The California Department of Fish & Wildlife filed a lawsuit against the city of San Jose earlier this year over the amount of waste and water pollution flowing out of the homeless camps, following a two year investigation over the cities handling of the pollution. Under state law, the city is required to prevent wastewater discharge into natural waterways, and is held responsible if it fails to live up to that duty. State law also empowers both the California EPA and the California DFW to file suit against governments that fail to live up to their duties. Because the DFW is responsible for monitoring ESA compliance in the state, they are suing San Jose for failing to regulate wastewater and the ESA related wildlife damage that it is causing.
The problem isn't just people pissing and crapping in the water either. People are manufacturing drugs in the camp and dumping leftover chemicals into the stream, they are bathing in the stream which releases soaps and other chemicals, they are using it to wash their clothes and dishes, releasing detergents, etc. The stream has gone from a relatively clean protected waterway that supported a fairly large wildlife population to a toxic ditch that is unsafe for humans or wildlife in only a few years. The endangered steelhead population in this creek has been almost completely eliminated over the past decade because of the pollution.
Legally, San Jose was stuck between a rock and a hard place. On one hand, the DFW was suing them and telling them that they were required to put in running water, toilets, fencing, and everything else needed to keep waste out of the waterway. On the other hand, California law actually prevents governments from building most structures in unleveed flood zones nowadays. In order to build facilities down there, the state would have to sign off on it, and the California EPA will NOT permit the construction of permanent facilities along a creek that is home to an ESA protected species. This isn't a problem unique to San Jose...when a bathroom burned down along the Tuolumne River in Modesto last year, the state wouldn't permit them to rebuild it because it was less than 100 feet from the water and there was no levee between the water and the bathroom site. The fact that there had been a bathroom there since the 1970's was irrelevant. The fact that it was the only bathroom for miles along the river was irrelevant. The fact that homeless people along the river were its primary users was also ignored. The state only cared about the fact that the river is home to several endangered and protected species, and that toilet facilities in the uncontrolled flood zone are a pollution source.
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