Baykeeper Update

Federal Court Win: West Bay Liable for Sewage Spills

In a case brought by San Francisco Baykeeper against the West Bay Sanitary District in December 2009, U.S. District Court Judge Edward Chen has found West Bay liable for 21 illegal sewage spills that flowed directly into area creeks and sloughs over the past five years. West Bay serves Menlo Park, Atherton, Portola Valley, East Palo Alto and Woodside, as well as unincorporated areas of San Mateo and Santa Clara Counties.

The court also found those spills to illustrate a systemic problem with West Bay’s sewage collection pipes that would have to be fixed and that the District could incur Clean Water Act penalties of up to $975,000. If West Bay presses forward with trial, it could face penalties of $37,500 per day of violation of the Clean Water Act for an additional 68 spills.

Read the San Francisco Chronicle article here: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2011/05/25/BA7H1JKCTO.DTL

West Bay’s Expensive & Meritless Legal Defense

Rather than investing in needed repairs to upgrade its sewer pipes and stop polluting waterways, West Bay has used ratepayer funds to engage in a maximum litigation strategy, including disputing facts from its own records and raising multiple frivolous and meritless arguments. West Bay has so far paid more than $350,000 to its attorneys in seeking to avoid responsibility for its violations and has forced Baykeeper to spend even more in order to secure West Bay’s compliance with the Clean Water Act. Now that the court has found West Bay liable for sewage spills, the agency must reimburse all of Baykeeper’s legal costs to date.

West Bay is paying for this litigation with its sewer fund, which is made up of fees levied on ratepayers to cover the cost of repairs and maintenance of the sewer system. Even after spending nearly five million dollars on office renovations last year, West Bay had amassed $14 million in ratepayer fees by avoiding necessary repairs to the system. The needed upgrades to the West Bay system would cost approximately $16 million over five years – nearly the same amount as was available in the sewer fund before the District embarked on an expensive and futile legal defense.

West Bay’s defense included some bizarre legal theories, including a claim that its watershed was not covered by the Clean Water Act, which was quickly dispensed with in yesterday’s ruling. West Bay also claimed that Baykeeper’s members should not be able to bring a Clean Water Act suit because they were not actually harmed by West Bay’s sewage spills, but the court ruled against West Bay on that claim as well, affirming that our members were harmed by having their recreational fishing and kayaking limited and by infections from bacterial contamination after coming into contact with polluted waters.

In one surprising development, West Bay employees refused to answer even the most basic questions during depositions, citing their constitutional right not to incriminate themselves under the 5th Amendment – raising the possibility that they are aware of deliberate wrongdoing by the District.

Under the Clean Water Act, municipal sewer systems cannot discharge untreated sewage to waterways. Because liability is so clear in these cases, more than a dozen cities and sewage districts have reached agreements with Baykeeper to comply with the Clean Water Act after we initiated sewage spill enforcement actions. (Read more about improvements secured through our previous victories against sewage polluters.) West Bay alone continues to flout its legal obligations.

Baykeeper is willing to go to trial to defend the Bay against West Bay’s pollution. Preferably, however, West Bay will acknowledge its clear liability and agree to significantly reduce its sanitary sewer overflows; proactively inspect, repair and clean its sewer system; and provide mitigation funding to benefit the health of the San Francisco Bay watershed in order to help offset the harm done by its sewage spills.

West Bay’s Pollution

According to State Water Resources Control Board records, West Bay reported more than 300 sewer overflows between 2004 and 2010 that caused 60,000 gallons of sewage to flow into local creeks and sloughs, or to city-owned storm drains, which are built to drain to creeks and San Francisco Bay.

Spills from the West Bay system have contaminated San Francisquito Creek, Los Trancos Creek, Corte Madera Creek, Redwood Creek, Bovet Creek, Atherton Channel, Bayfront Canal, Ravenswood Slough, Westpoint Slough and San Francisco Bay. San Francisquito Creek is a critical part of the migratory path of steelhead, a threatened species under the federal Endangered Species Act. Where Ravenswood Slough and West Point Slough empty into San Francisco Bay, the Bay has diverse fauna vulnerable to pollution, including more than 100 species of fish. It is also an important spawning and larval nursery area for northern anchovy, the most abundant fish in the Bay.

Spills of untreated sewage include: organic matter that causes oxygen depletion; nutrients such as nitrogen and phosphorus that stimulate algae blooms; synthetic fragrance chemicals and pharmaceutical products that can impair growth and cause reproductive anomalies in wildlife; disease-causing pathogenic bacteria and viruses; suspended solids that contribute excess sediments to streams; and toxic heavy metals such as mercury that accumulate in the food web.

These factors lower the water quality of habitat in creeks and sloughs. Persistent and biomagnifying substances will have negative impacts on water quality and organisms in the Bay. Small fish that feed on contaminated prey will be affected directly. Small fish that swim to another part of the Bay and are eaten by a larger predator such another fish, a bird or a mammal will spread the contaminants to those animals. And where wetland restoration projects are occurring, such as Corte Madera Creek and Ravenswood Slough, the degraded water quality in the stream feeding the wetlands will make restoration more difficult and less likely to succeed.