisdiction of the Clean Water Act.

Baykeeper has refuted the argument that the creeks are not WOTUS. In a recent court filing, it states that “protection still exists for seasonal rivers, creeks, and streams that are tributaries to covered waters.” This includes Stevens Creek, according to the filing, as it flows for the majority of the year and has a surface connection with the South San Francisco Bay, which is indisputably WOTUS and protected by the Clean Water Act, it said.

“Baykeeper has spent years investigating and attempting to bring the Cities into compliance with their legal obligations to protect local waterways – just as the CWA intended,” it added.

The city of Mountain View discussed the Baykeeper lawsuit in closed session at a council meeting on October 24. It did not report on its deliberations.

The case is expected to go to trial in August 2024, according to Westlund.