Saratoga News

City, environmental groups give arguments in creek case

By Sarah Lombardo

The waiting game continues for city officials and environmental groups suing them over the condition of Saratoga Creek.

Judges in the California Ninth Circuit Court of Appeals are still mulling over the case sent to them last April after San Jose federal Judge Edward Infante ruled that the city was not responsible for polluted outflows from a number of city storm drains that empty into Saratoga Creek, particularly one located under a Saratoga-Sunnyvale Road overpass. The other drain pointed out in the case is located at Big Basin Way and Third Street in Saratoga Village.

In the appeal, the Friends of Santa Clara County Creeks and San Francisco BayKeepers, the groups that filed suit against the city Jan. 25, 1995, agreed to dismiss 10 counts of their suit on condition that if the circuit court reverses Infante's judgment, all 10 counts will be reinstated as originally filed. If the court upholds the April decision, the case is over.

The environmental groups claim in their suit that discharges into the creek contain unreasonably high levels of fecal coliform bacteria, organisms that live in the digestive tracts of mammals and can indicate the presence of more harmful bacteria or sewage. They contend that the city is responsible for the cleanup and prevention of these discharges. But the city has always claimed that the creek is only as polluted as any other urban creek, that it can't be held responsible.

Oral arguments for the appeal were heard in San Francisco Feb. 10, with both sides claiming it went well. But both sides are also being realistic.

"Oral arguments are notoriously deceptive," Claudia Polsky, the Earthjustice Legal Defense Fund attorney representing the environmental groups. "But the judges seemed quite receptive."

Said Saratoga City Attorney Mike Riback: "I think both sides presented their arguments in a very professional manner."

The crux of the city's argument, presented by attorney Rick Jarvis, who is representing the city in the case, is that because Caltrans owns the storm drain located at the Saratoga-Sunnyvale Road overpass, the city cannot be held liable for pollutants that come out of the storm drain.

But Polsky said the city does operate the storm drains and thus is liable for what flows out of them, under the conditions of the Clean Water Act.

Riback said that it is not the city's interpretation of the Clean Water Act that cities should be liable for what comes out of all storm drains located within their limits.

Both sides, however, do agree on one thing: It could take anywhere from one to nine months for the Ninth Circuit Court to make a decision.

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