San Francisco Baykeeper v. Sunnyvale

Background

San Francisco Baykeeper sued the Cities of Sunnyvale and Mountain View under the Clean Water Act. In an earlier summary-judgment order, the court held that Baykeeper had established violations of Limitation B.2 of the Cities’ National Pollutant Discharge Elimination System permit on January 17, February 4, and February 13, 2019. The court also held that Stevens Creek and Calabazas Creek were “waters of the United States,” meaning waters covered by the Clean Water Act.

The bench trial later concluded, but the court had not yet issued its findings of fact and conclusions of law. The Cities obtained permission to seek reconsideration of the earlier summary-judgment rulings.

Legal standard

The court explained that it may reconsider an earlier order before final judgment, but reconsideration is an extraordinary remedy. A party relying on newly discovered evidence must show that the evidence could not have been discovered and presented earlier through reasonable diligence.

The Cities’ arguments

The Cities presented three categories of evidence:

Court’s analysis

The court rejected the argument about the Bacteria Provisions because February 4, 2019, was the date of approval by California’s Office of Administrative Law, not the date the provisions became effective under the governing federal requirements. The provisions did not become effective until the Environmental Protection Agency approved them. The court therefore found that the Cities’ argument rested on a faulty premise.

The court held that the missing raw data was not newly discovered evidence for reconsideration purposes. Although the Cities did not obtain that information until trial, they had received the challenged testing results by the time Baykeeper moved for partial summary judgment in August 2021. The court found that the Cities could have requested the raw data then, when the laboratory’s five-year retention policy likely would have made it available.

The court noted that testing reliability remained a live trial issue. It had allowed the Cities to argue that the missing data undermined the reliability of Baykeeper’s tests. The court stated that it would assess the reliability and interpretation of the tests anew in its trial findings and that, if the trial decision conflicted with the summary-judgment ruling, the Cities could seek relief at that time. But the court held that the issue did not justify reconsideration then.

As to the creek evidence, the court considered the Cities’ request even though it had not originally understood its authorization to include reconsideration of the covered-waters issue. The court held that the Cities had not presented qualifying new evidence. The 2019 flow and precipitation data had been publicly available and could have been accessed at the summary-judgment stage. The later data from 2022 and 2023 did not, in the Cities’ explanation, show how it differed from the 2019 data.

The court also clarified that whether a waterway is covered by the Clean Water Act is better understood as an element of a Clean Water Act claim, not a requirement that gives the court subject-matter jurisdiction. The court therefore did not relax the new-evidence requirement for that issue.

Disposition

The court denied the Cities’ motion for reconsideration. The order did not issue the court’s final findings of fact and conclusions of law after trial.