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[whitespace] The Straight Poop

Saratoga--Environmental attorney Claudia Polsky predicted this week that the city's motion to dismiss a case brought by two local environmental groups will fail. The greens charge that Saratoga violated the Clean Water Act by allowing unacceptable levels of sewage to flow into the creek. The city maintains that the creek is only as polluted as other urban creeks.

The city cited a recent Supreme Court ruling in filing its motion for dismissal in the case, brought by the Friends of the Santa Clara County Creeks and BayKeeper. The city claims the case should be declared moot because its 1990 permit is no longer in effect--pointing out that a new permit, which superseded the 1990 permit, was issued to the city in 1995.

But Polsky, the Earthjustice Legal Defense Fund attorney representing the two environmental groups, contends the city's motion doesn't hold water because the Clean Water Act violations were ongoing at the time her clients filed their lawsuit in January 1995. The city's current permit was issued a few weeks later.

Polsky said what the city is asking the court is unreasonable.

"Essentially, the city is asking for a very radical expansion of a Supreme Court ruling," she said. "It's one that we don't think is valid under the Clean Water Act, and one that the Supreme Court would never uphold."

Polsky filed an opposition memo in the case Sept. 1, and the city has until Sept. 21 to respond. A hearing to consider the city's motion to dismiss is scheduled for Oct. 5.

The moves are the latest in a case spanning almost four years. Friends and BayKeeper first filed their suit against the city Jan. 25, 1995. The groups claim that discharges into the Saratoga Creek contain unacceptably high levels of fecal coliform bacteria, a bacteria found in the digestive tracts of mammals that can indicate the presence of more harmful bacteria or sewage pollution. In their suit, the groups contend that the city should be held responsible for cleaning up the Saratoga Creek and for finding and eliminating the source of the pollution.
Sarah Lombardo

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