Saratoga News

Creek debate produces new signs

Council questions water officials about hypothetical child

By Sarah Lombardo

Saratoga City Council members on both sides of the Saratoga Creek issue seemed very concerned about the welfare of Santa Clara Valley Water District official Carol Pressley's imaginary child. More than once, Pressley, present at the Nov. 5 council meeting to discuss the Urban Creek Assessment Program, was asked by councilmembers if she would let her hypothetical 3-year-old play in a creek that had been shown to have the same coliform levels as Saratoga Creek.

According to testing performed by UCAP at 10 different locations along Saratoga Creek, total and fecal coliform in the creek reached levels as high as 160,000 MPN per 100 ml. in the testing over the past two years. The presence of coliform bacteria is often used, according to Pressley, to indicate the possibility that illness-causing pathogens exist in bodies of water. Coliform bacteria can be found in the intestinal tracts of mammals. Pressley also reported that the average test result at each of the 10 locations over a two-year period failed to meet water-quality objectives established by the Environmental Protection Agency and the San Francisco Regional Water Quality Control Plan.

That information led to questions about whether the levels indicated a danger to people wading in the creek. But the questions were left mostly unanswered; Pressley told the council they were questions that needed to be directed to a public health official and not her. But she did point out that when these standards were established, there was some controversy surrounding them, and how they should apply to urban creeks.

The questions were a few of dozens lobbed at Pressley and Beau Goldie of the Santa Clara Valley Water District during the presentation, which was one part of a four-part discussion on matters relating to the creek.

"If you had a 3-year-old child, would you take your child out to Crestbrook [Drive] knowing what you do now?" Councilman Stan Bogosian asked. Pressley did not answer the question, but instead talked about recommendations for safety in streamside habitats as prepared by the Santa Clara County Department of Environmental Health. The recommendations included such tips as not drinking the water, avoiding exposure of fresh cuts to the water, washing hands before eating and wearing hard-soled shoes with good support while wading in the water.

Vice Mayor Don Wolfe brought the conversation back to Pressley's hypothetical child and whether she would let the child swim in a creek that had the same readings as Saratoga Creek.

"I really don't feel comfortable answering that question," she said.

The discussion as a whole was part of a follow-up to questions and concerns raised about a study commissioned by the city to look into the levels of bacteria in Saratoga Creek.

The report, written by San Jose State University associate professor Rhea Williamson, focused on data already collected on the levels of total and fecal coliform in the creek. When Williamson presented the report--for which the city paid more than $10,000--in February, factual and typographical errors were pointed out by residents Jeff Schwartz and Don Whetstone, who are also plaintiffs in the litigation against the city over the condition of the creek. Through correspondence with the city, Williamson has acknowledged the errors, but said they do not affect the conclusions made in her report--specifically, that the levels of coliform bacteria found in Saratoga Creek were no higher than levels found in other urban creeks.

Whetstone and Williamson both expressed dismay about the discussion afterward. Whetstone said he believed that "obviously, the staff is never going to respond to these 15 items" that he and Schwartz had given the city earlier this year when asked to point out specific problems in Williamson's report.

Goldie and Pressley finished their report, which covered the background of the creation of UCAP, areas of study, the progress of a three-year bacteriological study of Saratoga Creek and other ongoing projects. But they did not finish without first encountering more lawsuit-related questions.

"If you found results like these in your town, would you sue your city?" Wolfe asked Pressley. Goldie told Wolfe he did not think that was a fair question, to which Wolfe responded, "I will agree that you cannot answer that question because it is an unfair situation."

The comment was a direct reference to the ongoing case against the city by San Francisco BayKeeper and the Friends of Santa Clara County Creeks. Filed in 1995, the lawsuit contends that discharges from the storm drains off Saratoga Creek contain dangerously high levels of fecal coliform bacteria for which the city is responsible. The case was dismissed last March when a San Jose federal magistrate determined that the city was not responsible for discharges from the storm drains because Caltrans owned the drains. The ruling has been appealed and is currently in the 9th Circuit Court of Appeals. A decision is expected within the next six months.

But Williamson's report was not the only issue tackled last week. Also at issue was whether the city acted properly when retaining her to perform an objective study of the creek data while at the same time requesting that she sign a declaration refuting certain evidence against the city in the lawsuit.

Williamson was hired by the city in January 1996 to perform the study. About a month later, according to City Attorney Mike Riback, she was asked to make a declaration in the litigation. Riback stressed that she was not paid for her testimony and that she also was not asked to testify as an expert witness.

In a memo to the council read at the Nov. 5 meeting, Riback stated: "Notwithstanding the litigation, the city made a conscious decision from the beginning to retain Dr. Williamson to perform an independent, neutral investigation of coliform levels to provide full disclosure on the issue to the City Council and the public, regardless of the results of her findings and conclusions, and not to retain her as the city's 'expert' witness for the purposes of litigation. ... If that had been the city's intention, Dr. Williamson would have been retained through a separate contract with this law firm, rather than by publicly disclosed contract with the city."

In her declaration, dated March 19, 1996, Williamson stated: "My work for the city of Saratoga is still in progress, and I have not yet reached a conclusion about the sources of fecal coliform in Saratoga Creek. However, I can testify that it is normal for urban creeks to show levels of coliform and fecal coliform comparable to [and even greater than] those reported in the Saratoga Creek."

Shaw pointed out that the dates when Williamson was hired to do the study and when she was retained for a declaration were "awfully close."

Discussion about the creek continued at the council meeting for almost four hours. At the end, only one thing was decided: Staff was directed to work on changing the wording on signs near entries to the creek.

The move was in response to a suggestion by a resident who sent a letter to the council in August about the signs. The resident recommended the signs read, "Do not wade or play in the creek. Bacterial pollution in excess of water-quality objectives has been detected in the creek."

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