Published January 19, 2012 08:00

After hours of tough negotiations throughout an afternoon and evening (1-11-2012), West Bay Sanitary District (WBSD) and San Francisco Baykeeper reached a settlement to end the wasteful continuance of a lawsuit Baykeeper filed against West Bay in late 2009. In return for a $1.4 million payment to cover Baykeeper’s costs, high-priced lawyers and “experts,” Baykeeper will dismiss its suit.

Baykeeper’s Executive Director, Deb Self, wasted no time posting a statement on Baykeeper’s website making claims that are not based on fact. The WBSD Board of Directors is sincerely disappointed in Ms. Self’s attempt to “spin” the settlement. Ms. Self was present during the settlement negotiations, and while it was agreed that recommendations made by expert witnesses for both parties during the litigation resulted in improvements to the WBSD sewer system, Ms. Self makes a number of claims that falsely imply that without Baykeeper’s lawsuit, there would have been no improvement in West Bay’s sewer spill record. She claims:

“After Baykeeper brought suit under the Clean Water Act in 2009, West Bay initiated major upgrades to its antiquated sewer system in order to significantly reduce its sewage pollution to the Bay.”

“West Bay used to be one of the worst-polluting sewage agencies in the Bay Area, but they have reduced their sewage spills by two-thirds since we brought suit.”

“As a result, more than 60,000 gallons of sewage flowed into local creeks, sloughs and city drains connected to San Francisco Bay.”

Over two years of negotiation and litigation, an extensive record of evidence was constructed that tells a different story. It is a fact that State regulations adopted in 2006 required all wastewater agencies statewide to report all sewage system overflows (SSOs) to the State Water Resources Control Board within hours of the event happening, and then a public record of the spills is made available to everyone on a special web site. All sewer systems statewide were also required to implement Sanitary Sewer System Management Plans to improve system performance. These new requirements and the availability of this data were the impetus for WBSD (as well as most other wastewater agencies) to increase efforts to reduce SSOs. When Baykeeper filed its lawsuit in December of 2009, the plans and efforts of WBSD were already underway and bringing substantial performance improvements. Metrics are available to show the significant improvement from 2007 through 2009, and those performance metrics have gotten better right through the end of 2011.

Calling WBSD “one of the worst performing sewage agencies in the Bay Area” may be useful for Baykeeper’s attempt to justify its lawsuit, but it simply is not true. Although West Bay’s system transports millions of gallons of wastewater to the treatment plant every day, at the point of settlement, the proven volume that overflowed and was not cleaned up before entering streams and the Bay, based on evidence presented to the Federal Court, was approximately 40,000 gallons. That was over a seven-year period between 2004 and 2010.During over two years of litigation Baykeeper produced no evidence that any sewer overflow from West Bay’s system had a measurable effect on recreation areas or fish spawning. No evidence was presented indicating that any sewer overflow from the WBSD system caused environmental harm or posed any health risk to humans or wildlife.

It is also worth keeping the 40,000 gallons spilled over the course of several years in perspective. In 2010 alone, wastewater agencies throughout the Bay area reported sewer spills that, combined, totaled tens of millions of gallons. Compared to West Bay’s less than 40,000 gallons over seven years, it’s hard to understand Baykeeper’s claim that West Bay represents one of the worst offenders.

Moreover, the Bay Area receives its first significant rain this season, runoff containing tons of pollutants and fecal material from horses, dogs, cats, squirrels, skunks, rabbits, deer, mountain lions, etc., etc. living in our geographic region will flow into the Bay. While that is no excuse for WBSD not striving for a zero spill rate, this perspective is useful. It’s also useful to realize there is no benefit in suing these animals. They have no money.

The work done at West Bay actually advances the objective that Baykeeper preaches. No one wants sewer overflows and West Bay does its best to operate the system to peak performance. West Bay collects and transmits millions of gallons of sewage every day and conveys more than 99.9% of the sewage to the treatment plant without incident. But, as computer owners know every time their machines crash, there are few engineered systems built by humans that work perfectly. And we also work within the economic reality of balancing cost-of-service against the cost of absolute perfection. It is also a fact that West Bay’s sewer system is designed to overflow from manholes into the street when a blockage occurs, just like every other sanitary sewer system in the United States and most of the world. This is to prevent a blockage from causing raw sewage to back-up into nearby houses and buildings. West Bay works hard to minimize the number of overflows that occur, and to capture and clean up affected areas when they do. The result has been no sewer spills to local waterways in more than a year.

People may say the amount paid by West Bay was enormous for activity that had minimal environmental consequences. Absolutely!!! It is more than any member of the community we serve, WBSD employees, or Board of Directors would like to have paid. But the Clean Water Act prohibits any discharge of pollutants into “waters of the United States,” and provides a vehicle for Baykeeper to file suit and have its legal fees covered by the residents and ratepayers of the city or district being sued, even when the amount of sewage that reaches receiving waters is miniscule and causes no perceptible harm. Indeed, Baykeeper claims that virtually all sewer overflows violate the Clean Water Act, even when they are completely contained, returned to the sewer, and affected areas are cleaned and disinfected, if there is a possibility that “one molecule” of effluent could be left in a storm drain and eventually make its way into the Bay.

Unfortunately, the Clean Water Act’s citizen suit provisions and EPA regulations don’t meaningfully distinguish between major sewer overflows and minor spills that have no environmental consequence. Groups like Baykeeper can file suit and have their attorneys’ fees paid by the public agencies or other entities that they sue in either case. This reality forced West Bay to pay Baykeeper’s fees to settle this case, even though the litigation only succeeded in proving that 21 spills reached receiving waters in seven years, of the nearly 200 spills claimed in Baykeeper’s initial court filing.

The WBSD Board has often expressed frustration as to why Baykeeper didn’t just give them a call and come down from San Francisco and meet with West Bay instead of having its first meeting be to announce its intent to file a lawsuit. Just like Baykeeper purports to be, West Bay is an entity concerned about the environment, and truly wants to protect it. Working together would have been a better, less costly solution. From this experience, West Bay can only conclude that Baykeeper’s focus rests more on monetary rewards for its cadre of lawyers and experts than on clean water.

One statement by Ms. Self’s press release that will be interesting to follow will be:

“The settlement also requires West Bay to pay $1.4 million to reimburse Baykeeper’s attorneys’
fees and expert costs and to fund third-party projects to benefit Bay water quality.”

While Baykeeper may dedicate some amount of this lump sum settlement for clean water projects, the lion’s share will go to Baykeeper’s 3 teams of lawyers (Lawyers for Clean Water, Environmental Advocates, and in-house at Baykeeper itself).

In total, this lawsuit cost WBSD over $2 million (including our costs to defend our case). This equates to about 2.5 miles of new pipe we could have put in the ground… if only Baykeeper had taken the telephone-and-talk route rather than the lawsuit and lawyer fee route. And all that money comes from West Bay’s customers / rate payers at a time when the economy is not at all strong.

As mentioned, an extensive record has been created in this case. West Bay refused to accept an early and unreasonable settlement demand (unlike most other jurisdictions) to avoid having non-engineers review and comment on every decision that West Bay’s elected Board of Directors must make concerning operation of its system. West Bay also challenged Baykeeper’s novel legal arguments and stopped Baykeeper from trying to extend state law into federal courts. We encourage the public (including board members and constituents of Baykeeper) to review the arguments from both sides. This is the first time the tactics and arguments of Baykeeper have been challenged. Transparency is healthy.

The WBSD Board of Directors is pleased to have this distraction behind us, and to be able to go back to work without having to report to the Baykeeper at every turn as many other agencies that have suffered a similar suit now do. We are pleased with the record of progress and improvement that West Bay is making due to its own efforts. We are proud of our management and employees who have worked professionally to achieve the current operating record that is better than many other systems in the state. We are committed to bringing our customers / ratepayers uninterrupted, cost effective service and to continue improving our performance record. We are committed to protecting the environment, and to representing the fiduciary well-being of our constituents.

Back to all news