Baykeeper Litigation: Update March 2026

On Feb. 4, 2020, Baykeeper sued the City of Sunnyvale. The lawsuit relates to bacteria in municipal stormwater that runs off yards, parking lots, and roads and enters City creeks during rain events.* After five years, the case finally went to trial in July 2025. As of February, 2026, we are still waiting for a decision from the court.

Members of the community have been raising questions about the City's continued defense of the Baykeeper litigation. They want to know why the City is fighting Baykeeper or why we don't settle the lawsuit. The fact is that we tried to settle this litigation for years. But we were never able to come to a reasonable middle ground with Baykeeper.

The following points are intended to help explain the City's position.

• Sunnyvale has already adopted and implemented robust stormwater management programs. These comply with the City's state-issued permit requirements which are updated every five years.
• Baykeeper wants the City to conduct extensive studies, additional testing and infrastructure improvements. This is despite having no evidence that these steps would reduce bacteria in stormwater to levels that would continuously comply with bacteria standards. At trial, Baykeeper's expert witness estimated these proposed steps would cost the City more than half a billion dollars over the next 20 years. This would double the sewer rates for Sunnyvale's residents and businesses.
• Baykeeper presented no evidence at trial that bacteria in Sunnyvale's stormwater is harming the environment or anyone's health. Sunnyvale's creeks are not used for swimming or other full-body water contact recreation and are not intended for such uses.
• The cities of Mountain View and Sunnyvale have conducted years of "creek walks." Our staff have never seen any swimmers in the creeks. The creeks have too little water for swimming in dry weather. Or they would be dangerous to swim in during high flows from wet weather.
• At trial, Sunnyvale asked the judge to disregard Baykeeper's sampling data because one of its laboratories destroyed the raw data and relevant records, which violates laws against spoilation (destruction) of evidence in litigation. That was the primary data relied upon by Baykeeper in its case.
• Baykeeper presented no evidence that bacteria in its samples of Sunnyvale's stormwater in 2017 and 2019 came from human sources rather than from birds, pets, or wildlife. E. Coli is a generic bacteria found in the gut of all animals. It has also been found in nature where there is no animal source.
• The strictest bacteria standards apply to recreational waters where people swim. All urban creeks have bacteria from human sources. The creek water already has bacteria above the standards when it enters Sunnyvale from upstream.
• The City agrees that bacteria in stormwater can present a serious public health concern in some instances. This is why the City supported the inclusion of special requirements for investigation and potential control of bacterial sources in our most recent stormwater permit. Only a few other Bay Area cities also have similar, enforceable requirements.
• • Learn more about permits and the state and regional agencies involved with stormwater protection
• The City has actively tested its stormwater and conducted investigations into potential human sources of bacteria. The City is also taking actions to reduce bacteria. This includes making significant investments in improving and repairing sewer and storm drain infrastructure and educating businesses and residents about ways to reduce sources of contamination.
• • Read Sunnyvale's 2024-25 Stormwater Management Report to the San Francisco Bay Regional Water Quality Control Board about our permit activities.
• Baykeeper waited two years to notify the City after first testing Sunnyvale and Mountain View's stormwater in 2017 and allegedly finding bacteria. Working together at that point would have focused resources on the problem instead of on litigation.
• Baykeeper was not interested in working proactively with the City or giving us a chance to take action to address the problem. Instead, Baykeeper chose to file costly lawsuits.
• The City has had to pay hundreds of thousands of dollars to Baykeeper's lawyers as an interim fee award. This represents money that cannot be spent on Sunnyvale's stormwater programs or other City services.
• In other settlements (such as Baykeeper's settlement with San Jose in 2016), Baykeeper gained the right to monitor the city's stormwater activities for an extended period. Cities have also been required to make annual payments to Baykeeper as well as third party non-profit organizations.
• The City does not believe that we need Baykeeper to regulate us. Our stormwater is already stringently regulated by the Regional Water Quality Control Board and other state and federal agencies.
• • Baykeeper is a private non-profit organization that is unelected and unaccountable to voters.
  • Baykeeper actively avoids negative public scrutiny: for example, in Baykeeper's 2016 settlement with San Jose, the City of San Jose agreed not to "negatively cite" Baykeeper as the reason for fee and tax measures that were needed to pay for infrastructure upgrades required by the settlement of Baykeeper's lawsuit. Public materials and messaging about the revenue measures had to be approved in advance by Baykeeper.
• The City has a fiscal obligation to the Sunnyvale taxpayers and the community not to pay excessive or unwarranted settlements when we are sued, especially when the City has valid legal arguments, such as relevant U.S. Supreme Court decisions, that support our defenses.
• Sunnyvale has a long-standing track record of being good stewards of our public funds and the environment. We plan to continue to be a leader on this front.
• Sunnyvale will also continue to follow all laws and regulations in place to protect our waterways and public health.

Learn more about water pollution prevention

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