On Feb. 4, 2020, Baykeeper sued the City of Sunnyvale. The lawsuit relates to bacteria in untreated stormwater.* Members of the community have been raising questions about the City’s continued defense of the Baykeeper litigation. They want to know why the City is fighting Baykeeper or why we don’t settle the lawsuit. The following points are intended to help explain the City’s position.

• The City agrees that bacteria in stormwater is a serious concern, which is why the City supported the inclusion of requirements for investigation and potential control of bacterial sources in our most recent stormwater permit.
  • Learn more about permits and the state and regional agencies involved with stormwater protection
• The City is actively testing stormwater and investigating sources of bacteria. The City is also taking actions to reduce bacteria. This includes making significant investments in improving and repairing sewer and storm drain infrastructure and educating businesses and residents about ways to reduce sources of contamination.
  • Read Sunnyvale’s 2022-23 Stormwater Management Report to the San Francisco Bay Regional Water Quality Control Board about our permit activities.
• Baykeeper waited two years to notify the City after first testing Sunnyvale and Mountain View’s stormwater in 2017 and allegedly finding bacteria.
• Baykeeper was not interested in working proactively with the cities or giving us a chance to take action to address the problem. Instead, Baykeeper chose to file costly lawsuits.
• Money that the City pays Baykeeper’s lawyers is money that cannot be spent on Sunnyvale’s stormwater programs or other City services.
• In a recent court filing, Baykeeper asked the court to order Sunnyvale and Mountain View to pay $1.8 million in attorney’s fees before the cases have even gone to trial. We believe (and have asserted in court) that Baykeeper’s lawyers have significantly inflated their fees through excessive, unnecessary and duplicative billing.
• In other settlements (such as Baykeeper’s settlement with San Jose in 2016), Baykeeper has gained the right to monitor the city’s stormwater activities for an extended period. Cities have been required to make annual payments to Baykeeper as well as third party non-profit organizations.
• The City does not believe that we need Baykeeper to regulate us. We are already stringently regulated by the Regional Water Quality Control Board and other state and federal agencies.
  • Baykeeper is a private non-profit organization that is unelected and unaccountable to voters.
  • Baykeeper actively avoids negative public scrutiny: for example, in Baykeeper’s 2016 settlement with San Jose, the City of San Jose agreed not to “negatively cite” Baykeeper as the reason for fee and tax measures that were needed to pay for infrastructure upgrades required by the settlement of Baykeeper’s lawsuit. Public materials and messaging about the revenue measures had to be approved in advance by Baykeeper.
• The City has a fiscal obligation to the Sunnyvale taxpayers and the community not to pay excessive or unwarranted settlements when we are sued, especially when there are valid legal arguments, such as relevant U.S. Supreme Court decisions, that support our defense.
• Regarding “closed door meetings,” the Brown Act (California’s public meeting law) allows the City Council to meet in closed session to discuss pending litigation with the City’s attorneys. Closed sessions are necessary to preserve the attorney-client privilege and avoid disclosing legal analysis and strategies to the other side.

Sunnyvale has a long-standing track record of being good stewards of our public funds and the environment. And we will continue to follow all laws and regulations in place to protect our waterways and public health.  

Learn more about water pollution prevention

*The water that goes down a sink or toilet in your home or business flows to our wastewater treatment plant where we treat and filter it. Water that flows down driveways and streets and into a gutter goes into a storm drain which flows directly to a waterway.