United States of America et al v. East Bay Municipal Utility District

Filing 29

ORDER re 28 GRANTING STIPULATION Holding in Abeyance All Litigation Deadlines and Vacating September 15, 2009 Case Management Conference. Signed by Judge CLAUDIA WILKEN on 8/17/09. (scc, COURT STAFF) (Filed on 8/17/2009)

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JOHN C. CRUDEN Acting Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice LORI JONAS (Bar # 158268) Senior Attorney Environmental Enforcement Section P.O. Box 7611 Washington, D.C. 20044 [phone] (telephone); [phone] (facsimile) JOSEPH P. RUSSONIELLO (Bar # 44332) United States Attorney Northern District of California CHARLES O'CONNOR (Bar # 56320) Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 [phone] (telephone); (415) 436-76748 (facsimile) Attorneys for Plaintiff United States IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION UNITED STATES OF AMERICA, and THE PEOPLE OF THE STATE OF CALIFORNIA ex rel. CALIFORNIA STATE WATER RESOURCES CONTROL BOARD, and CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD, SAN FRANCISCO BAY REGION, ) CASE NO. C 09-0186 CW ) ) ) ) ) ) ) STIPULATION AND ORDER ) HOLDING IN ABEYANCE ALL ) LITIGATION DEADLINES AND Plaintiffs, ) VACATING SEPTEMBER 15, 2009 v. ) CASE MANAGEMENT ) CONFERENCE EAST BAY MUNICIPAL UTILITY ) DISTRICT ) ) Defendant. ) ___________________________________ ) On July 22, 2009, the Court entered the Stipulated Order for Preliminary Relief in this case. The Stipulated Order provides for a number of measures that East Bay Municipal Utility District (EBMUD) must take to begin to curtail discharges from its wet weather facilities. These
Stipulation & Order Holding in Abeyance All Litigation Deadlines and Vacating September 15, 2009 Case Management Conference C 09-0186 CW

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include data gathering, analysis and other work. The Stipulated Order is not, however, a final remedy in that the measures specified will not alone prevent future discharges. Rather, as explained in detail in the Motion to Enter, the government plaintiffs will review the work done under this Order and will either submit a further settlement document to the Court or utilize other enforcement options. Since the flows at issue in this matter originate in the collection systems of satellite communities, those entities will need to be involved in the ultimate remedy, even though they are not presently before the Court. The activities, discussed in great detail in the Motion to Enter, will take approximately three years to complete, although there are interim deliverables that begin to become due within the first year and there is an annual report due August 31 of each year. As long as EBMUD is diligent in its efforts under the Order, there is no reason to proceed with the litigation while these efforts are being undertaken. The plaintiffs are hopeful that a future settlement of the entire case will be ultimately be achieved without the need for discovery, motion practice or trial. Because of this unusual posture, we seek the Court's approval of this stipulation to hold in abeyance all litigation deadlines in the case and to vacate the currently scheduled case management conference set for September 15, 2009. We propose to file with the Court semi-annual status reports on the progress under the Order, with the first report due January 15, 2010. When the activities under this Order are drawing to a close, the parties will schedule a case management conference with the Court to decide how to proceed with the litigation. NOW THEREFORE, IT IS HEREBY STIPULATED by the United States;the State of California; the Intervenor Plaintiffs, San Francisco Baykeeper and Our Children's Earth Foundation; and the defendant East Bay Municipal Utility District, that: (1) all litigation deadlines in this case are held in abeyance pending further order of the Court; (2) the case management conference set for September 15, 2009 is vacated;

Stipulation & Order Holding in Abeyance All Litigation Deadlines and Vacating September 15, 2009 Case Management Conference C 09-0186 CW

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(3)

the parties will submit joint status reports to the Court semi-annually beginning on January 15, 2010; and

(4)

the parties will alert the Court when the activities under the Stipulated Order are complete and shall seek a case management conference at that time.

Respectfully submitted, JOHN C. CRUDEN Acting Assistant Attorney General Environment and Natural Resources Division U.S. Department of Justice

DATED:

8/5/09

/s/ Lori Jonas LORI JONAS Senior Attorney Environmental Enforcement Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7611 Washington, D.C. 20044 [phone] JOSEPH P. RUSSONIELLO United States Attorney Northern District of California CHARLES O'CONNOR Assistant United States Attorney 450 Golden Gate Avenue, 9th Floor San Francisco, CA 94102 [phone] Attorneys for the United States of America EDMUND G. BROWN, JR. Attorney General of the State of California

DATED:

8/5/09

/s/ John Davidson JOHN DAVIDSON Supervising Deputy Attorney General

Stipulation & Order Holding in Abeyance All Litigation Deadlines and Vacating September 15, 2009 Case Management Conference C 09-0186 CW

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455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102 [phone] Attorneys for the State of California /s/ Christopher A. Sproul CHRISTOPHER A. SPROUL Environmental Advocates 5135 Anza Street San Francisco, CA 94121 [phone] Attorney for San Francisco Baykeeper and Our Children's Earth Foundation

BARG COFFIN LEWIS &TRAPP, LLP

/s/ Brian S. Haughton BRIAN S. HAUGHTON 350 California Street, 22nd Floor San Francisco, CA 94104-1435 [phone] Attorneys for East Bay Municipal Utility District

ORDER The Stipulation agreed to herein IS SO ORDERED.

CLAUDIA WILKEN United States District Judge

Stipulation & Order Holding in Abeyance All Litigation Deadlines and Vacating September 15, 2009 Case Management Conference C 09-0186 CW

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