Complaint 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 1 of 18

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: [email protected] Email: [email protected] 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: [email protected] 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: [email protected] 14 Email: [email protected] 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 Plaintiff, AND INJUNCTIVE RELIEF AND CIVIL PENALTIES 23 v. (Federal Water Pollution Control Act, 24 33 U.S.C. § 1251 et seq.) CITY OF MOUNTAIN VIEW, a municipality; 25 MOUNTAIN VIEW FIRE DEPARTMENT, a municipal department; and MOUNTAIN VIEW 26 PUBLIC WORKS DEPARTMENT, a municipal 27 department,

28 Defendants.

Complaint 1 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 2 of 18

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 Mountain View and its Fire 7 Department and Public Works Department (collectively, “Mountain View” or “the City”) from the 8 City’s municipal separate storm sewer system (“MS4”). Mountain View’s repeated and ongoing 9 violations of the Municipal Regional Stormwater NPDES Permit, NPDES Permit No. CAS612008, 10 Order No. R2-2015-0049, California Regional Water Quality Control Board San Francisco Bay Region 11 (“MS4 Permit” or “Permit”), have adversely affected the water quality and beneficial uses of local 12 waterways, including Stevens Creek and South San Francisco Bay. Baykeeper seeks a declaratory 13 judgment, injunctive relief, the imposition of civil penalties, and an award of costs, including attorney 14 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 Mountain 20 View 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 Mountain View municipal separate storm sewer system (“Mountain View 23 MS4”) and the owners and operators of the City of Mountain View sewage collection system 24 (“Collection System”); specifically, the Mountain View City Manager, Fire Chief, and the Director of 25 the Public Works Department. Baykeeper also sent the Notice Letter to the Administrator of the United 26 States Environmental Protection Agency (“EPA”), the Administrator of EPA Region IX, the Executive 27 Director of the State Water Resources Control Board (“State Board”), and the Executive Officer of the 28 Regional Water Quality Control Board, San Francisco Bay Region (“Regional Board”) (collectively,

Complaint 2 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 3 of 18

1 “State and Federal agencies”), as required by section 505(b) of the CWA, 33 U.S.C. § 1365(b)(1)(A). 2 The Notice Letter is 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 Mountain 4 View 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 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 4 of 18

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 Mountain View discharges pollutants, including, but not limited to, 7 South San Francisco Bay, Stevens Creek, and other waters that drain to South San Francisco Bay 8 (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. Mountain View’s failure to comply with the substantive requirements of the MS4 Permit 13 and/or the Clean Water Act, including but not limited to Mountain View’s discharge of polluted 14 stormwater, polluted dry-weather flows, raw sewage, and other pollutants via the Mountain View MS4 15 to the Receiving Waters, as well as Mountain View’s failure to develop and implement programs to 16 effectively control and monitor these discharges, negatively impacts and impairs Baykeeper’s members’ 17 use and enjoyment of 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 Mountain View’s failure to comply with the Clean Water Act and the MS4 Permit. 20 The relief sought herein will redress the harms to Plaintiff caused by Mountain View’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 Mountain View’s 26 pollution. Baykeeper’s members use and enjoy South San Francisco Bay and Stevens Creek for 27 recreational, scientific, and aesthetic purposes and would reasonably cease these activities should South 28 San Francisco Bay’s water quality become too degraded. Baykeeper’s injuries-in-fact are fairly

Complaint 4 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 5 of 18

1 traceable to Mountain View’s conduct and would be redressed by the requested relief. 2 18. Neither the claims brought by Baykeeper nor the relief Baykeeper requests requires the 3 participation of individual members. 4 B. The City of Mountain View 5 19. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View 6 is a municipality formed under the laws of the State of California. 7 20. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View 8 maintains offices at 500 Castro Street, Mountain View, California 94041. 9 21. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View, 10 its Fire Department, and/or its Public Works Department are the owners of the Mountain View MS4. 11 22. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View, 12 its Fire Department, and/or its Public Works Department are the operators of the Mountain View MS4. 13 23. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View, 14 its Fire Department, and/or its Public Works Department are the owners of the Mountain View 15 Collection System. 16 24. Baykeeper is informed and believes, and thereon alleges, that the City of Mountain View, 17 its Fire Department, and/or its Public Works Department are the operators of the Mountain View 18 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 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 6 of 18

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 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 7 of 18

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 Mountain View is a “person” within the meaning of section 502(5) of the 11 CWA, 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 Mountain View MS4. 24 43. Mountain View is subject to the terms and conditions of the MS4 Permit. 25 44. The MS4 Permit allows Mountain View to discharge stormwater runoff from storm 26 drains and other stormwater conveyances within its jurisdiction, if the discharges comply with the 27 discharge prohibitions, receiving water limitations, and all other requirements of the MS4 Permit. 28 45. Discharge Prohibition A.1. of the MS4 Permit requires that Mountain View effectively

Complaint 7 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 8 of 18

1 prohibit discharges of non-stormwater into the Mountain View 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 Mountain View include, but are not limited to, those set out in (1) 13 the Regional Board’s Basin Plan, Chapter 3; (2) Part 3 of the State Board’s Water Quality Control Plan 14 for 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. Mountain View MS4 and Discharges of Bacteria 21 52. The Mountain View MS4 consists of the streets, curbs, gutters, drop inlets, underground 22 pipes, concrete channels, and other structures that collect and convey stormwater and non-stormwater in 23 and around the City of Mountain View. 24 53. The Mountain View MS4 includes approximately 117.5 miles of storm drain pipes. 25 54. The storm drain pipes and other conveyances in the Mountain View MS4 connect 26 directly to the Receiving Waters. 27 55. Discharges from the Mountain View MS4 are not treated prior to entering the Receiving 28 Waters.

Complaint 8 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 9 of 18

1 56. Mountain View is responsible for ensuring that discharges to and from the Mountain 2 View MS4 do not violate the MS4 Permit. While operating and maintaining the Mountain View MS4, 3 Mountain View is responsible for collecting and conveying stormwater through the MS4, preventing 4 non-stormwater materials (including raw sewage exfiltrating from the Collection System) from entering 5 the Mountain View MS4, conducting routine maintenance, cleaning and inspecting the Mountain View 6 MS4, and responding to 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 Mountain View discharge directly to the Receiving Waters via the Mountain 9 View MS4. Non-stormwater flows also discharge from the Mountain View MS4 to the Receiving 10 Waters. 11 58. Fecal indicator bacteria in concentrations above the water quality objectives for E. Coli, 12 enterococci, fecal coliform, and total coliform (collectively, “Bacteria”) adversely affect the aquatic 13 organisms, people consuming those organisms or water, and the current or potential beneficial uses of 14 the Receiving Waters. 15 59. Targeted epidemiological studies have shown a number of adverse health outcomes 16 associated with fecally-polluted water resulting in a significant burden of disease and economic loss. 17 Studies conducted worldwide have correlated gastrointestinal symptoms to recreating in water with high 18 Bacteria counts. California-specific studies show a higher incidence of upper respiratory and 19 gastrointestinal symptoms associated with swimming in the vicinity of storm drains contaminated with 20 high Bacteria counts. 21 60. Mountain View discharges bacteria from the MS4 every time precipitation causes runoff 22 in the Mountain View MS4.

23 B. Mountain View’s Collection System and Discharges of Raw Sewage 24 61. Mountain View’s Collection System is comprised of the Palo Alto Regional Water 25 Pollution Control Plant (“Plant”) and the City of Mountain View’s Collection System. The Plant is 26 owned and operated by the City of Palo Alto, and is under a joint powers agreement between Palo Alto, 27 Mountain View, and Los Altos. The wastewater conveyed to the Plant is then treated and subsequently 28 discharged to the Renzel Marsh Pond, which drains into Matadero Creek, the Palo Alto Flood Basin, and

Complaint 9 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 10 of 18

1 then into South San Francisco Bay near the Palo Alto Airport. The Collection System is a point source 2 under the Clean Water Act. See 33 U.S.C. § 1362(14). 3 62. The Collection System consists of approximately 160 miles of gravity sewer pipes. The 4 Collection System pipes range in size from 4 to 42 inches in diameter. The Collection System includes 1 5 mile of 42-inch force main. The Collection System includes two (2) pump stations. At least 57 percent 6 of the existing sanitary sewer mains in the Collection System are older than 20 years old. At least 26 7 percent of the existing sanitary sewer mains in the Collection System are older than 60 years old. 8 Approximately 38 percent of the sanitary sewer segments in the Collection System do not have recorded 9 ages. 10 63. Data available to Baykeeper indicates 89 percent of the system is comprised of vitrified 11 clay pipes. Vitrified clay pipes are susceptible to cracking and leakage. 12 64. Mountain View is responsible for operating and maintaining the Collection System. To 13 operate the Collection System, Mountain View undertakes tasks such as, but not limited to, collecting 14 and conveying raw sewage through the Collection System, conducting routine maintenance, cleaning 15 and inspecting the Collection System, designing and implementing necessary capital improvements, and 16 responding to sanitary sewer overflows (“SSOs”). 17 65. Raw sewage discharges, or exfiltrates, from the Collection System underground via 18 structural defects, such as cracks, displaced joints, holes, and other leakage points, in the Collection 19 System. Raw sewage that exfiltrates from the Collection System in areas where the Collection System is 20 in proximity to the Mountain View MS4 has the potential to enter the MS4 via cracks, displaced joints, 21 and other compromised portions of the MS4. Raw sewage that reaches the Mountain View MS4 through 22 exfiltration flows untreated to the Receiving Waters. 23 66. Raw sewage discharges from the Collection System to the MS4 via SSOs. SSOs have 24 many causes including, but not limited to, blockages in the pipes caused by roots, grease and foreign 25 debris, as well as structural damage to pipes such as off-set joints and broken pipes. SSOs can also be 26 caused by inadequate flow capacity. SSOs discharge from manholes, clean outs, or other surface 27 structures of the Collection System or private laterals. 28 ///

Complaint 10 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 11 of 18

1 C. The Receiving Waters 2 67. The storm drain pipes and other conveyances in the Mountain View MS4 discharge to 3 Stevens Creek and other local waterbodies that are tributaries to these waters. 4 68. Stevens Creek flows from Stevens Creek Reservoir, northward for a total of 12.5 miles 5 through the foothills in the cities of Cupertino and Los Altos, across the alluvial plain through the cities 6 of Sunnyvale and Mountain View and then discharges into South San Francisco Bay north of Moffett 7 Field Naval Air Station. 8 69. Stevens Creek is an important ecological resource, as it is one of the last remaining viable 9 habitats for federally-threatened Central California Coast Steelhead. The federally-endangered 10 California clapper rail and salt marsh harvest mouse live in the brackish reaches of the Creek. There is a 11 conservation area dedicated to the western burrowing owl, a species of concern under the Migratory 12 Bird Treaty Act, where Stevens Creek reaches South San Francisco Bay. 13 70. San Francisco Bay (“Bay”) is an ecologically-sensitive waterbody and a defining feature 14 of Northern California. The Bay is an important and heavily-used resource, with special aesthetic and 15 recreational significance for people living in the surrounding communities. Aquatic sports are very 16 popular in the Bay. The Bay shoreline has numerous highly-valued lagoons with beaches and public 17 access that offer unique recreational opportunities for swimmers, kayakers, stand up paddleboarders, and 18 windsurfers. The large-scale urbanization of the Bay Area makes these recreational and aesthetic uses 19 critically important to the quality of life of Bay Area residents. 20 71. San Francisco Bay’s water quality is impaired and continues to decline. The Bay’s once- 21 abundant and varied fisheries have been drastically diminished by pollution, and much of the wildlife 22 habitat of the Bay has been degraded. 23 72. The Basin Plan designates beneficial uses and water quality objectives for waters 24 receiving discharges from the Collection System and Mountain View MS4. 25 73. The existing beneficial uses for Stevens Creek include: freshwater replenishment, 26 groundwater recharge, cold freshwater habitat, fish migration, preservation of rare and endangered 27 species, fish spawning, warm freshwater habitat, wildlife habitat, water contact recreation, and 28 noncontact water recreation.

Complaint 11 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 12 of 18

1 74. The existing beneficial uses for South San Francisco Bay include: estuarine habitat, 2 industrial service supply, commercial and sport fishing, shellfish harvesting, wildlife habitat, 3 preservation of rare and endangered species, water contact recreation, noncontact water recreation, fish 4 migration, fish spawning, and navigation. 5 75. The Receiving Waters are also listed on the State of California’s 2014-2016 Clean Water 6 Act Section 303(d) list of impaired waterbodies. 7 76. A waterbody that is impaired exceeds WQS and does not support the designated 8 beneficial uses for that waterbody. Based upon available sampling data and agency resources, the 9 Regional Board lists a waterbody as impaired under CWA section 303(d). 10 77. Stevens Creek is listed as impaired for trash and water column toxicity. 11 78. South San Francisco Bay is listed as impaired for chlordane, 12 dichlorodiphenyltrichloroethane (“DDT”), dieldrin, dioxin compounds, furan compounds, invasive 13 species, mercury, polychlorinated biphenyls (“PCBs”), and selenium. 14 D. Impacts to the Receiving Waters from Mountain View’s CWA Violations 15 79. High Bacteria concentrations in surface waters can be directly attributed to discharges 16 from urban stormwater systems. 17 80. Urban stormwater runoff and dry-weather discharges are recognized sources of 18 pollutants, including human fecal matter. 19 81. Stormwater outfalls are a significant pathway for Bacteria loading into surface waters. 20 82. Pollutants from the Mountain View MS4, as well as raw sewage and associated pollutants 21 from the Collection System and/or from privately-owned lateral sewer lines that enter the MS4 via 22 exfiltration or other means, are discharged to the Receiving Waters. 23 83. The discharge of urban stormwater, dry-weather discharges, and raw and/or inadequately- 24 treated sewage via Mountain View’s MS4 adversely affects the beneficial uses of the Receiving Waters 25 and poses a serious risk to fisheries, wildlife habitat, and human health. 26 84. Raw sewage contains human waste, viruses, protozoa, mold spores, Bacteria, and 27 chemicals that cause cancer or reproductive toxicity. These chemicals come from solvents, detergents, 28 cleansers, inks, pesticides, paints, pharmaceuticals, and other chemicals used by households and

Complaint 12 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 13 of 18

1 businesses and discarded to sewage collection systems. Exfiltrating raw sewage enters the Mountain 2 View MS4 and then subsequently flows directly or with stormwater to surface waters, resulting in the 3 addition of these pollutants to the Receiving Waters. 4 85. Information available to Baykeeper indicates the presence of Bacteria in the Receiving 5 Waters following modest storm events and even during dry weather at concentrations orders of 6 magnitude greater than WQS for water contact recreation for E. Coli, enterococci, fecal coliform, and 7 total coliform. 8 86. Contaminated streams run through many of Mountain View’s parks, posing public health 9 threats, particularly to children, and significantly diminishing recreation-based beneficial uses. 10 87. The intensive use of the Bay and its tributaries for commercial and sport fishing, shellfish 11 harvesting, and water-contact recreation increases the likelihood that people will come into direct 12 contact with the raw sewage and other pollutants discharged by Mountain View. 13 88. Untreated raw sewage also affects people who eat fish caught in these waters. Toxic 14 chemicals bio-accumulate in the Bay’s food web, i.e., contaminants absorbed by plankton accumulate in 15 fish and birds farther up the food chain and ultimately transfer to human consumers. Contaminated fish 16 are particularly damaging to ethnic and economic minority communities, who eat a greater-than-average 17 amount of locally-caught fish. 18 89. The pollutants impairing Stevens Creek and South San Francisco Bay are found in 19 discharges of raw and/or inadequately-treated sewage. 20 90. By discharging urban stormwater runoff, dry-weather non-stormwater discharges, and 21 raw and/or inadequately-treated sewage and associated pollutants into the Mountain View MS4 that 22 directly leads to the Receiving Waters, which are waters of the United States, in violation of the Clean 23 Water Act, Mountain View has contributed and continues to contribute to the continuing impairment of 24 these waters. 25 E. Mountain View’s Violations of the MS4 Permit 1. Failure to Effectively Prohibit Discharges of Non-Stormwater to and from 26 the Mountain View MS4 27 91. Urban stormwater, dry-weather discharges, and other non-stormwater discharges 28 regularly discharge into the Mountain View MS4 and Receiving Waters.

Complaint 13 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 14 of 18

1 92. Raw sewage regularly discharges from the Collection System to the Mountain View MS4 2 and Receiving Waters via exfiltration. 3 93. Raw sewage discharges, or exfiltrates, from the Collection System underground via 4 cracks, displaced joints, holes, and other leakage points in the Collection System. Some of the raw 5 sewage that exfiltrates from the Collection System in areas where the Collection System is in proximity 6 to the Mountain View MS4 enters the Mountain View MS4 via cracks, displaced joints, and other 7 compromised portions of the Mountain View MS4. 8 94. Information available to Baykeeper indicates there is a high risk of exfiltration from the 9 Collection System to the Mountain View MS4 wherever a compromised sewer pipe is located above and 10 within five meters laterally of a compromised section of storm drain pipe. 11 95. Information available to Baykeeper indicates that raw sewage exfiltrates from the 12 Collection System and enters the Mountain View MS4 every day. 13 96. Raw sewage that enters the storm drain pipe via exfiltration is a non-stormwater 14 discharge to the MS4. 15 97. Mountain View is not effectively prohibiting discharges of raw sewage to the MS4 via 16 exfiltration. 17 98. Raw sewage that reaches the Mountain View MS4 through exfiltration flows untreated to 18 the Receiving Waters. 19 99. Mountain View discharges non-stormwater to the Receiving Waters when raw sewage 20 that enters the MS4 via exfiltration is subsequently discharged from the MS4. 21 8. Illegal Discharges of Bacteria from the MS4 22 100. Data available to Baykeeper demonstrates that discharges from the Mountain View MS4 23 contain elevated concentrations of pollutants such as total coliform, fecal coliform, E. Coli, and 24 enterococci at levels exceeding applicable WQS by orders of magnitude. See Exhibit A to Notice Letter 25 (Table 1 listing results of water quality monitoring). 26 101. Data available to Baykeeper demonstrates that dry-weather non-stormwater discharges 27 from the Mountain View MS4 contain elevated concentrations of pollutants such as E. Coli and 28 enterococci at levels exceeding applicable WQS by orders of magnitude. See Exhibit A to Notice Letter

Complaint 14 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 15 of 18

1 (Table 1 listing results of water quality monitoring and sampling conditions). 2 102. Discharges with elevated levels of Bacteria and other pollutants adversely affect the 3 beneficial uses of the Receiving Waters. 4 103. Mountain View’s discharges from its MS4 outfalls with concentrations of pollutants such 5 as total coliform, fecal coliform, E.coli, and enterococci in exceedance of WQS demonstrate that 6 Mountain View’s discharges cause or contribute to a violation of an applicable WQS. 7 VII. CLAIMS FOR RELIEF

8 FIRST CAUSE OF ACTION 9 Illegal Discharges of Non-Stormwater MS4 Permit, Discharge Prohibition A.1. 10 33 U.S.C. §§ 1311(a), 1342 11 104. Plaintiff incorporates the allegations contained in the above paragraphs as though fully 12 set forth herein. 13 105. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s 14 discharges of dry-weather non-stormwater discharges and raw sewage via exfiltration to the Mountain 15 View MS4 are ongoing and continuous. 16 106. Mountain View’s discharges from the Mountain View MS4 to Receiving Waters of dry- 17 weather non-stormwater and raw sewage via exfiltration are ongoing and continuous. 18 107. Baykeeper is informed and believes, and thereon alleges, that each of these discharges is 19 itself a violation of Discharge Prohibition A.1. of the MS4 Permit and the Clean Water Act. 20 108. Baykeeper is further informed and believes, and thereon alleges, that these discharges 21 demonstrate that Mountain View fails to effectively prohibit discharges into and from its MS4 as 22 required by the MS4 Permit and the Clean Water Act. 23 109. Baykeeper is informed and believes, and thereon alleges, that Mountain View has 24 therefore been in daily and continuous violation of Discharge Prohibition A.1. of the MS4 Permit every 25 day since at least December 4, 2014. 26 110. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s 27 violations of Discharge Prohibition A.1. of the MS4 Permit and the CWA are ongoing. 28 111. Mountain View’s violations will continue each day and/or occasion that it fails to

Complaint 15 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 16 of 18

1 effectively prohibit the discharge of raw sewage to or from the Mountain View MS4 in violation of the 2 requirements of the MS4 Permit and the Clean Water Act. 3 112. Each and every violation of Discharge Prohibition A.1. of the MS4 Permit is a separate 4 and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a). 5 113. By committing the acts and omissions alleged above, Mountain View is subject to an 6 assessment of civil penalties for each and every violation of the CWA occurring from December 4, 2014 7 to present pursuant to sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d), 1365, and the 8 Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4. 9 114. An action for injunctive relief under the CWA is authorized by 33 U.S.C. § 1365(a). 10 Continuing commission of the acts and omissions alleged above would irreparably harm Baykeeper and 11 the citizens of the State of California, for which harm Baykeeper has no plain, speedy, or adequate 12 remedy at law. 13 WHEREFORE, Plaintiff prays for judgment against Mountain View as set forth hereafter. 14 SECOND CAUSE OF ACTION Illegal Discharges of Polluted Stormwater 15 MS4 Permit, Receiving Water Limitations B.1. and B.2. 16 33 U.S.C. §§ 1311(a), 1342 115. Plaintiff incorporates the allegations contained in the above paragraphs as though fully 17 set forth herein. 18 116. Baykeeper is informed and believes, and thereon alleges, that Mountain View has 19 discharged and continues to discharge stormwater containing levels of pollutants that adversely impact 20 human health and/or the environment. 21 117. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s 22 discharges of stormwater containing levels of pollutants that adversely impact human health and/or the 23 environment violate Receiving Water Limitation B.1. of the MS4 Permit and the Clean Water Act. 24 118. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s 25 discharges from the Mountain View MS4 contain levels of pollutants that adversely impact human 26 health and/or the environment during and/or after every significant rain event and whenever non- 27 stormwater in the form of exfiltrating raw sewage or dry-weather non-stormwater discharges from the 28

Complaint 16 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 17 of 18

1 Mountain View MS4 since at least December 4, 2014. 2 119. Baykeeper is informed and believes, and thereon alleges, that Mountain View has 3 discharged and continues to discharge stormwater containing levels of pollutants that cause or contribute 4 to violations of applicable WQS. 5 120. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s 6 discharges of stormwater containing levels of pollutants that cause or contribute to exceedances of 7 applicable WQS violate Receiving Water Limitation B.2. of the MS4 Permit and the Clean Water Act. 8 121. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s 9 discharges from its MS4 contain levels of pollutants that cause or contribute to exceedances of 10 applicable WQS during and/or after every significant rain event and whenever non-stormwater in the 11 form of exfiltrating raw sewage or dry-weather non-stormwater discharges from the MS4 since at least 12 December 4, 2014. 13 122. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s 14 violations of Receiving Water Limitation B.1. of the MS4 Permit and the CWA are ongoing. 15 123. Baykeeper is informed and believes, and thereon alleges, that Mountain View’s 16 violations of Receiving Water Limitation B.2. of the MS4 Permit and the CWA are ongoing. 17 124. Mountain View will continue to be in violation of the MS4 Permit and the CWA each 18 and every time its discharges contain pollutants at levels that violate Receiving Water Limitation B.1. of 19 the MS4 Permit. 20 125. Mountain View will continue to be in violation of the MS4 Permit and the CWA each 21 and every time its discharges contain pollutants at levels that violate Receiving Water Limitation B.2. of 22 the MS4 Permit. 23 126. Each and every violation of Receiving Water Limitation B.1. of the MS4 Permit is a 24 separate and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a). 25 127. Each and every violation of Receiving Water Limitation B.2. of the MS4 Permit is a 26 separate and distinct violation of section 301(a) of the CWA, 33 U.S.C. § 1311(a). 27 128. By committing the acts and omissions alleged above, Mountain View is subject to an 28 assessment of civil penalties for each and every violation of the CWA occurring from December 4, 2014

Complaint 17 Case 5:20-cv-00826 Document 1 Filed 02/04/20 Page 18 of 18

1 to present pursuant to sections 309(d) and 505 of the CWA, 33 U.S.C. §§ 1319(d), 1365, and the 2 Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4. 3 129. An action for injunctive relief under the CWA is authorized by 33 U.S.C. § 1365(a). 4 Continuing commission of the acts and omissions alleged above would irreparably harm Baykeeper and 5 the citizens of the State of California, for which harm Baykeeper has no plain, speedy, or adequate 6 remedy at law. 7 WHEREFORE, Plaintiff prays for judgment against Mountain View as set forth hereafter. 8 VIII. RELIEF REQUESTED 9 Wherefore, Plaintiff respectfully requests that this Court grant the following relief: 10 a. Declare Mountain View to have violated and to be in violation of the MS4 Permit and 11 Sections 301(a) and 402 of the CWA, 33 U.S.C. §§ 1311(a), 1342, for its unlawful discharges of 12 pollutants and violations of the MS4 Permit and the CWA; 13 b. Enjoin Mountain View from violating the MS4 Permit and Sections 301(a) and 402 of 14 the CWA, 33 U.S.C. §§ 1311(a), 1342; 15 c. Order Mountain View to pay civil monetary penalties for each violation of the CWA at 16 $37,500.00 per day for violations occurring between December 4, 2014 and November 1, 2015, and 17 $54,833.00 per day per violation for violations that occurred after November 2, 2015, as permitted by 33 18 U.S.C. § 1319(d) and Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4; 19 d. Award Plaintiff its reasonable costs of suit, including attorney, witness, expert, and 20 consultant fees, as permitted by Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d); and 21 e. Grant any other relief as this Court may deem appropriate. 22 23 Dated: February 4, 2020 Respectfully submitted,

24 25 /s/ Nicole C. Sasaki NICOLE C. SASAKI 26 CHRISTOPHER LEN SAN FRANCISCO BAYKEEPER, INC. 27 Attorneys for Plaintiff San Francisco Baykeeper 28

Complaint 18 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 1 of 25

APPENDIX A

Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 2 of 25

December 4, 2019

Transmitted via Certified Mail Return Receipt Requested

Juan Diaz, Fire Chief Fire Department, Fire & Environmental Protection Division City Hall 500 Castro Street, 4th Floor Mountain View, California 94041

Michael A. Fuller, Director Public Works Department, Public Services Division City Hall 500 Castro Street, 1st Floor Mountain View, California 94041

Daniel H. Rich, City Manager City Hall 500 Castro Street, 3rd Floor Mountain View, California 94041

RE: Notice of Violation and Intent to File Suit Under the Clean Water Act

Dear Mssrs. Diaz, Fuller, and Rich:

I am writing on behalf of San Francisco Baykeeper (“Baykeeper”) to notify you that the City of Mountain View is in violation of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251, et seq. (“Clean Water Act” or CWA) and to invite you to contact me immediately to schedule a meeting and begin discussing solutions.

Baykeeper is a non-profit public benefit corporation dedicated to the preservation, protection, and defense of the environment, wildlife, and natural resources of the San Francisco Bay and its tributaries. As explained below, this letter provides notice of the City of Mountain View’s unlawful discharge of bacterial pollution in violation of the Municipal Regional Stormwater NPDES Permit, NPDES Permit No. CAS612008, Order No. R2-2015-0049, California Regional Water Quality Control Board San Francisco Bay Region (“MS4 Permit”).

The MS4 Permit regulates discharges to and from Mountain View’s municipal separate storm sewer system (“MS4”). The violations of the MS4 Permit alleged in this letter concern Mountain View’s failure to develop and implement the plans necessary to prevent the discharge of raw sewage and associated pollutants to and from its MS4 and its failure to prevent discharges from its MS4 that cause and contribute to violations of water quality standards in local creeks.

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 3 of 25 Page 2 of 13 December 4, 2019

Municipal stormwater is a significant source of bacteria to urban creeks. Bacteria concentrations recorded from Mountain View’s waterways indicate they are unsafe for human contact following minor storm events and even during dry weather. High bacteria concentrations can be directly attributed to discharges from urban stormwater systems.1 Stormwater outfalls are proven to be a significant pathway for bacterial loading.

Section 505(b) of the Clean Water Act, 33 U.S.C. § 1365(b), requires a citizen to give notice of intent to file suit sixty (60) days prior to the initiation of a civil action under Section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a). Notice must be given to the head of the entity responsible for the violations, the Administrator of the United States Environmental Protection Agency (EPA), the Regional Administrator of the EPA for the region in which the violations occurred, and the head of the water pollution control agency for the state in which the violations occurred. 33 U.S.C. § 1365(b)(1)(A), see also 40 C.F.R. § 135.2(a)(2).

As required by the Clean Water Act, Baykeeper hereby places Mountain View on formal notice that, after expiration of sixty (60) days from the date of this Notice of Violation and Intent to File Suit (“Notice Letter”), Baykeeper intends to file suit in federal district court pursuant to Section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), against the persons responsible for the violations described in this Notice Letter. Within the 60-day period, we strongly encourage you to contact us so that we may resolve the issues described herein. While we do not anticipate delaying filing suit at the end of the 60-day period, we do hope to be on track to settle the issues well before the need for costly litigation. Baykeeper would appreciate hearing from you promptly to arrange a meeting.

I. ORGANIZATION GIVING NOTICE OF CLEAN WATER ACT VIOLATIONS Baykeeper is a non-profit public benefit corporation organized under the laws of California, with its main office in Oakland, California. Baykeeper defends the Bay and holds polluters accountable. We patrol on the water, investigate and stop polluters, and strengthen laws that protect the Bay. For more than thirty years, our lawyers, scientists, and policy advocates have taken on the biggest threats to San Francisco Bay. Baykeeper’s purpose is to preserve, protect, and defend the environment, wildlife, and natural resources of San Francisco Bay, its tributaries, and other waters in the Bay Area. To further its goals, Baykeeper actively seeks federal and state agency implementation of federal and state water quality-related laws. As necessary, Baykeeper directly initiates enforcement actions on behalf of itself and its members. Baykeeper has more than five thousand members and supporters who use and enjoy San Francisco Bay, its tributaries, and other waters for various recreational, educational, and spiritual purposes.

Baykeeper’s members use and enjoy the Bay shoreline and waters in and around Mountain View, including, but not limited to, South San Francisco Bay, Stevens Creek, and other waters that drain to South San Francisco Bay (these waters are hereinafter referred to as the “Receiving

1 Sercu B, Van de Werfhorst LC, Murray JL, Holden PA. 2011. Sewage exfiltration is a source of storm drain contamination during dry weather in urban watersheds. Environ Sci Technol. 45(17):7151-7.

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 4 of 25 Page 3 of 13 December 4, 2019

Waters”). Specifically, Baykeeper’s members sail, swim, windsurf, stand up paddleboard, picnic, fish, hike, and enjoy the wildlife in and around these waters. Baykeeper’s members’ use and enjoyment of the Receiving Waters has been and continues to be adversely affected by discharges of polluted stormwater runoff, polluted dry weather flows, sewage, and other pollutants via the MS4 to the Receiving Waters, as well as Mountain View’s failure to develop and implement programs to effectively control and monitor these discharges. Mountain View’s discharges of sewage and associated pollutants degrade water quality and harm aquatic life in the Receiving Waters, and thus impair Baykeeper’s members’ use and enjoyment of these waters.

II. THE MUNICIPAL SEPARATE STORM SEWER SYSTEM AND THE ENTITY RESPONSIBLE FOR THE CLEAN WATER ACT VIOLATIONS A. Mountain View’s Municipal Separate Storm Sewer System and the MS4 Permit Mountain View owns and operates its municipal separate storm sewer system (“Mountain View MS4”). An MS4 is defined as “a conveyance or system of conveyances (including roads with drainage systems, municipal streets, catch basins, curbs, gutters, ditches, man-made channels, or storm drains)” owned or operated by a State, city, or town that is designed or used for collecting or conveying stormwater and that discharges to waters of the United States. See 40 C.F.R. § 122.26.(b)(8)(i)-(ii); see also 40 C.F.R. § 122.26(b)(18).2

The Mountain View MS4 consists of streets, curbs, gutters, drop inlets, underground pipes, concrete channels, and other structures that convey stormwater in and around the City of Mountain View. The Mountain View MS4 includes approximately 117.5 miles of storm drain pipes. These pipes, as well as other surface conveyances, discharge to the Receiving Waters. Each time it rains, polluted stormwater and non-stormwater discharge from the Mountain View MS4 to local waters. . Pollutants in these discharges include heavy metals; excessive sediment production from erosion due to anthropogenic activities; petroleum hydrocarbons from sources such as used motor oil; microbial pathogens of domestic sewage origin from illicit discharges; certain pesticides associated with acute aquatic toxicity; excessive nutrient loads, which can cause or contribute to the depletion of dissolved oxygen and/or toxic concentrations of dissolved ammonia; trash, which impairs beneficial uses including, but not limited to, support for aquatic life; and other pollutants which that can cause aquatic toxicity in the receiving waters.3

Clean Water Act Section 402(p), 33 U.S.C. § 1342(p), establishes a framework for regulating municipal stormwater discharges under NPDES permits. Section 402(p) of the CWA requires an NPDES permit for stormwater discharges from an MS4 to waters of the United States. Section 402(p)(3)(B) sets forth requirements that must be in all MS4 permits, including the obligation to effectively prohibit non-stormwater discharges into the storm sewers and to reduce pollutants in discharges to receiving waters to the maximum extent practicable. 33 U.S.C. § 1342(p)(3)(B). Mountain View is one of thirteen cities and towns in Santa Clara County, along with Santa Clara County and Santa Clara Valley Water District (collectively, “Santa Clara Permittees”), that have joined together to form the Santa Clara Valley Urban Runoff Pollution Prevention Program

2 An MS4 is further defined as a sewer system that is not a combined sewer, and is not part of a Publicly Owned Treatment Works. See 40 C.F.R. § 122.26(b)(8)(iii)-(iv). 3 MS4 Permit at Findings, ¶ 14.

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 5 of 25 Page 4 of 13 December 4, 2019

(SCVURPPP). The Santa Clara Permittees, including Mountain View, are subject to the terms and conditions of the MS4 Permit.4 The MS4 Permit allows permittees to discharge stormwater runoff from storm drains and other stormwater conveyances within their jurisdictions. Mountain View has jurisdiction over and/or maintenance responsibilities for the Mountain View MS4. See MS4 Permit, Fact Sheet at A-21.

B. Mountain View’s Sewage Collection System and Sewage Exfiltration to the Mountain View MS4 Mountain View’s wastewater collection system (“Collection System”) is comprised of the Palo Alto Regional Water Quality Control Plant (“Plant”) and the City of Mountain View’s sanitary sewer collection system. The Plant is owned and operated by the City of Palo Alto, and is under a joint powers agreement between Palo Alto, Mountain View, and Los Altos. Mountain View individually owns and operates its Collection System, which consists of approximately 160 miles of gravity sewer pipes that range in size from 4 to 42 inches in diameter, 1 mile of 42-inch force main, and two (2) pump stations. Information available to Baykeeper indicates that 57% of the existing sanitary sewer mains in the Collection System are older than 20 years old and 26% are older than 60 years old. Mountain View does not maintain recorded ages for 38% of the sanitary sewer pipe segments. Data available to Baykeeper also indicates that 89% of the Collection System is comprised of vitrified clay pipes, which are known to be susceptible to cracking and leakage. The City of Los Altos wastewater collection system discharges to Mountain View’s sanitary sewer system. The wastewater conveyed to the Plant is then treated and subsequently discharged to the Renzel Marsh Pond, which drains into Matadero Creek, the Palo Alto Flood Basin, and then into South San Francisco Bay near the Palo Alto Airport. The Collection System is a point source under the Clean Water Act. See 33 U.S.C. § 1362(14).

During the past five (5) years, Mountain View has self-reported twenty (20) sanitary sewer overflows (SSOs) from its Collection System, discharging 3,482 gallons total of raw sewage. Mountain View self-reported that 1,400 gallons of raw sewage reached surface waters, and they recovered the remaining 98% of their self-reported SSOs.5 Mountain View’s SSO spill rates (i.e., number of SSOs per 100 miles of sanitary sewer pipe segments) ranges from zero (0) SSOs in 2016 to 3.82 SSOs per 100 miles in 2015 and 2017. In the past five (5) years, nine (9) SSOs were caused by fats, oil and grease (FOG), eight (8) SSOs were caused by root intrusion, seven (7) SSOs were caused by debris, two (2) SSOs were caused by starting the Shoreline Sewage Pump Station, and one (1) SSO was caused by structural defects. Mountain View has not reported any capacity-related SSOs in the past five (5) years. While Mountain View has reported that minimal raw sewage has

4 The MS4 Permit also regulates separate storm sewer systems in San Mateo, Contra Costa, Alameda, and Solano counties. 5 In addition, Baykeeper questions the accuracy of Mountain View’s self-reporting, and we suspect that Mountain View is engaging in under-reporting of SSOs. In multiple instances, Mountain View self-reported that an SSO started at the exact same time the SSO was reported, and in one instance Mountain View self-reported that it recovered 100% of an SSO and 100% of that same SSO reached surface waters, which is factually impossible. Additionally, it is highly unlikely that Mountain View was able to recover 98% of its SSOs as it has self-reported.

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 6 of 25 Page 5 of 13 December 4, 2019

entered surface waters from these SSOs, SSOs caused by root intrusion indicate structural defects in affected pipe segments.

Mountain View operates, maintains and manages its Collection System improperly, resulting in discharges of raw sewage to the Mountain View MS4 and the Receiving Waters. Raw sewage discharges from the Collection System underground via structural defects, such as cracks, displaced joints, holes, and other leakage points, in the Collection System. This process is referred to as exfiltration. Raw sewage that exfiltrates from the Collection System in areas where the Collection System is in proximity to the Mountain View MS4 has the potential to enter the MS4 via cracks, displaced joints, and other compromised portions of the MS4. Raw sewage that reaches the Mountain View MS4 through exfiltration flows untreated to the Receiving Waters.

C. The Entity Responsible for Operating the Mountain View MS4 and the Collection System Mountain View is a municipality incorporated under the laws of the State of California. The Fire Department, Fire and Environmental Protection Division and the Public Works Department, Public Services Division (Utilities Services Section) and Engineering Division (Engineering Construction and Capital Project Sections) (collectively, “Departments”) are departments of the City of Mountain View. The City of Mountain View and its Departments have offices at City Hall at 500 Castro Street, Mountain View, California 94041. The current Fire Chief of the Fire Department is Juan Diaz. The current Public Works Department Director is Michael A. Fuller. The current City Manager is Daniel H. Rich. Mountain View and/or its Departments are the owner(s) and/or operator(s) of the Mountain View MS4 and the Collection System.

Mountain View and/or the Departments are responsible for operating and maintaining the Mountain View MS4. Operating and maintaining the MS4 includes tasks such as collecting and conveying stormwater through the MS4, preventing non-stormwater materials (including sewage exfiltrating from the Collection System) from entering the MS4, conducting routine maintenance, cleaning and inspecting the MS4, and responding to citizen complaints related to the storm drain system. Further, Mountain View and/or the Departments are responsible for preventing discharges from the MS4 that violate the MS4 Permit.

Mountain View and/or the Departments are also responsible for operating and maintaining the Collection System, which includes tasks such as, but not limited to, collecting and conveying raw sewage through the Collection System, conducting routine maintenance, cleaning and inspecting the Collection System, designing and implementing necessary capital improvements, and responding to SSOs.

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 7 of 25 Page 6 of 13 December 4, 2019

III. THE LOCAL WATERWAYS AND THE MANNER IN WHICH THEY ARE IMPACTED BY MOUNTAIN VIEW’S CLEAN WATER ACT VIOLATIONS A. The Receiving Waters The storm drain pipes and other conveyances in the Mountain View MS4 discharge to Stevens Creek and other local waterbodies that are tributaries to these waters. Stevens Creek flows from Stevens Creek Reservoir, northward for a total of 12.5 miles through the foothills in the cities of Cupertino and Los Altos, across the alluvial plain through the cities of Sunnyvale and Mountain View and then discharges into South San Francisco Bay north of Moffett Field Naval Air Station.

Stevens Creek is an important ecological resource, as it is one of the last remaining viable habitats for federally-threatened Central California Coast Steelhead. The federally-endangered California clapper rail and salt marsh harvest mouse live in the brackish reaches of the Creek. There is a conservation area dedicated to the western burrowing owl, a species of concern under the Migratory Bird Treaty Act, where Stevens Creek reaches South San Francisco Bay. However, Stevens Creek is impaired for trash and water column toxicity.

San Francisco Bay is an ecologically-sensitive waterbody and a defining feature of Northern California. San Francisco Bay is an important and heavily-used resource, with special aesthetic and recreational significance for people living in the surrounding communities. Aquatic sports are very popular in the Bay Area. The San Francisco Bay shoreline has numerous highly-valued beaches with public access that offer unique recreational opportunities for swimmers, kayakers, stand up paddleboarders, and windsurfers. The large-scale urbanization of the Bay Area makes these recreational and aesthetic uses critically important to the quality of life of Bay Area residents. However, San Francisco Bay’s water quality is impaired and continues to decline. South San Francisco Bay is impaired for chlordane, dichlorodiphenyltrichloroethane (DDT), dieldrin, dioxin compounds, furan compounds, invasive species, mercury, polychlorinated biphenyls (PCBs), and selenium. San Francisco Bay’s once-abundant and varied fisheries have been drastically diminished by pollution, and much of the wildlife habitat of San Francisco Bay has been degraded.

B. Water Quality Standards and Impairment of the Receiving Waters The Water Quality Control Plan for the San Francisco Bay Basin (“Basin Plan”) designates beneficial uses and water quality objectives for waters receiving discharges from the Collection System and Mountain View’s MS4. The existing beneficial uses for Stevens Creek include: freshwater replenishment, groundwater recharge, cold freshwater habitat, fish migration, preservation of rare and endangered species, fish spawning, warm freshwater habitat, wildlife habitat, water contact recreation, and noncontact water recreation. The existing beneficial uses for South San Francisco Bay include: estuarine habitat, industrial service supply, commercial and sport fishing, shellfish harvesting, wildlife habitat, preservation of rare and endangered species, water contact recreation, noncontact water recreation, fish migration, fish spawning, and navigation. See Water Quality Control Plan, San Francisco Basin (Region 2), Chapter 2.

The Basin Plan provides narrative and numeric water quality objectives to define appropriate environmental quality and to control activities that can adversely affect aquatic systems. Water quality objectives are necessary to protect the present and potential beneficial uses. Numeric

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 8 of 25 Page 7 of 13 December 4, 2019

objectives describe pollutant concentration, physical/chemical conditions of the water itself, and the toxicity of the water to aquatic organisms, and are designed to represent the maximum amount of pollutants that can remain in the water column without causing any adverse effect on aquatic organisms, on people consuming those organisms or water, and on other current or potential beneficial uses. Table 3-1 of the Basin Plan provides numeric water quality objectives for bacteria, specifically fecal coliform, total coliform, and enterococcus. Table 3-2 of the Basin Plan provides the EPA’s bacteriological criteria for water contact recreation based on the frequency of use a particular area receives. Water quality objectives for bacteria in Table 3-1 of the Basin Plan shall be strictly applied. See Water Quality Control Plan San Francisco Basin (Region 2), Chapter 3.

In August 2018, the State Water Resources Control Board, adopted Part 3 of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California: Bacteria Provisions and a Water Quality Standards Variance Policy (“Bacteria Provisions”), which applies to all surface waters, enclosed bays, and estuaries of the state that have the water contact recreation beneficial use, including the Receiving Waters. The Bacteria Provisions establish numeric water quality objectives for E. Coli and enterococci. See State Water Resources Control Board, Part 3 of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California: Bacteria Provisions and a Water Quality Standards Variance Policy.

Information available to Baykeeper documents the presence of fecal indicator bacteria in the Receiving Waters following modest storm events and even during dry weather at concentrations orders of magnitude greater than water quality standards for water contact recreation E. Coli, enterococci, fecal coliform, and total coliform. Targeted epidemiological studies have shown a number of adverse health outcomes associated with fecally-polluted recreational water. Such health impacts result in a significant burden of disease and economic loss. Studies conducted worldwide have correlated gastrointestinal symptoms to recreating in water with high bacterial counts.6 California-specific studies show a higher incidence of upper respiratory and gastrointestinal symptoms associated with swimming in the vicinity of storm drains contaminated with high bacteria

6 Pruss, A. 1998. Review of epidemiological studies on health effects from exposure to recreational water. International Journal of Epidemiology 27(1):1-9, available at: https://watermark.silverchair.com/27-1- 1.pdf?token=AQECAHi208BE49Ooan9kkhW_Ercy7Dm3ZL_9Cf3qfKAc485ysgAAAjYwggIyBgk qhkiG9w0BBwagggIjMIICHwIBADCCAhgGCSqGSIb3DQEHATAeBglghkgBZQMEAS4wEQQ MyhzbgrFytFWPNJl7AgEQgIIB6apE4SkOD- cC8WVjg7L7XGlAPjvCLAQNLVQb6sRAY6f3qngmDDefBlpk_RLgouW9Y- vHTbLtVuNu7kW35gNt832hKlNN7fktQkeIuUC9HgQhKi709PBl5SbqKznRT_2aA__m_etMpgFY oHLwlrupnAkrGsvmB6k9PlNDpfFhPIud8MNYrL21Ms8_ZIRKaF1aPXt1gbAJKWWh7jPsNNBTe xQq7GOelgOd-bU63NPVLWEK-jiR8mmnkIQ-X5fSU_I- CEKQKtWbxjtpSRha9RUrsNP1Y9OJSdiA9fYA8z3gsWmmT- jxEUgsyzpKTuWkBo_Dv9EvplDp04FFlxktV91ngyC8_88D3_8GfigrCs1XcAb87ZglgNsXVAFYaJ oL1Z0gvJS3LpCpStiSjx121m4qPsbOjjL-x- evIcJVKvif_DgbMWRc5uYU4SgbGIYyTWvAFfocJfKIvBdRnVSxkV8w31lWIkDO1J0Xsml7XzH bySc7WD9E8MMmrfPQTsZ7rLNTZc2I4IUplL- S5y2EkAUrJbt7fxcv5RbKjNfapT56bfWpfF0MUOLBtTpl5UQIPYjDnhfWClWJ9DK0RskiueNjFw F2OLbzOFHVFJfwjPb8RO2IHiIImGNJHa55__S2K5jx6XZXxf5Kp9KDWQ.

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 9 of 25 Page 8 of 13 December 4, 2019

counts.7 Contaminated creeks run through Mountain View’s parks, posing public health threats, particularly to children, and significantly diminishing recreation-based beneficial uses.

Additionally, the Receiving Waters are also listed on the State of California’s 2014/2016 Clean Water Act Section 303(d) list of impaired waterbodies. A waterbody that is listed as impaired cannot support the designated beneficial uses for that waterbody. South San Francisco Bay is listed as impaired for chlordane, dichlorodiphenyltrichloroethane (DDT), dieldrin, dioxin compounds (including 2,3,7,8-TCDD), furan compounds, invasive species, mercury, polychlorinated biphenyls (PCBs), and selenium.

C. MS4 Discharges Impacts on Receiving Waters and their Beneficial Uses During the 2017-2018 and 2018-2019 wet seasons, Baykeeper collected water quality samples from three (3) of Mountain View’s MS4 outfalls and within Stevens Creek, as well as a reference site upstream of any MS4 outfalls. Sampling results demonstrated the presence of fecal indicator bacteria at concentrations that were orders of magnitude greater than numeric water quality objectives for water contact and noncontact recreation. By comparison, the samples at the reference site did not exceed applicable numeric water quality objectives for fecal indicator bacteria. In addition, the samples tested positive for a human indicator for bacteria, and results from all sampling locations, except the reference site, indicated levels of human fecal biomarkers (i.e., humans are a source of the bacterial pollution). See Exhibit A attached hereto. This data indicates that Mountain View’s MS4 discharges are causing and contributing to exceedances of fecal indicator bacteria water quality objectives in the Receiving Waters.

Urban stormwater runoff and dry weather discharges are recognized sources of impairing pollutants, including human fecal matter. The discharge of urban stormwater runoff, dry weather discharges, and raw and/or inadequately-treated sewage via the MS4 harms the Receiving Waters and poses a serious risk to fisheries, wildlife habitat, and human health.

Raw sewage and associated pollutants from the Collection System that enter the Mountain View MS4 via exfiltration or other means are a significant source of pollutants and/or non- stormwater discharges to the MS4, that are then discharged to the Receiving Waters. Raw sewage contains human waste, viruses, protozoa, mold spores, bacteria, and chemicals that cause cancer or reproductive toxicity. These chemicals come from solvents, detergents, cleansers, inks, pesticides, paints, pharmaceuticals, and other chemicals used by households and businesses and then discarded to sewage collection systems.8 High concentrations of these pollutants are typically found in raw

7 Haile RW, Witte JS, Gold M, Cressey R, McGee C, Millikan RC, Glasser A, Harawa N, Ervin C, Harmon P, Harper J, Dermand J, Alamillo J, Barrett K, Nides M, Wang G. The Health Effects of Swimming in Ocean Water Contaminated by Storm Drain Runoff. Epidemiology 10(4):355-63, available at: https://journals.lww.com/epidem/pages/articleviewer.aspx?year=1999&issue=07000&article=00004 &type=abstract#pdf-link. 8 See Dorfman, Mark, Swimming in Sewage: The Growing Problem of Sewage Pollution and How the Bush Administration Is Putting Our Health and Environment at Rick, Natural Resources Defense Council, Feb. 2004, available at https://www.csu.edu/cerc/documents/SwimmingInSewage.pdf;

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 10 of 25 Page 9 of 13 December 4, 2019

and/or inadequately-treated sewage. Exfiltrating raw sewage enters the Mountain View MS4 and then subsequently flows directly or with stormwater to surface waters, resulting in the addition of these pollutants to the Receiving Waters. The pollutants impairing South San Francisco Bay are found in discharges of raw and/or inadequately-treated sewage.

Furthermore, the intensive use of San Francisco Bay and its tributaries for commercial and sport fishing, shellfish harvesting, and water-contact recreation increases the likelihood that people will come into direct contact with fecal matter and other pollutants in stormwater and non- stormwater discharged by the City of Mountain View. Polluted stormwater and non-stormwater discharges also affect people who eat fish caught in the Receiving Waters. Toxic chemicals bio- accumulate in the San Francisco Bay’s food web; i.e., contaminants absorbed by plankton accumulate in fish and birds farther up the food chain and ultimately transfer to human consumers. Contamination of fish is particularly damaging to ethnic and economic minorities, who eat a greater- than-average amount of locally-caught fish.

By discharging urban stormwater runoff, dry weather non-stormwater discharges, and raw and/or inadequately-treated sewage and associated pollutants into Mountain View’s MS4 system that directly leads to waters of the United States, Mountain View has caused and/or contributed to the continuing impairment of these waters in violation of the MS4 Permit and Clean Water Act.

IV. CLEAN WATER ACT VIOLATIONS A. Mountain View’s Discharges of Polluted Water in Violation of Receiving Water Limitations B.1.e and B.2 of the MS4 Permit and the Clean Water Act. Receiving Water Limitation B.1.e of the MS4 Permit prohibits discharges that cause conditions to create a condition of nuisance or adversely affect beneficial uses of waters of the State, specifically, substances present in concentrations or quantities that would cause deleterious effects on aquatic biota, wildlife, or waterfowl, or that render any of these unfit for human consumption. Discharges that create a condition of nuisance or adversely affect beneficial uses of waters of the State constitute violations of Receiving Water Limitation B.1 of the MS4 Permit and the Clean Water Act.

Receiving Water Limitation B.2 of the MS4 Permit prohibits discharges that cause or contribute to a violation of any applicable water quality standard for receiving waters.9 Discharges

Frick, E., et al., Presence of Pharmaceuticals in Wastewater Effluent and Drinking Water, Metropolitan Atlanta, Georgia July-Sept. 1999, Proceedings of the 2001 Georgia Water Resources Conference, Mar. 26-27, 2001; Associated Press, Death by Dirty Water: Storm runoff a risk for fish, Wash. Post, Nov. 17, 2014, available at https://www.oregonlive.com/today/2014/11/death_by_dirty_water_storm_run.html. 9 Water Quality Standards include pollutant concentration levels determined by the State Water Resources Control Board and the EPA to be protective of the Beneficial Uses of the receiving waters. Discharges above Water Quality Standards contribute to the impairment of the receiving waters’ Beneficial Uses. Applicable Water Quality Standards include, among others, those set forth in the Basin Plan and the Criteria for Priority Toxic Pollutants in the State of California, 40 C.F.R. § 131.38 (CTR).

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 11 of 25 Page 10 of 13 December 4, 2019

that contain pollutants in excess of an applicable water quality standard violate Receiving Water Limitation B.2 of the MS4 Permit and the Clean Water Act.

Available data demonstrates that discharges from the Mountain View MS4 contain elevated concentrations of pollutants, such as total coliform, fecal coliform, E. Coli, and enterococci, at levels exceeding applicable water quality standards by orders of magnitude. See, e.g., Exhibit A (Table 1 listing results of water quality monitoring); see also State Water Resources Control Board, Part 3 of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California: Bacteria Provisions and a Water Quality Standards Variance Policy (“Bacteria Provisions”); see also Basin Plan Tables 3-1 and 3-2. Discharges with elevated levels of bacteria and other pollutants is a per se nuisance, and adversely affect the beneficial uses of the Receiving Waters, and thus violate Receiving Water Limitation B.1 of the MS4 Permit and the Clean Water Act.

Further, Mountain View’s discharges from its MS4 outfalls with concentrations of pollutants, such as total coliform, fecal coliform, and enterococci, that exceed water quality standards demonstrate that Mountain View’s discharges cause or contribute to a violation of an applicable water quality standard, in violation of Receiving Water Limitation B.2 of the MS4 Permit and the Clean Water Act.

Information available to Baykeeper indicates that the discharges from the Mountain View MS4 violate Receiving Water Limitations B.1 and B.2 every time Mountain View’s MS4 discharges. These violations are ongoing and will continue each time contaminated water is discharged in violation of Receiving Water Limitation B.1 of the MS4 Permit and Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a). Each time discharges from the Mountain View MS4 cause or contribute to a violation of an applicable water quality standard is a separate and distinct violation of Receiving Water Limitation B.2 of the MS4 Permit and Section 301(a) of the Clean Water Act, 33 U.S.C. § 1311(a). Mountain View is subject to civil penalties for all violations of the Clean Water Act occurring in the five (5) years prior to the date of this Notice Letter.

B. Mountain View’s Non-Stormwater Discharges to and from the Mountain View MS4 in Violation of Discharge Prohibition A.1 of the MS4 Permit and the Clean Water Act. The MS4 Permit contains prohibitions and limitations on the discharge of pollutants into and from Mountain View MS4. See MS4 Permit, Discharge Prohibitions. Discharge Prohibition A.1 of the MS4 Permit requires that Mountain View effectively prohibit the discharges of non-stormwater into the Mountain View MS4. Discharge Prohibition A.1 of the MS4 Permit also requires that Mountain View effectively prohibit discharges of non-stormwater from the Mountain View MS4 to surface waterbodies. As explained below, Mountain View has violated and continues to violate this provision by failing to effectively prohibit the discharge of non-stormwater into and out of the Mountain View MS4.

Information available to Baykeeper demonstrates that dry weather flows (i.e., non- stormwater discharges) from the Mountain View MS4 to surface waterbodies cause and contribute to nuisance and water quality standard exceedances in the Receiving Waters. “Dry weather,” defined

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 12 of 25 Page 11 of 13 December 4, 2019

conservatively, is 0.0 inches of precipitation within forty-eight (48) hours of water quality sampling. Baykeeper collected dry weather water quality samples from the Receiving Waters on February 22, 2019, a date preceded by more than forty-eight (48) hours with zero (0) precipitation. Most of the sampling results from February 22, 2019 exceed water quality objectives for E. Coli and enterococci, thus indicating that Mountain View’s MS4 discharges are causing and contributing to exceedances of fecal indicator bacteria water quality objectives in the Receiving Waters. See Exhibit A attached hereto.

Information available to Baykeeper indicates that urban runoff containing fecal matter and other pollutants enters the Mountain View MS4 during both wet and dry weather. Further, information available to Baykeeper indicates that raw sewage exfiltrates from the Collection System and enters the Mountain View MS4 every day. In Mountain View’s Collection System, there is a high risk of exfiltration to the Mountain View MS4 wherever a compromised sanitary sewer pipe is located above and within five (5) meters laterally of a compromised section of storm drain pipe.10 Raw sewage that enters storm drain pipes via exfiltration is a non-stormwater discharge to the Mountain View MS4 that the City of Mountain View is not effectively prohibiting as required by the MS4 Permit.

Information available to Baykeeper indicates that raw sewage and associated pollutants that reach the Mountain View MS4 is discharged to the Receiving Waters in violation of Discharge Prohibition A.1 of the MS4 Permit. These illegal discharges occur when raw sewage that enters the Mountain View MS4 via exfiltration is subsequently discharged to Receiving Waters. Information available to Baykeeper indicates Mountain View’s program for prohibiting raw sewage from discharging from the MS4 to Receiving Waters is not effective.

Mountain View’s discharges of non-stormwater to the Mountain View MS4 are ongoing and continuous. Mountain View’s discharges of non-stormwater from the Mountain View MS4 to Receiving Waters are ongoing and continuous. Each of these discharges is itself a violation of Discharge Prohibition A.1 of the MS4 Permit. In addition, these discharges demonstrate that Mountain View fails to effectively prohibit discharges into and from the Mountain View MS4 as required by the MS4 Permit. Mountain View has therefore been in daily and continuous violation of Discharge Prohibition A.1 of the MS4 Permit every day since at least December 4, 2014. Each day and/or occasion that Mountain View has discharged and continues to discharge non-stormwater into or from the Mountain View MS4 in violation of the MS4 Permit’s Discharge Prohibition A.1 is a separate and distinct violation of the Clean Water Act. Mountain View’s violations will continue each day and/or occasion that Mountain View fails to effectively prohibit the discharge of raw sewage into or from the Mountain View MS4 in violation of the requirements of the MS4 Permit and the Clean Water Act. Mountain View is subject to civil penalties for all violations of the Clean Water Act occurring in the five (5) years prior to the date of this Notice Letter.

10 See City of Santa Barbara, Creeks Division, et al., Tools for Tracking Human Fecal Pollution in Urban Storm Drains, Creeks, and Beaches, Sept. 1, 2012, available at: https://www.santabarbaraca.gov/civicax/filebank/blobdload.aspx?BlobID=16722.

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 13 of 25 Page 12 of 13 December 4, 2019

V. NAME AND ADDRESS OF NOTICING PARTY San Francisco Baykeeper, Inc. 1736 Franklin Street, Suite 800 Oakland, California 94612 (510) 735-9700

VI. COUNSEL Baykeeper is represented by the following counsel in this matter, to whom all communications should be directed:

Nicole C. Sasaki, Staff Attorney Christopher Len, Managing Attorney San Francisco Baykeeper 1736 Franklin Street, Suite 800 Oakland, California 94612 Email: [email protected] Email: [email protected] (510) 735-9700 x110

Daniel Cooper Cooper & Lewand-Martin, Inc. 1004B O’Reilly Avenue San Francisco, California 94129 Email: [email protected] (415) 360-2962

Jason Flanders Erica Maharg Aqua Terra Aeris Law Group 490 43rd Street, Suite 108 Oakland, California 94609 Email: [email protected] (916) 202-3018 Email: [email protected] (510) 473-8793

VII. REMEDIES Upon expiration of the 60-day notice period, Baykeeper will file a citizen suit enforcement action pursuant to Section 505(a) of the Clean Water Act, 33 U.S.C. § 1365(a), for the above- referenced violations. Baykeeper will seek injunctive relief preventing further violations of the Clean Water Act pursuant to Sections 505(a) and (d), 33 U.S.C. § 1365(a) and (d), declaratory relief, and such other relief as permitted by law. Pursuant to Section 309(d) of the Clean Water Act, 33 U.S.C. § 1319(d), and the Adjustment of Civil Monetary Penalties for Inflation, 40 C.F.R. § 19.4, each separate violation of the Clean Water Act subjects the violator to a penalty for all violations

Mountain ViewCase MS4 5:20-cv-00826 – Notice Letter Document 1-1 Filed 02/04/20 Page 14 of 25 Page 13 of 13 December 4, 2019

occurring during the period commencing five (5) years prior to the date of a notice of intent to file suit letter. The Clean Water Act imposes civil penalty liability of up to $37,500 per day per violation for violations occurring between January 12, 2009 and November 2, 2015, and up to $54,833 per day per violation for violations occurring after November 2, 2015. 33 U.S.C. § 1319(d); 40 C.F.R. §§ 19.1-19.4. Lastly, pursuant to Section 505(d) of the Clean Water Act, 33 U.S.C. §1365(d), Baykeeper will seek to recover its costs, including attorneys’ and experts’ fess, associated with this enforcement action.

As noted above, Baykeeper would like to meet with you to discuss effective remedies for the violations described in this Notice Letter. If Mountain View wishes to pursue such discussions in the absence of litigation, please contact me at your earliest convenience at (510) 735-9700 x110 or [email protected]. We hope to set up a meeting within the next fourteen (14) days so that we may come to an agreement prior to the end of the 60-day notice period.

Sincerely,

Nicole C. Sasaki Staff Attorney San Francisco Baykeeper

CC via Certified Mail Return Receipt:

Andrew Wheeler, Administrator Mike Stoker, Regional Administrator U.S. Environmental Protection Agency U.S. Environmental Protection Agency Office of the Administrator Region IX Mail Code: 1101A 75 Hawthorne Street 1200 Pennsylvania Avenue, N.W. San Francisco, California 94105 Washington, D.C. 20460

Eileen Sobeck, Executive Director Mike Montgomery, Executive Officer State Water Resources Control Board Regional Water Quality Control Board 1001 I Street Region 2, San Francisco Bay Sacramento, California 95814 1515 Clay Street, Suite 1400 Oakland, California 94612

Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 15 of 25

Exhibit A: Bacteria Monitoring Results

Table 1 contains bacteria concentration results from nine (9) sampling events at four (4) locations: Stevens Creek 4 (“SC-4”), Stevens Creek 5 (“SC-5”), Stevens Creek 7 (“SC-7”), and Stevens Creek 10 (“SC-10”). Refer to Figures 1 and 2 for sampling locations during Water Year (WY) 2018 and 2019, respectively.

With the exception of SC-10, each of these sites are co-located at MS4 discharge points that receive runoff from catchment areas located either entirely or in part within Mountain View. SC- 10 represents a reference station located downstream of Stevens Creek Reservoir, at a point upstream of municipal stormwater discharges.

Samples were taken at end of pipe from a MS4 discharge point (denoted as “Outfall” or “OF”), and upstream (“Upstream” or “US”) and downstream (“Downstream” or “DS”) of the associated MS4 discharge point. Samples collected in WY 2018 were analyzed for Escherichia coli (E. coli), Enterococci, total coliform, and fecal coliform. Samples collected in WY 2019 were analyzed for E. coli and Enterococci. Most samples exceed water quality objectives for bacteria in Table 3-1 of the Basin Plan, EPA bacteriological criteria for water contact recreation in Table 3-2 of the Basin Plan, and applicable water quality objectives in the Bacteria Provisions. With the exception of SC-3, all samples represent freshwater.

Table 1. Bacteria Monitoring Results

Sampling Sampling Result Sampling Location Parameter Conditions Date (MPN/100 mL) (Wet/Dry)1 Stevens Creek 10 Receiving 2/22/2019 E. Coli 10 Dry Water (SC-10-RW) Stevens Creek 10 Receiving 2/22/2019 Enterococci 20 Dry Water (SC-10-RW) Stevens Creek 7 Downstream 2/22/2019 E. Coli 3130 Dry (SC-7-DS) Stevens Creek 7 Downstream 2/22/2019 Enterococci 220 Dry (SC-7-DS) Stevens Creek 4 Downstream 2/22/2019 E. Coli 315 Dry (SC-4-DS) Stevens Creek 4 Downstream 2/22/2019 Enterococci 20 Dry (SC-4-DS) Stevens Creek 10 Receiving 2/13/2019 E. Coli 20 Wet Water (SC-10-RW) Stevens Creek 10 Receiving 2/13/2019 Enterococci 41 Wet Water (SC-10-RW)

1 “Dry weather” is defined as preceded by 48-hours without precipitation, based on rainfall records. Additional dates occurred where rainfall was minor and MS4 discharges were not observed.

1 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 16 of 25

Sampling Sampling Result Sampling Location Parameter Conditions Date (MPN/100 mL) (Wet/Dry)1 Stevens Creek 7 Upstream (SC- 2/13/2019 E. Coli 455 Wet 7-US) Stevens Creek 7 Upstream (SC- 2/13/2019 Enterococci 580 Wet 7-US) Stevens Creek 7 Outfall (SC-7- 2/13/2019 E. Coli 2481 Wet OF) Stevens Creek 7 Outfall (SC-7- 2/13/2019 Enterococci 4600 Wet OF) Stevens Creek 7 Downstream 2/13/2019 E. Coli 2098 Wet (SC-7-DS) Stevens Creek 7 Downstream 2/13/2019 Enterococci 2000 Wet (SC-7-DS) Stevens Creek 4 Upstream (SC- 2/13/2019 E. Coli 988 Wet 4-US) Stevens Creek 4 Upstream (SC- 2/13/2019 Enterococci 2400 Wet 4-US) Stevens Creek 4 Outfall (SC-4- 2/13/2019 E. Coli 2333 Wet OF) Stevens Creek 4 Outfall (SC-4- 2/13/2019 Enterococci 5200 Wet OF) Stevens Creek 4 Downstream 2/13/2019 E. Coli 2064 Wet (SC-4-DS) Stevens Creek 4 Downstream 2/13/2019 Enterococci 4600 Wet (SC-4-DS) Stevens Creek 10 Receiving 2/4/2019 E. Coli 74 Wet Water (SC-10-RW) Stevens Creek 10 Receiving 2/4/2019 Enterococci 62 Wet Water (SC-10-RW) Stevens Creek 7 Upstream (SC- 2/4/2019 E. Coli 495 Wet 7-US) Stevens Creek 7 Upstream (SC- 2/4/2019 Enterococci 610 Wet 7-US) Stevens Creek 7 Outfall (SC-7- 2/4/2019 E. Coli 2489 Wet OF) Stevens Creek 7 Outfall (SC-7- 2/4/2019 Enterococci 3700 Wet OF) Stevens Creek 7 Downstream 2/4/2019 E. Coli 2187 Wet (SC-7-DS) Stevens Creek 7 Downstream 2/4/2019 Enterococci 1700 Wet (SC-7-DS)

2 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 17 of 25

Sampling Sampling Result Sampling Location Parameter Conditions Date (MPN/100 mL) (Wet/Dry)1 Stevens Creek 4 Downstream 2/4/2019 E. Coli 1198 Wet (SC-4-DS) Stevens Creek 4 Downstream 2/4/2019 Enterococci 1500 Wet (SC-4-DS) Stevens Creek 4 Outfall (SC-4- 2/4/2019 E. Coli 2481 Wet OF) Stevens Creek 4 Outfall (SC-4- 2/4/2019 Enterococci 3300 Wet OF) Stevens Creek 4 Upstream (SC- 2/4/2019 E. Coli 441 Wet 4-US) Stevens Creek 4 Upstream (SC- 2/4/2019 Enterococci 840 Wet 4-US) Stevens Creek 10 Receiving 2/1/2019 E. Coli ND Wet Water (SC-10-RW) Stevens Creek 10 Receiving 2/1/2019 Enterococci 10 Wet Water (SC-10-RW) Stevens Creek 7 Downstream 2/1/2019 E. Coli 332 Wet (SC-7-DS) Stevens Creek 7 Downstream 2/1/2019 Enterococci 160 Wet (SC-7-DS) Stevens Creek 4 Downstream 2/1/2019 E. Coli 1019 Wet (SC-4-DS) Stevens Creek 4 Downstream 2/1/2019 Enterococci 250 Wet (SC-4-DS) Stevens Creek 10 Receiving 1/23/2019 E. Coli 41 Wet Water (SC-10-RW) Stevens Creek 10 Receiving 1/23/2019 Enterococci ND Wet Water (SC-10-RW) Stevens Creek 4 Downstream 1/23/2019 E. Coli 85 Wet (SC-4-DS) Stevens Creek 4 Downstream 1/23/2019 Enterococci ND Wet (SC-4-DS) Stevens Creek 10 Receiving 1/17/2019 E. Coli 63 Wet Water (SC-10-RW) Stevens Creek 10 Receiving 1/17/2019 Enterococci 640 Wet Water (SC-10-RW) Stevens Creek 7 Upstream (SC- 1/17/2019 E. Coli 4352 Wet 7-US) Stevens Creek 7 Upstream (SC- 1/17/2019 Enterococci 11000 Wet 7-US)

3 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 18 of 25

Sampling Sampling Result Sampling Location Parameter Conditions Date (MPN/100 mL) (Wet/Dry)1 Stevens Creek 7 Outfall (SC-7- 1/17/2019 E. Coli 3255 Wet OF) Stevens Creek 7 Outfall (SC-7- 1/17/2019 Enterococci 8200 Wet OF) Stevens Creek 7 Downstream 1/17/2019 E. Coli 3873 Wet (SC-7-DS) Stevens Creek 7 Downstream 1/17/2019 Enterococci 6900 Wet (SC-7-DS) Stevens Creek 4 Downstream 1/17/2019 E. Coli 2014 Wet (SC-4-DS) Stevens Creek 4 Downstream 1/17/2019 Enterococci 4600 Wet (SC-4-DS) Stevens Creek 4 Outfall (SC-4- 1/17/2019 E. Coli 1860 Wet OF) Stevens Creek 4 Outfall (SC-4- 1/17/2019 Enterococci 5200 Wet OF) Stevens Creek 4 Upstream (SC- 1/17/2019 E. Coli 3654 Wet 4-US) Stevens Creek 4 Upstream (SC- 1/17/2019 Enterococci 2800 Wet 4-US) Stevens Creek 10 Instream 3/22/2018 E. Coli 63 Wet Reference (SC-10) Stevens Creek 10 Instream 3/22/2018 Enterococci 145 Wet Reference (SC-10) Stevens Creek 10 Instream 3/22/2018 Fecal Coliforms 33 Wet Reference (SC-10) Stevens Creek 10 Instream 3/22/2018 Total Coliforms >1600 Wet Reference (SC-10) Stevens Creek 4 Upstream (SC- 3/22/2018 E. Coli >24196 Wet 4-US) Stevens Creek 4 Upstream (SC- 3/22/2018 Enterococci >24196 Wet 4-US) Stevens Creek 4 Upstream (SC- 3/22/2018 Fecal Coliforms 540 Wet 4-US) Stevens Creek 4 Upstream (SC- 3/22/2018 Total Coliforms >1600 Wet 4-US) Stevens Creek 4 Outfall (SC-4- 3/22/2018 E. Coli 5475 Wet OF) Stevens Creek 4 Outfall (SC-4- 3/22/2018 Enterococci 4611 Wet OF)

4 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 19 of 25

Sampling Sampling Result Sampling Location Parameter Conditions Date (MPN/100 mL) (Wet/Dry)1 Stevens Creek 4 Outfall (SC-4- 3/22/2018 Fecal Coliforms 1600 Wet OF) Stevens Creek 4 Outfall (SC-4- 3/22/2018 Total Coliforms >1600 Wet OF) Stevens Creek 4 Downstream 3/22/2018 Enterococci 9804 Wet (SC-4-DS) Stevens Creek 4 Downstream 3/22/2018 Enterococci 9804 Wet (SC-4-DS) Stevens Creek 4 Downstream 3/22/2018 Fecal Coliforms 920 Wet (SC-4-DS) Stevens Creek 4 Downstream 3/22/2018 Total Coliforms >1600 Wet (SC-4-DS) Stevens Creek 10 Instream 3/1/2018 E. Coli 98.7 Wet Reference (SC-10) Stevens Creek 10 Instream 3/1/2018 Enterococci 547.5 Wet Reference (SC-10) Stevens Creek 10 Instream 3/1/2018 Fecal Coliforms 49 Wet Reference (SC-10) Stevens Creek 10 Instream 3/1/2018 Total Coliforms 540 Wet Reference (SC-10) Stevens Creek 7 Outfall (SC-7- 11/16/2017 E. Coli 4352 Wet OF) Stevens Creek 7 Outfall (SC-7- 11/16/2017 Enterococci 8164 Wet OF) Stevens Creek 7 Outfall (SC-7- 11/16/2017 Fecal Coliforms 5400 Wet OF) Stevens Creek 7 Outfall (SC-7- 11/16/2017 Total Coliforms >16000 Wet OF) Stevens Creek 7 Downstream 11/16/2017 E. Coli 6867 Wet (SC-7-DS) Stevens Creek 7 Downstream 11/16/2017 Enterococci 11199 Wet (SC-7-DS) Stevens Creek 7 Downstream 11/16/2017 Fecal Coliforms 5400 Wet (SC-7-DS) Stevens Creek 7 Downstream 11/16/2017 Total Coliforms >16000 Wet (SC-7-DS) Stevens Creek 5 Downstream 11/16/2017 E. Coli 12033 Wet (SC-5-DS) Stevens Creek 5 Downstream 11/16/2017 Enterococci 10462 Wet (SC-5-DS)

5 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 20 of 25

Sampling Sampling Result Sampling Location Parameter Conditions Date (MPN/100 mL) (Wet/Dry)1 Stevens Creek 5 Downstream 11/16/2017 Fecal Coliforms >16000 Wet (SC-5-DS) Stevens Creek 5 Downstream 11/16/2017 Total Coliforms >16000 Wet (SC-5-DS) Stevens Creek 5 Outfall (SC-5- 11/16/2017 E. Coli 9804 Wet OF) Stevens Creek 5 Outfall (SC-5- 11/16/2017 Enterococci 19863 Wet OF) Stevens Creek 5 Outfall (SC-5- 11/16/2017 Fecal Coliforms 5400 Wet OF) Stevens Creek 5 Outfall (SC-5- 11/16/2017 Total Coliforms >16000 Wet OF) Stevens Creek 4 Downstream 11/16/2017 E. Coli 15531 Wet (SC-4-DS) Stevens Creek 4 Downstream 11/16/2017 Enterococci 12997 Wet (SC-4-DS) Stevens Creek 4 Downstream 11/16/2017 Fecal Coliforms >16000 Wet (SC-4-DS) Stevens Creek 4 Downstream 11/16/2017 Total Coliforms >16000 Wet (SC-4-DS) Stevens Creek 4 Outfall (SC-4- 11/16/2017 E. Coli 9208 Wet OF) Stevens Creek 4 Outfall (SC-4- 11/16/2017 Enterococci 15531 Wet OF) Stevens Creek 4 Outfall (SC-4- 11/16/2017 Fecal Coliforms 16000 Wet OF) Stevens Creek 4 Outfall (SC-4- 11/16/2017 Total Coliforms >16000 Wet OF) 2/22/2019 Field Blank (FB-1) E. Coli ND Dry 2/22/2019 Field Blank (FB-1) Enterococci ND Dry 2/13/2019 Field Blank (FB-1) Enterococci ND Wet 2/13/2019 Field Blank (FB-1) E. Coli ND Wet 2/1/2019 Field Blank (FB-1) E. Coli ND Wet 2/1/2019 Field Blank (FB-1) Enterococci ND Wet 1/17/2019 Field Blank (FB2A) Enterococci ND Wet 1/17/2019 Field Blank (FB2B) E. Coli ND Wet

6 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 21 of 25

Table 2 contains detection and quantification results of the fecal associated Human gene biomarker by real-time quantitative Polymerase Chain Reaction (qPCR) DNA analytical technology, based on analyses conducted by Source Molecular, Miami, FL. Results are presented from three (3) sampling events at four (4) locations: Stevens Creek 4 (“SC-4”), Stevens Creek 5 (“SC-5”), Stevens Creek 7 (“SC-7”), and Stevens Creek 10 (“SC-10”).

Samples were taken at end of pipe from a municipal storm drain, and upstream and downstream in the receiving water. Most samples detect human fecal biomarkers. SC-10 is a reference site upstream of municipal discharges.

Table 2. Human Fecal Biomarker Results

Marker DNA Sampling Sampling Location Parameter Quantified Analytical Date (copies/100 ml) Results Stevens Creek 10 Instream Human Bacteroidetes 3/22/2018 Non-Detect Not Detected Reference (SC-10) ID: Dorei Stevens Creek 4 Downstream Human Bacteroidetes 3/22/2018 6.69 E+02 Detected (SC-4-DS) ID: Dorei Stevens Creek 4 Outfall (SC-4- Human Bacteroidetes 3/22/2018 2.98 E+02 Detected OF) ID: Dorei Stevens Creek 4 Upstream (SC- Human Bacteroidetes Detected Not 3/22/2018 Detected 4-US) ID: Dorei Quantified Stevens Creek 10 Instream Human Bacteroidetes 3/1/2018 Non-Detect Not Detected Reference (SC-10) ID: Dorei Stevens Creek 4 Downstream Human Bacteroidetes 11/16/2017 2.47 E+03 Detected (SC-4-DS) ID: Dorei Stevens Creek 4 Outfall (SC-4- Human Bacteroidetes 11/16/2017 3.40 E+03 Detected OF) ID: Dorei Stevens Creek 4 Upstream (SC- Human Bacteroidetes 11/16/2017 3.66 E+03 Detected 4-US) ID: Dorei Stevens Creek 5 Downstream Human Bacteroidetes 11/16/2017 2.70 E+03 Detected (SC-5-DS) ID: Dorei Stevens Creek 5 Outfall (SC-5- Human Bacteroidetes 11/16/2017 2.50 E+03 Detected OF) ID: Dorei Stevens Creek 5 Upstream (SC- Human Bacteroidetes 11/16/2017 1.64 E+03 Detected 5-US) ID: Dorei Stevens Creek 7 Downstream Human Bacteroidetes 11/16/2017 4.11 E+03 Detected (SC-7-DS) ID: Dorei Stevens Creek 7 Outfall (SC-7- Human Bacteroidetes 11/16/2017 4.80 E+03 Detected OF) ID: Dorei Stevens Creek 7 Upstream (SC- Human Bacteroidetes 11/16/2017 1.06 E+03 Detected 7-US) ID: Dorei

7 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 22 of 25

Figure 1. WY 2018 sampling locations

8 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 23 of 25

Figure 2. WY 2019 sampling locations

9 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 24 of 25

Figures 3 and 4 depict the six (6) week rolling geometric mean (“GM”) and statistical threshold value (“STV”) of samples taken during WY 2019, compared with bacteria water quality objectives (“WQOs”) from Part 3 of the Water Quality Control Plan for Inland Surface Waters, Enclosed Bays, and Estuaries of California.

These results represent receiving water samples located downstream of associated MS4 discharge points or in receiving waters not associated with MS4 locations (SVC-3 and SC-10). SC-7 and SC-4 are located at MS4 discharge points in Mountain View. SC-4 is the only sample included below that drains a catchment area located entirely in Mountain View. SC-10 is a reference site upstream of municipal discharges. Refer to Figure 2 for sampling locations in WY 2019.

Figure 3. Summary Statistics of Results for E. Coli

10 Case 5:20-cv-00826 Document 1-1 Filed 02/04/20 Page 25 of 25

Figure 4. Summary Statistics of Results for Enterococci

11 JS-CAND 44 (Rev. 07/19) Case 5:20-cv-00826 Document 1-2 Filed 02/04/20 Page 1 of 3 CIVIL COVER SHEET The JS-CAND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.) I. (a) PLAINTIFFS DEFENDANTS

(b) County of Residence of First Listed Plaintiff County of Residence of First Listed Defendant (EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY) NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF 1 U.S. Government Plaintiff 3 Federal Question Citizen of This State 1 1 Incorporated or Principal Place 4 4 (U.S. Government Not a Party) of Business In This State Citizen of Another State 2 2 Incorporated and Principal Place 5 5 2 U.S. Government Defendant 4 Diversity (Indicate Citizenship of Parties in Item III) of Business In Another State Citizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country

IV. NATURE OF SUIT (Place an “X” in One Box Only) CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure of 422 Appeal 28 USC § 158 375 False Claims Act Property 21 USC § 881 120 Marine 310 Airplane 365 Personal Injury – Product 423 Withdrawal 28 USC 376 Qui Tam (31 USC 690 Other § 157 § 3729(a)) 130 Miller Act 315 Airplane Product Liability Liability 400 State Reapportionment 140 Negotiable Instrument 320 Assault, Libel & Slander 367 Health Care/ LABOR PROPERTY RIGHTS Pharmaceutical Personal 410 Antitrust 150 Recovery of 330 Federal Employers’ 710 Fair Labor Standards Act 820 Copyrights Overpayment Of Injury Product Liability 430 Banks and Banking Liability 720 Labor/Management 830 Patent Veteran’s Benefits 368 Asbestos Personal Injury 450 Commerce 340 Marine Relations 835 Patent─Abbreviated New 151 Medicare Act Product Liability 345 Marine Product Liability 740 Railway Labor Act Drug Application 460 Deportation 152 Recovery of Defaulted PERSONAL PROPERTY 350 Motor Vehicle 751 Family and Medical 840 Trademark 470 Racketeer Influenced & Student Loans (Excludes 370 Other Fraud Leave Act Corrupt Organizations Veterans) 355 Motor Vehicle Product SOCIAL SECURITY Liability 371 Truth in Lending 790 Other Labor Litigation 480 Consumer Credit 153 Recovery of 380 Other Personal Property 861 HIA (1395ff) 485 Telephone Consumer Overpayment 360 Other Personal Injury 791 Employee Retirement Damage Income Security Act 862 Black Lung (923) Protection Act of Veteran’s Benefits 362 Personal Injury -Medical Malpractice 385 Property Damage Product 863 DIWC/DIWW (405(g)) 490 Cable/Sat TV 160 Stockholders’ Suits IMMIGRATION Liability 864 SSID Title XVI 850 Securities/Commodities/ 190 Other Contract 462 Naturalization CIVIL RIGHTS PRISONER PETITIONS 865 RSI (405(g)) Exchange Application 195 Contract Product Liability 890 Other Statutory Actions 440 Other Civil Rights HABEAS CORPUS 465 Other Immigration FEDERAL TAX SUITS 196 Franchise 891 Agricultural Acts 441 Voting 463 Alien Detainee Actions 870 Taxes (U.S. Plaintiff or REAL PROPERTY 893 Environmental Matters 442 Employment 510 Motions to Vacate Defendant) 895 Freedom of Information 210 Land Condemnation 443 Housing/ Sentence 871 IRS–Third Party 26 USC Act 220 Foreclosure Accommodations 530 General § 7609 896 Arbitration 230 Rent Lease & Ejectment 445 Amer. w/Disabilities– 535 Death Penalty Employment 899 Administrative Procedure 240 Torts to Land OTHER 446 Amer. w/Disabilities–Other Act/Review or Appeal of 245 Tort Product Liability 540 Mandamus & Other Agency Decision 448 Education 290 All Other Real Property 550 Civil Rights 950 Constitutionality of State 555 Prison Condition Statutes 560 Civil Detainee– Conditions of Confinement

V. ORIGIN (Place an “X” in One Box Only) 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict Proceeding State Court Appellate Court Reopened Another District (specify) Litigation–Transfer Litigation–Direct File

VI. CAUSE OF Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

ACTION Brief description of cause:

CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint: VII. REQUESTED IN COMPLAINT: UNDER RULE 23, Fed. R. Civ. P. JURY DEMAND: Yes No

VIII. RELATED CASE(S), JUDGE DOCKET NUMBER IF ANY (See instructions):

IX. DIVISIONAL ASSIGNMENT (Civil Local Rule 3-2) (Place an “X” in One Box Only) SAN FRANCISCO/OAKLAND SAN JOSE EUREKA-MCKINLEYVILLE

DATE SIGNATURE OF ATTORNEY OF RECORD JS-CAND 44 (rev. 07/19) Case 5:20-cv-00826 Document 1-2 Filed 02/04/20 Page 2 of 3

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS-CAND 44

Authority For Civil Cover Sheet. The JS-CAND 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of Court for each civil complaint filed. The attorney filing a case should complete the form as follows: I. a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then the official, giving both name and title. b) County of Residence. For each civil case filed, except U.S. plaintiff cases, enter the name of the county where the first listed plaintiff resides at the time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land condemnation cases, the county of residence of the “defendant” is the location of the tract of land involved.) c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting in this section “(see attachment).” II. Jurisdiction. The basis of jurisdiction is set forth under Federal Rule of Civil Procedure 8(a), which requires that jurisdictions be shown in pleadings. Place an “X” in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below. (1) United States plaintiff. Jurisdiction based on 28 USC §§ 1345 and 1348. Suits by agencies and officers of the United States are included here. (2) United States defendant. When the plaintiff is suing the United States, its officers or agencies, place an “X” in this box. (3) Federal question. This refers to suits under 28 USC § 1331, where jurisdiction arises under the Constitution of the United States, an amendment to the Constitution, an act of Congress or a treaty of the United States. In cases where the U.S. is a party, the U.S. plaintiff or defendant code takes precedence, and box 1 or 2 should be marked. (4) Diversity of citizenship. This refers to suits under 28 USC § 1332, where parties are citizens of different states. When Box 4 is checked, the citizenship of the different parties must be checked. (See Section III below; NOTE: federal question actions take precedence over diversity cases.) III. Residence (citizenship) of Principal Parties. This section of the JS-CAND 44 is to be completed if diversity of citizenship was indicated above. Mark this section for each principal party. IV. Nature of Suit. Place an “X” in the appropriate box. If the nature of suit cannot be determined, be sure the cause of action, in Section VI below, is sufficient to enable the deputy clerk or the statistical clerk(s) in the Administrative Office to determine the nature of suit. If the cause fits more than one nature of suit, select the most definitive. V. Origin. Place an “X” in one of the six boxes. (1) Original Proceedings. Cases originating in the United States district courts. (2) Removed from State Court. Proceedings initiated in state courts may be removed to the district courts under Title 28 USC § 1441. When the petition for removal is granted, check this box. (3) Remanded from Appellate Court. Check this box for cases remanded to the district court for further action. Use the date of remand as the filing date. (4) Reinstated or Reopened. Check this box for cases reinstated or reopened in the district court. Use the reopening date as the filing date. (5) Transferred from Another District. For cases transferred under Title 28 USC § 1404(a). Do not use this for within district transfers or multidistrict litigation transfers. (6) Multidistrict Litigation Transfer. Check this box when a multidistrict case is transferred into the district under authority of Title 28 USC § 1407. When this box is checked, do not check (5) above. (8) Multidistrict Litigation Direct File. Check this box when a multidistrict litigation case is filed in the same district as the Master MDL docket. Please note that there is no Origin Code 7. Origin Code 7 was used for historical records and is no longer relevant due to changes in statute. VI. Cause of Action. Report the civil statute directly related to the cause of action and give a brief description of the cause. Do not cite jurisdictional statutes unless diversity. Example: U.S. Civil Statute: 47 USC § 553. Brief Description: Unauthorized reception of cable service. VII. Requested in Complaint. Class Action. Place an “X” in this box if you are filing a class action under Federal Rule of Civil Procedure 23. Demand. In this space enter the actual dollar amount being demanded or indicate other demand, such as a preliminary injunction. Jury Demand. Check the appropriate box to indicate whether or not a jury is being demanded. VIII. Related Cases. This section of the JS-CAND 44 is used to identify related pending cases, if any. If there are related pending cases, insert the docket numbers and the corresponding judge names for such cases. IX. Divisional Assignment. If the Nature of Suit is under Property Rights or Prisoner Petitions or the matter is a Securities Class Action, leave this section blank. For all other cases, identify the divisional venue according to Civil Local Rule 3-2: “the county in which a substantial part of the events or omissions which give rise to the claim occurred or in which a substantial part of the property that is the subject of the action is situated.” Date and Attorney Signature. Date and sign the civil cover sheet.

Case 5:20-cv-00826 Document 1-2 Filed 02/04/20 Page 3 of 3

Attachment to Civil Cover Sheet

Plaintiff’s Attorneys

Jason R. Flanders Erica A. Maharg Aqua Terra Aeris (ATA) Law Group 490 43rd Street, Suite 108 Oakland, California 94609 Telephone: (510) 473-8793

Daniel Cooper Cooper & Lewand-Martin, Inc. 1004-B O’Reilly Avenue San Francisco, California 94129 Telephone: (415) 360-2962

Christopher Len Nicole C. Sasaki San Francisco Baykeeper 1736 Franklin Street, Suite 800 Oakland, California 94612 Telephone: (510) 735-9700

Defendants’ Attorneys

Megan J. Reedy, Senior Deputy City Attorney Office of the City Attorney 500 Castro Street Mountain View, California 94041 Telephone: (650) 903-6496