Sunnyvale Pollution Lawsuit

Case 5:20-cv-00824 Document 1 Filed 02/04/20 Page 1 of 19
1 Jason R. Flanders (Bar No. 238007)

Erica A. Maharg (Bar No. 279396)
2 Aqua Terra Aeris (ATA) Law Group
490 43rd Street, Suite 108
3 Oakland, California 94609
Telephone: (510) 473-8793
4 Email: jrf@atalawgroup.com
Email: eam@atalawgroup.com
5
6 Daniel Cooper (Bar No. 153576)
Cooper & Lewand-Martin, Inc.
7 1004-B O’Reilly Avenue
San Francisco, California 94129
8 Telephone: (415) 360-2962
Email: daniel@cooperlewand-martin.com
9
Christopher Len (Bar No. 257052)
10 Nicole C. Sasaki (Bar No. 298736)
11 SAN FRANCISCO BAYKEEPER
1736 Franklin Street, Suite 800
12 Oakland, California 94612
Telephone: (510) 735-9700
13 Facsimile: (510) 735-9160
Email: chris@baykeeper.org
14 Email: nicole@baykeeper.org
15
Attorneys for Plaintiff
16 SAN FRANCISCO BAYKEEPER
17 UNITED STATES DISTRICT COURT

18
NORTHERN DISTRICT OF CALIFORNIA
19
SAN JOSE DIVISION
20
SAN FRANCISCO BAYKEEPER, a California Civil Case No.:
21 non-profit corporation,
COMPLAINT FOR DECLARATORY
22 AND INJUNCTIVE RELIEF AND
Plaintiff,
CIVIL PENALTIES
23
v. (Federal Water Pollution Control Act,
24 33 U.S.C. § 1251 et seq.)
CITY OF SUNNYVALE, a municipality; and
25 SUNNYVALE ENVIRONMENTAL SERVICES
DEPARTMENT, a municipal department,
26
27 Defendants.
28
Complaint 1
1 San Francisco Baykeeper (“Baykeeper” or “Plaintiff”), by and through its counsel, hereby
2 alleges:
3 I. INTRODUCTION
4 1. This is a civil action brought under the citizen suit enforcement provisions of the Federal
5 Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (“Clean Water Act” or “CWA”), to address the
6 unlawful discharge of bacteria pollution by the Defendant City of Sunnyvale and its Department of
7 Environmental Services (collectively, “Sunnyvale” or “the City”) from the City’s municipal separate
8 storm sewer system (“MS4”). Sunnyvale’s repeated and ongoing violations of the Municipal Regional
9 Stormwater NPDES Permit, NPDES Permit No. CAS612008, Order No. R2-2015-0049, California
10 Regional Water Quality Control Board San Francisco Bay Region (“MS4 Permit” or “Permit”), have
11 adversely affected the water quality and beneficial uses of local waterways, including Stevens Creek,
12 Calabazas Creek, Sunnyvale East Channel, Guadalupe Slough, and South San Francisco Bay. Baykeeper
13 seeks a declaratory judgment, injunctive relief, the imposition of civil penalties, and an award of costs,
14 including attorney and expert witness fees, for these violations.
15 II. JURISDICTION AND VENUE
16 2. This Court has subject matter jurisdiction over the parties and this action pursuant to 33
17 U.S.C. § 1365(a)(1) (the Clean Water Act citizen suit provision), 28 U.S.C. § 1331 (an action arising
18 under the laws of the United States), and 28 U.S.C. § 2201 (declaratory relief).
19 3. On December 4, 2019, Baykeeper provided notice of intent to file suit against Sunnyvale
20 for its violations of the Clean Water Act (“Notice Letter”) pursuant to 33 U.S.C. § 1365(b).
21 4. As required by 40 C.F.R. § 135.2(a)(2), Baykeeper sent the Notice Letter to the owners
22 and operators of the City of Sunnyvale municipal separate storm sewer system (“Sunnyvale MS4”) and
23 the owners and operators of the City of Sunnyvale sewage collection system (“Collection System”);
24 specifically, the Sunnyvale City Manager and the Director of the Environmental Services Department.
25 Baykeeper also sent the Notice Letter to the Administrator of the United States Environmental
26 Protection Agency (“EPA”), the Administrator of EPA Region IX, the Executive Director of the State
27 Water Resources Control Board (“State Board”), and the Executive Officer of the Regional Water
28 Quality Control Board, San Francisco Bay Region (“Regional Board”) (collectively, “State and Federal
Complaint 2
1 agencies”), as required by section 505(b) of the CWA, 33 U.S.C. § 1365(b)(1)(A). The Notice Letter is
2 attached as Appendix A and is incorporated herein by reference.
3 5. More than sixty (60) days have passed since the Notice Letter was mailed to Sunnyvale
4 and the State and Federal agencies.
5 6. Baykeeper is informed and believes, and thereon alleges, that neither EPA nor the State
6 of California has commenced or is diligently prosecuting an action to redress the violations alleged in
7 the Notice Letter and in this Complaint. See 33 U.S.C. § 1365(b)(1)(B). This action is not barred by any
8 prior administrative penalty under section 309(g) of the CWA, 33 U.S.C. § 1319(g).
9 7. Venue is proper in the Northern District of California pursuant to section 505(c)(1) of the
10 CWA, 33 U.S.C. § 1365(c)(1), because the source of the violations is located within this judicial district.
11 III. INTRADISTRICT ASSIGNMENT
12 8. Pursuant to L.R. 3-2(c) and (e), intradistrict assignment of this matter to the San Jose
13 Division of the Court is appropriate because the events or omissions which give rise to Plaintiff’s claims
14 occurred in Santa Clara County. No event or omission giving rise to Baykeeper’s claims occurred within
15 the jurisdiction of any other Division of this Court.
16 IV. PARTIES
17 A. San Francisco Baykeeper
18 9. Plaintiff Baykeeper is a non-profit public benefit corporation organized under the laws of
19 the State of California with its main office in Oakland, California. Baykeeper’s approximately 3,500
20 members live and/or recreate in and around the San Francisco Bay area. Baykeeper’s mission is to
21 protect San Francisco Bay from the biggest threats and hold polluters accountable. Baykeeper patrols on
22 the water, investigates and stops polluters, and strengthens laws that protect the Bay. Baykeeper is
23 dedicated to preserving, protecting, and defending the environment, wildlife, and natural resources of
24 San Francisco Bay and its tributaries for the benefit of its ecosystems and communities. Baykeeper
25 furthers its goals through education, advocacy, restoration, and directly initiates enforcement of
26 environmental laws on behalf of itself and its members.
27 10. Baykeeper’s office is located at 1736 Franklin Street, Suite 800, Oakland, California
28 94612.
Complaint 3
1 11. Baykeeper has over 3,500 members who use and enjoy San Francisco Bay, its tributaries,
2 and other waters for various recreational, educational, scientific, conservation, aesthetic, spiritual and
3 other purposes.
4 12. Baykeeper’s members, including citizens, taxpayers, property owners, and residents, live,
5 work, and travel near, and recreate in, San Francisco Bay and its tributaries and recreate in or near the
6 Bay shoreline and waters into which Sunnyvale discharges pollutants, including, but not limited to,
7 South San Francisco Bay, Stevens Creek, Calabazas Creek, Sunnyvale East Channel, Guadalupe Slough,
8 and other waters that drain to South San Francisco Bay (collectively, the “Receiving Waters”).
9 13. Baykeeper’s members use and enjoy the Receiving Waters and the adjacent areas to the
10 waters to sail, swim, windsurf, stand up paddleboard, picnic, fish, and hike; to conduct scientific study
11 and research; for aesthetic enjoyment; and to enjoy wildlife.
12 14. Sunnyvale’s failure to comply with the substantive requirements of the MS4 Permit
13 and/or the Clean Water Act, including but not limited to Sunnyvale’s discharge of polluted stormwater,
14 polluted dry-weather flows, raw sewage, and other pollutants via the Sunnyvale MS4 to the Receiving
15 Waters, as well as Sunnyvale’s failure to develop and implement programs to effectively control and
16 monitor these discharges, negatively impacts and impairs Baykeeper’s members’ use and enjoyment of
17 the Receiving Waters and the adjacent areas.
18 15. The interests of Baykeeper’s members have been, are being, and will continue to be
19 adversely affected by Sunnyvale’s failure to comply with the Clean Water Act and the MS4 Permit. The
20 relief sought herein will redress the harms to Plaintiff caused by Sunnyvale’s activities.
21 16. Continuing commission of the acts and omissions alleged herein will irreparably harm
22 Baykeeper’s members, for which harm they have no plain, speedy, or adequate remedy at law.
23 17. Baykeeper has one or more members who use, explore, and recreate in areas impacted by
24 the stormwater pollution herein at issue and could sue in their own right. Some of Baykeeper’s
25 members will suffer recreational, aesthetic, or other environmental injuries due to Sunnyvale’s pollution.
26 Baykeeper’s members use and enjoy South San Francisco Bay, Stevens Creek, Calabazas Creek,
27 Sunnyvale East Channel, and Guadalupe Slough for recreational, scientific, and aesthetic purposes and
28 would reasonably cease these activities should South San Francisco Bay’s water quality become too
Complaint 4
1 degraded. Baykeeper’s injuries-in-fact are fairly traceable to Sunnyvale’s conduct and would be
2 redressed by the requested relief.
3 18. Neither the claims brought by Baykeeper nor the relief Baykeeper requests requires the
4 participation of individual members.
5 B. The City of Sunnyvale
6 19. Baykeeper is informed and believes, and thereon alleges, that the City of Sunnyvale is a
7 municipality formed under the laws of the State of California.
8 20. Baykeeper is informed and believes, and thereon alleges, that the City of Sunnyvale
9 maintains offices at 456 W. Olive Avenue, Sunnyvale, California 94086 as well as at 221 Commercial
10 Street, Sunnyvale, California 94085.
12 and/or its Department of Environmental Services are the owners of the Sunnyvale MS4.
14 and/or its Department of Environmental Services are the operators of the Sunnyvale MS4.
16 and/or its Department of Environmental Services are the owners of the Sunnyvale Collection System.
18 and/or its Department of Environmental Services are the operators of the Sunnyvale Collection System.
19 V. LEGAL BACKGROUND
20 A. The Clean Water Act

21 25. Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a), prohibits the discharge of
22 any pollutant into waters of the United States unless the discharge complies with various enumerated
23 sections of the CWA. Specifically, section 301(a) prohibits discharges not authorized by, or in violation
24 of, the terms of a National Pollutant Discharge Elimination System (“NPDES”) permit issued pursuant
25 to section 402 of the CWA, 33 U.S.C. § 1342.
26 26. The “discharge of a pollutant” means, among other things, the addition of a pollutant to
27 “waters of the United States” from any “point source.” 33 U.S.C. § 1362(12); 40 C.F.R. § 122.2.
28 27. The term “pollutant” includes “dredged spoil, solid waste, incinerator residue, sewage,
Complaint 5
1 garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat,
2 wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste
3 discharged into water.” 33 U.S.C. § 1362(6); 40 C.F.R. § 122.2.
4 28. “Waters of the United States” are defined as “navigable waters,” and “all waters which
5 are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce,
6 including waters which are subject to the ebb and flow of the tide.” 33 U.S.C. § 1362(7); 40 C.F.R.
7 § 122.2.
8 29. The term “point source” means any “discernible, confined and discrete conveyance,
9 including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container,
10 rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which
11 pollutants are or may be discharged.” 33 U.S.C. § 1362(14); 40 C.F.R. § 122.2.
12 30. An MS4 is defined as “a conveyance or system of conveyances (including roads with
13 drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm
14 drains)” owned or operated by a State, city, or town that is “designed or used for collecting or conveying
15 storm water” and “that discharges to waters of the United States.” 40 C.F.R. § 122.26(b)(8); see also id.
16 § 122.26(b)(18).
17 31. Section 402(b) of the CWA, 33 U.S.C. § 1342(b), allows each state to administer its own
18 EPA-approved NPDES permit program for regulating the discharge of pollutants, including discharges
19 of polluted stormwater.
20 32. In California, the State Board and its nine Regional Boards have approval from EPA to
21 administer its NPDES permit program for the State. Under this authority, the State Board and Regional
22 Boards issue NPDES permits in the State to regulate water pollutant discharges.
23 33. Section 402(p) of the CWA, 33 U.S.C. § 1342(p), requires an NPDES permit for
24 stormwater discharges from an MS4 to waters of the United States.
25 34. Section 402(p)(3)(B) requires NPDES permits for discharges from MS4s to effectively
26 prohibit non-stormwater discharges into storm sewers and to include “controls that reduce the discharge
27 of pollutants [to receiving waters] to the maximum extent practicable, […] and such other provisions as
28 the Administrator or the State determines appropriate for the control of such pollutants.” 33 U.S.C. §
Complaint 6
1 1342(p)(3)(B).
2 35. The MS4 Permit is an NPDES permit issued by the Regional Board pursuant to section
3 402(p) of the CWA, 33 U.S.C. § 1342(p).
4 36. Violations of the MS4 Permit are also violations of the CWA. MS4 Permit, Attachment
5 G, Paragraph C.2; see also MS4 Permit, Section C.19 (stating that permittees must comply with the
6 standard provisions in Attachment G).
7 37. Section 505(a)(1) of the CWA, 33 U.S.C. § 1365(a)(1), provides for citizen enforcement
8 actions against any “person” for violations of NPDES permit requirements and for unpermitted
9 discharges of pollutants. See 33 U.S.C. §§ 1365(a)(i), 1365(f).
10 38. The City of Sunnyvale is a “person” within the meaning of section 502(5) of the CWA,
11 33 U.S.C. § 1362(5).
12 39. An action for injunctive relief is authorized under section 505(a) of the CWA, 33 U.S.C.
13 § 1365(a).
14 40. Each separate violation of the Clean Water Act subjects the violator to a penalty of up to
15 $37,500.00 per day for violations occurring between October 25, 2014 and November 1, 2015, and
16 $54,833.00 per day per violation for violations that occurred after November 2, 2015. 33 U.S.C. §
17 1319(d); Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. §§ 19.1-19.4.
18 41. Section 505(d) of the CWA, 33 U.S.C. § 1365(d), permits prevailing or substantially
19 prevailing parties to recover litigation costs, including attorneys’ fees, experts’ fees, and consultants’
20 fees.
21 B. The MS4 Permit’s Discharge Prohibitions and Receiving Water Limitations
22 42. The MS4 Permit regulates discharges to and from municipal storm sewer systems
23 throughout the San Francisco Bay Area, including the Sunnyvale MS4.
24 43. Sunnyvale is subject to the terms and conditions of the MS4 Permit.
25 44. The MS4 Permit allows Sunnyvale to discharge stormwater runoff from storm drains and
26 other stormwater conveyances within its jurisdiction, if the discharges comply with the discharge
27 prohibitions, receiving water limitations, and all other requirements of the MS4 Permit.
28 45. Discharge Prohibition A.1. of the MS4 Permit requires that Sunnyvale effectively
Complaint 7
1 prohibit discharges of non-stormwater into the Sunnyvale MS4 and into watercourses.
2 46. Receiving Water Limitation B.1. of the MS4 Permit prohibits certain discharges that
3 create a condition of nuisance or adversely affect beneficial uses of State waters.
4 47. Receiving Water Limitation B.2. of the MS4 Permit prohibits discharges that cause or
5 contribute to a violation of any applicable water quality standard for receiving waters.
6 48. Beneficial uses of waterways are the resources, services, and qualities of these aquatic
7 systems that are the ultimate goals of protecting and achieving high water quality. Water Quality Control
8 Plan, San Francisco Basin (Region 2) (“Basin Plan”), Chapter 2.
9 49. Water quality standards (“WQS”) include pollutant concentration levels determined by
10 the State Board, the various Regional Boards, and the EPA to be protective of the beneficial uses of the
11 waters that receive polluted discharges.
12 50. The WQS applicable to Sunnyvale include, but are not limited to, those set out in (1) the
13 Regional Board’s Basin Plan, Chapter 3; (2) Part 3 of the State Board’s Water Quality Control Plan for
14 Inland Surface Waters, Enclosed Bays and Estuaries of California: Bacteria Provisions and a Water
15 Quality Standards Variance Policy (“Bacteria Provisions”); and (3) EPA’s Criteria for Priority Toxic
16 Pollutants for the State of California (“California Toxics Rule”), 40 C.F.R. § 131.38.
17 51. Discharges above applicable WQS contribute to the impairment of the Receiving Waters’
18 beneficial uses.
19 VI. FACTUAL BACKGROUND
20 A. Sunnyvale MS4 and Discharges of Bacteria
21 52. The Sunnyvale MS4 consists of the streets, curbs, gutters, drop inlets, underground pipes,
22 concrete channels, and other structures that collect and convey stormwater and non-stormwater in and
23 around the City of Sunnyvale.
24 53. The Sunnyvale MS4 includes approximately 244 miles of storm drain pipes.
25 54. The storm drain pipes and other conveyances in the Sunnyvale MS4 connect directly to
26 the Receiving Waters.
27 55. Discharges from the Sunnyvale MS4 are not treated prior to entering the Receiving
28 Waters.
Complaint 8
1 56. Sunnyvale is responsible for ensuring that discharges to and from the Sunnyvale MS4 do
2 not violate the MS4 Permit. While operating and maintaining the Sunnyvale MS4, Sunnyvale is
3 responsible for collecting and conveying stormwater through the MS4, preventing non-stormwater
4 materials (including raw sewage exfiltrating from the Collection System) from entering the Sunnyvale
5 MS4, conducting routine maintenance, cleaning and inspecting the Sunnyvale MS4, and responding to
6 citizen complaints related to the storm drain system.
7 57. Each time it rains, polluted stormwater from streets, sidewalks, parking lots, and other
8 urban infrastructure in Sunnyvale discharge directly to the Receiving Waters via the Sunnyvale MS4.
9 Non-stormwater flows also discharge from the Sunnyvale MS4 to the Receiving Waters.
10 58. Fecal indicator bacteria in concentrations above the water quality objectives for E. Coli,
11 enterococci, fecal coliform, and total coliform (collectively, “Bacteria”) adversely affect the aquatic
12 organisms, people consuming those organisms or water, and the current or potential beneficial uses of
13 the Receiving Waters.

14 59. Targeted epidemiological studies have shown a number of adverse health outcomes
15 associated with fecally-polluted water resulting in a significant burden of disease and economic loss.
16 Studies conducted worldwide have correlated gastrointestinal symptoms to recreating in water with high
17 Bacteria counts. California-specific studies show a higher incidence of upper respiratory and
18 gastrointestinal symptoms associated with swimming in the vicinity of storm drains contaminated with
19 high Bacteria counts.
20 60. Sunnyvale discharges bacteria from the MS4 every time precipitation causes runoff in the
21 Sunnyvale MS4.
22 B. Sunnyvale’s Collection System and Discharges of Raw Sewage
23 61. Sunnyvale’s Collection System is comprised of the Donald M. Sommers Water Pollution
24 Control Plant (“Plant”) and the City of Sunnyvale’s Collection System. Collected wastewater is
25 conveyed to the Plant by 2.03 miles of force mains consisting of five (5) main trunklines. The
26 wastewater conveyed to the Plant is then treated and subsequently discharged into Moffett Channel, a
27 tributary to South San Francisco Bay via Guadalupe Slough. The Collection System is a point source
28 under the Clean Water Act. See 33 U.S.C. § 1362(14).
Complaint 9
1 62. The Collection System consists of approximately 310 miles of gravity sewer pipes and
2 279 miles of private laterals. The Collection System pipes range in size from 4 to 48 inches in diameter.
3 The Collection System includes approximately 7,133 manholes. The Collection System includes five (5)
4 pump stations. At least nine (9) percent of the existing sanitary sewer mains in the Collection System are
5 older than 20 years old. At least seven (7) percent of the existing sanitary sewer mains in the Collection
6 System are older than 60 years old. Approximately 83 percent of the sanitary sewer segments in the
7 Collection System do not have recorded ages, and two (2) percent are inaccessible.
8 63. Data available to Baykeeper indicates 96.2 percent of the system is comprised of
9 vitrified clay pipes. Vitrified clay pipes are susceptible to cracking and leakage.
10 64. Sunnyvale is responsible for operating and maintaining the Collection System. To operate
11 the Collection System, Sunnyvale undertakes tasks such as, but not limited to, collecting and conveying
12 raw sewage through the Collection System, conducting routine maintenance, cleaning and inspecting the
13 Collection System, designing and implementing necessary capital improvements, and responding to
14 sanitary sewer overflows (“SSOs”).
15 65. Raw sewage discharges, or exfiltrates, from the Collection System underground via
16 structural defects, such as cracks, displaced joints, holes, and other leakage points, in the Collection
17 System. Raw sewage that exfiltrates from the Collection System in areas where the Collection System is
18 in proximity to the Sunnyvale MS4 has the potential to enter the MS4 via cracks, displaced joints, and
19 other compromised portions of the MS4. Raw sewage that reaches the Sunnyvale MS4 through
20 exfiltration flows untreated to the Receiving Waters.

21 66. Raw sewage discharges from the Collection System to the MS4 via SSOs. SSOs have
22 many causes including, but not limited to, blockages in the pipes caused by roots, grease and foreign
23 debris, as well as structural damage to pipes such as off-set joints and broken pipes. SSOs can also be
24 caused by inadequate flow capacity. SSOs discharge from manholes, clean outs, or other surface
25 structures of the Collection System or private laterals.
26 C. The Receiving Waters
27 67. The storm drain pipes and other conveyances in the Sunnyvale MS4 discharge to Stevens
28 Creek, Calabazas Creek, Sunnyvale East Channel, and other local waterbodies that are tributaries to
Complaint 10
1 these waters.
2 68. Stevens Creek flows from Stevens Creek Reservoir, northward for a total of 12.5 miles
3 through the foothills in the cities of Cupertino and Los Altos, across the alluvial plain through the cities
4 of Sunnyvale and Mountain View and then discharges into South San Francisco Bay north of Moffett
5 Field Naval Air Station.
6 69. Stevens Creek is an important ecological resource, as it is one of the last remaining viable
7 habitats for federally-threatened Central California Coast Steelhead. The federally-endangered
8 California clapper rail and salt marsh harvest mouse live in the brackish reaches of the Creek. There is a
9 conservation area dedicated to the western burrowing owl, a species of concern under the Migratory
10 Bird Treaty Act, where Stevens Creek reaches South San Francisco Bay.
11 70. Calabazas Creek is a 13.3-mile-long creek originating from the northeast-facing slopes of
12 the Santa Cruz Mountains, flowing through a small portion of unincorporated Santa Clara County, and
13 then through the cities of Saratoga, Cupertino, Sunnyvale, San Jose, and Santa Clara, and then to
14 Saratoga Creek and Guadalupe Slough before discharging into South San Francisco Bay.
15 71. Sunnyvale East Channel is approximately 6 miles in length and flows through central
16 Cupertino northeastward through Sunnyvale; then it discharges to South San Francisco Bay via the
17 Guadalupe Slough. Sunnyvale East Channel drains approximately 7.1 square miles. It was constructed
18 by Valley Water in 1967 to manage flooding caused by major storm events, land subsidence, and
19 inadequate drainage. One quarter of it runs through underground culverts.
20 72. Guadalupe Slough is a tidal slough. Its watershed includes Calabazas Creek and
21 Sunnyvale East Channel, as well as Saratoga Creek, San Tomas Aquino Creek, Smith Creek, Wildcat
22 Creek, Booker Creek, Rodeo Creek, and Sunnyvale West Channel.
23 73. Guadalupe Slough is an important ecological resource as habitat for the California black
24 rail, California clapper rail, salt marsh harvest mouse, and western snowy plover.
25 74. San Francisco Bay (“Bay”) is an ecologically-sensitive waterbody and a defining feature
26 of Northern California. The Bay is an important and heavily-used resource, with special aesthetic and
27 recreational significance for people living in the surrounding communities. Aquatic sports are very
28 popular in the Bay. The Bay shoreline has numerous highly-valued lagoons with beaches and public
Complaint 11
1 access that offer unique recreational opportunities for swimmers, kayakers, stand up paddleboarders, and
2 windsurfers. The large-scale urbanization of the Bay Area makes these recreational and aesthetic uses
3 critically important to the quality of life of Bay Area residents.
4 75. San Francisco Bay’s water quality is impaired and continues to decline. The Bay’s once-
5 abundant and varied fisheries have been drastically diminished by pollution, and much of the wildlife
6 habitat of the Bay has been degraded.
7 76. The Basin Plan designates beneficial uses and water quality objectives for waters
8 receiving discharges from the Collection System and Sunnyvale MS4.
9 77. The existing beneficial uses for Stevens Creek include: freshwater replenishment,
10 groundwater recharge, cold freshwater habitat, fish migration, preservation of rare and endangered
11 species, fish spawning, warm freshwater habitat, wildlife habitat, water contact recreation, and
12 noncontact water recreation.
13 78. The existing beneficial uses for Calabazas Creek include: agricultural supply,
14 groundwater recharge, cold freshwater habitat, warm freshwater habitat, wildlife habitat, water contact
15 recreation, noncontact water recreation, and navigation.
16 79. Sunnyvale East Channel has no designated beneficial uses, but existing beneficial uses
17 that have not been formally designated are protected whether or not they are identified. Moreover, the
18 beneficial uses of any specifically identified water body generally apply to all of its tributaries.
19 80. The existing beneficial uses for Guadalupe Slough include: estuarine habitat, preservation
20 of rare and endangered species, wildlife habitat, water contact recreation, and noncontact water
21 recreation.
22 81. The existing beneficial uses for South San Francisco Bay include: estuarine habitat,
23 industrial service supply, commercial and sport fishing, shellfish harvesting, wildlife habitat,
24 preservation of rare and endangered species, water contact recreation, noncontact water recreation, fish
25 migration, fish spawning, and navigation.
26 82. The Receiving Waters are also listed on the State of California’s 2014-2016 Clean Water
27 Act Section 303(d) list of impaired waterbodies.
28 83. A waterbody that is impaired exceeds WQS and does not support the designated
Complaint 12
1 beneficial uses for that waterbody. Based upon available sampling data and agency resources, the
2 Regional Board lists a waterbody as impaired under CWA section 303(d).
3 84. Stevens Creek is listed as impaired for trash and water column toxicity.
4 85. Calabazas Creek is listed as impaired for diazinon.
5 86. Guadalupe Slough is listed as impaired for water column toxicity.
6 87. South San Francisco Bay is listed as impaired for chlordane,
7 dichlorodiphenyltrichloroethane (“DDT”), dieldrin, dioxin compounds, furan compounds, invasive
8 species, mercury, polychlorinated biphenyls (“PCBs”), and selenium.
9 D. Impacts to the Receiving Waters from Sunnyvale’s CWA Violations
10 88. High Bacteria concentrations in surface waters can be directly attributed to discharges
11 from urban stormwater systems.
12 89. Urban stormwater runoff and dry-weather discharges are recognized sources of
13 pollutants, including human fecal matter.

14 90. Stormwater outfalls are a significant pathway for Bacteria loading into surface waters.
15 91. Pollutants from the Sunnyvale MS4, as well as raw sewage and associated pollutants
16 from the Collection System and/or from privately-owned lateral sewer lines that enter the MS4 via
17 exfiltration or other means, are discharged to the Receiving Waters.
18 92. The discharge of urban stormwater, dry-weather discharges, and raw and/or inadequately-
19 treated sewage via Sunnyvale’s MS4 adversely affects the beneficial uses of the Receiving Waters and
20 poses a serious risk to fisheries, wildlife habitat, and human health.

21 93. Raw sewage contains human waste, viruses, protozoa, mold spores, Bacteria, and
22 chemicals that cause cancer or reproductive toxicity. These chemicals come from solvents, detergents,
23 cleansers, inks, pesticides, paints, pharmaceuticals, and other chemicals used by households and
24 businesses and discarded to sewage collection systems. Exfiltrating raw sewage enters the Sunnyvale
25 MS4 and then subsequently flows directly or with stormwater to surface waters, resulting in the addition
26 of these pollutants to the Receiving Waters.
27 94. Information available to Baykeeper indicates the presence of Bacteria in the Receiving
28 Waters following modest storm events and even during dry weather at concentrations orders of
Complaint 13
1 magnitude greater than WQS for water contact recreation for E. Coli, enterococci, fecal coliform, and
2 total coliform.
3 95. Contaminated streams run through many of Sunnyvale’s parks, posing public health
4 threats, particularly to children, and significantly diminishing recreation-based beneficial uses.
5 96. The intensive use of the Bay and its tributaries for commercial and sport fishing, shellfish
6 harvesting, and water-contact recreation increases the likelihood that people will come into direct
7 contact with the raw sewage and other pollutants discharged by Sunnyvale.
8 97. Untreated raw sewage also affects people who eat fish caught in these waters. Toxic
9 chemicals bio-accumulate in the Bay’s food web, i.e., contaminants absorbed by plankton accumulate in
10 fish and birds farther up the food chain and ultimately transfer to human consumers. Contaminated fish
11 are particularly damaging to ethnic and economic minority communities, who eat a greater-than-average
12 amount of locally-caught fish.
13 98. The pollutants impairing Stevens Creek, Calabazas Creek, Guadalupe Slough, and South
14 San Francisco Bay are found in discharges of raw and/or inadequately-treated sewage.
15 99. By discharging urban stormwater runoff, dry-weather non-stormwater discharges, and
16 raw and/or inadequately-treated sewage and associated pollutants into the Sunnyvale MS4 that directly
17 leads to the Receiving Waters, which are waters of the United States, in violation of the Clean Water
18 Act, Sunnyvale has contributed and continues to contribute to the continuing impairment of these
19 waters.
20 E. Sunnyvale’s Violations of the MS4 Permit

1. Failure to Effectively Prohibit Discharges of Non-Stormwater to and from
21
the Sunnyvale MS4
22 100. Urban stormwater, dry-weather discharges, and other non-stormwater discharges
23 regularly discharge into the Sunnyvale MS4 and Receiving Waters.
24 101. Raw sewage regularly discharges from the Collection System to the Sunnyvale MS4 and
25 Receiving Waters via exfiltration.
26 102. Raw sewage discharges, or exfiltrates, from the Collection System underground via
27 cracks, displaced joints, holes, and other leakage points in the Collection System. Some of the raw
28 sewage that exfiltrates from the Collection System in areas where the Collection System is in proximity
Complaint 14
1 to the Sunnyvale MS4 enters the Sunnyvale MS4 via cracks, displaced joints, and other compromised
2 portions of the Sunnyvale MS4.
3 103. Information available to Baykeeper indicates there is a high risk of exfiltration from the
4 Collection System to the Sunnyvale MS4 wherever a compromised sewer pipe is located above and
5 within five meters laterally of a compromised section of storm drain pipe.
6 104. Information available to Baykeeper indicates that raw sewage exfiltrates from the
7 Collection System and enters the Sunnyvale MS4 every day.
8 105. Raw sewage that enters the storm drain pipe via exfiltration is a non-stormwater
9 discharge to the MS4.
10 106. Sunnyvale is not effectively prohibiting discharges of raw sewage to the MS4 via
11 exfiltration.
12 107. Raw sewage that reaches the Sunnyvale MS4 through exfiltration flows untreated to the
13 Receiving Waters.
14 108. Sunnyvale discharges non-stormwater to the Receiving Waters when raw sewage that
15 enters the MS4 via exfiltration is subsequently discharged from the MS4.
16 8. Illegal Discharges of Bacteria from the MS4
17 109. Data available to Baykeeper demonstrates that discharges from the Sunnyvale MS4
18 contain elevated concentrations of pollutants such as total coliform, fecal coliform, E. Coli, and
19 enterococci at levels exceeding applicable WQS by orders of magnitude. See Exhibit A to Notice Letter
20 (Table 1 listing results of water quality monitoring).
21 110. Data available to Baykeeper demonstrates that dry-weather non-stormwater discharges
22 from the Sunnyvale MS4 contain elevated concentrations of pollutants such as E. Coli and enterococci at
23 levels exceeding applicable WQS by orders of magnitude. See Exhibit A to Notice Letter (Table 1
24 listing results of water quality monitoring and sampling conditions).
25 111. Discharges with elevated levels of Bacteria and other pollutants adversely affect the
26 beneficial uses of the Receiving Waters.
27 112. Sunnyvale’s discharges from its MS4 outfalls with concentrations of pollutants such as
28 total coliform, fecal coliform, E.coli, and enterococci in exceedance of WQS demonstrate that
Complaint 15
1 Sunnyvale’s discharges cause or contribute to a violation of an applicable WQS.

2 VII. CLAIMS FOR RELIEF
3 FIRST CAUSE OF ACTION
4 Illegal Discharges of Non-Stormwater
MS4 Permit, Discharge Prohibition A.1.
5 33 U.S.C. §§ 1311(a), 1342
6 113. Plaintiff incorporates the allegations contained in the above paragraphs as though fully
7 set forth herein.
8 114. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale’s discharges of
9 dry-weather non-stormwater discharges and raw sewage via exfiltration to the Sunnyvale MS4 are
10 ongoing and continuous.
11 115. Sunnyvale’s discharges from the Sunnyvale MS4 to Receiving Waters of dry-weather
12 non-stormwater and raw sewage via exfiltration are ongoing and continuous.
13 116. Baykeeper is informed and believes, and thereon alleges, that each of these discharges is
14 itself a violation of Discharge Prohibition A.1. of the MS4 Permit and the Clean Water Act.
15 117. Baykeeper is further informed and believes, and thereon alleges, that these discharges
16 demonstrate that Sunnyvale fails to effectively prohibit discharges into and from its MS4 as required by
17 the MS4 Permit and the Clean Water Act.
18 118. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale has therefore
19 been in daily and continuous violation of Discharge Prohibition A.1. of the MS4 Permit every day since
20 at least December 4, 2014.
21 119. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale’s violations of
22 Discharge Prohibition A.1. of the MS4 Permit and the CWA are ongoing.
23 120. Sunnyvale’s violations will continue each day and/or occasion that it fails to effectively
24 prohibit the discharge of raw sewage to or from the Sunnyvale MS4 in violation of the requirements of
25 the MS4 Permit and the Clean Water Act.
26 121. Each and every violation of Discharge Prohibition A.1. of the MS4 Permit is a separate
27 and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a).
28 122. By committing the acts and omissions alleged above, Sunnyvale is subject to an
Complaint 16
1 assessment of civil penalties for each and every violation of the CWA occurring from December 4, 2014
2 to present pursuant to sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d), 1365, and the
3 Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4.
4 123. An action for injunctive relief under the CWA is authorized by 33 U.S.C. § 1365(a).
5 Continuing commission of the acts and omissions alleged above would irreparably harm Baykeeper and
6 the citizens of the State of California, for which harm Baykeeper has no plain, speedy, or adequate
7 remedy at law.
8 WHEREFORE, Plaintiff prays for judgment against Sunnyvale as set forth hereafter.
9 SECOND CAUSE OF ACTION
Illegal Discharges of Polluted Stormwater
10 MS4 Permit, Receiving Water Limitations B.1. and B.2.
11 33 U.S.C. §§ 1311(a), 1342
124. Plaintiff incorporates the allegations contained in the above paragraphs as though fully
12
set forth herein.
13
125. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale has discharged
14
and continues to discharge stormwater containing levels of pollutants that adversely impact human
15
health and/or the environment.
16
126. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale’s discharges of
17
stormwater containing levels of pollutants that adversely impact human health and/or the environment
18
violate Receiving Water Limitation B.1. of the MS4 Permit and the Clean Water Act.
19
127. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale’s discharges
20
from the Sunnyvale MS4 contain levels of pollutants that adversely impact human health and/or the
21
environment during and/or after every significant rain event and whenever non-stormwater in the form
22
of exfiltrating raw sewage or dry-weather non-stormwater discharges from the Sunnyvale MS4 since at
23
least December 4, 2014.
24
128. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale has discharged
25
and continues to discharge stormwater containing levels of pollutants that cause or contribute to
26
violations of applicable WQS.
27
129. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale’s discharges of
28
Complaint 17
1 stormwater containing levels of pollutants that cause or contribute to exceedances of applicable WQS
2 violate Receiving Water Limitation B.2. of the MS4 Permit and the Clean Water Act.
3 130. Baykeeper is informed and believes, and thereon alleges, that Sunnyvale’s discharges
4 from its MS4 contain levels of pollutants that cause or contribute to exceedances of applicable WQS
5 during and/or after every significant rain event and whenever non-stormwater in the form of exfiltrating
6 raw sewage or dry-weather non-stormwater discharges from the MS4 since at least December 4, 2014.
8 Receiving Water Limitation B.1. of the MS4 Permit and the CWA are ongoing.
10 Receiving Water Limitation B.2. of the MS4 Permit and the CWA are ongoing.
11 133. Sunnyvale will continue to be in violation of the MS4 Permit and the CWA each and
12 every time its discharges contain pollutants at levels that violate Receiving Water Limitation B.1. of the
13 MS4 Permit.
14 134. Sunnyvale will continue to be in violation of the MS4 Permit and the CWA each and
15 every time its discharges contain pollutants at levels that violate Receiving Water Limitation B.2. of the
16 MS4 Permit.
17 135. Each and every violation of Receiving Water Limitation B.1. of the MS4 Permit is a
18 separate and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a).
19 136. Each and every violation of Receiving Water Limitation B.2. of the MS4 Permit is a
20 separate and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a).
21 137. By committing the acts and omissions alleged above, Sunnyvale is subject to an
22 assessment of civil penalties for each and every violation of the CWA occurring from December 4, 2014
23 to present pursuant to sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d), 1365, and the
24 Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4.
25 138. An action for injunctive relief under the CWA is authorized by 33 U.S.C. § 1365(a).
26 Continuing commission of the acts and omissions alleged above would irreparably harm Baykeeper and
27 the citizens of the State of California, for which harm Baykeeper has no plain, speedy, or adequate
28 remedy at law.
Complaint 18
1 WHEREFORE, Plaintiff prays for judgment against Sunnyvale as set forth hereafter.
2 VIII. RELIEF REQUESTED
3 Wherefore, Plaintiff respectfully requests that this Court grant the following relief:
4 a. Declare Sunnyvale to have violated and to be in violation of the MS4 Permit and
5 Sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a), 1342, for its unlawful discharges of
6 pollutants and violations of the MS4 Permit and the CWA;
7 b. Enjoin Sunnyvale from violating the MS4 Permit and Sections 301(a) and 402 of the
8 CWA, 33 U.S.C. §§ 1311(a), 1342;
9 c. Order Sunnyvale to pay civil monetary penalties for each violation of the CWA at
10 $37,500.00 per day for violations occurring between December 4, 2014 and November 1, 2015, and
11 $54,833.00 per day per violation for violations that occurred after November 2, 2015, as permitted by 33
12 U.S.C. § 1319(d) and Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4;
13 d. Award Plaintiff its reasonable costs of suit, including attorney, witness, expert, and
14 consultant fees, as permitted by Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d); and
15 e. Grant any other relief as this Court may deem appropriate.
16
17 Dated: February 4, 2020 Respectfully submitted,
18
19 /s/ Nicole C. Sasaki
NICOLE C. SASAKI
20 CHRISTOPHER LEN
SAN FRANCISCO BAYKEEPER, INC.
21 Attorneys for Plaintiff
San Francisco Baykeeper
22
23
24
25
26
27
28
Complaint 19

Sunnyvale Pollution Lawsuit

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Case 5:20-cv-00824 Document 1 Filed 02/04/20 Page 1 of 19

1 Jason R. Flanders (Bar No. 238007)

17 UNITED STATES DISTRICT COURT

26 environmental laws on behalf of itself and its members.

20 A. The Clean Water Act

20 A. Sunnyvale MS4 and Discharges of Bacteria

23 around the City of Sunnyvale.

26 the Receiving Waters.

13 the Receiving Waters.

20 exfiltration flows untreated to the Receiving Waters.

13 pollutants, including human fecal matter.

20 poses a serious risk to fisheries, wildlife habitat, and human health.

20 E. Sunnyvale’s Violations of the MS4 Permit

20 (Table 1 listing results of water quality monitoring).

21 110. Data available to Baykeeper demonstrates that dry-weather non-stormwater discharges

24 listing results of water quality monitoring and sampling conditions).

26 beneficial uses of the Receiving Waters.

1 Sunnyvale’s discharges cause or contribute to a violation of an applicable WQS.

7 set forth herein.

10 ongoing and continuous.

17 the MS4 Permit and the Clean Water Act.

20 at least December 4, 2014.

25 the MS4 Permit and the Clean Water Act.

27 and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a).

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