DE PONAT
AGENDA REPORT City of Poway
stel 1203
CITY COUNCIL
DATE: March 3, 2026
TO: Honorable Mayor and Members of the City Council
FROM: Carrie Gallagher, City Clerk in
(858) 668-4535 or [email protected]
SUBJECT: Closed Session - Anticipated Litigation Based on Written Threat Summary
The Brown Act allows the City Council to discuss matters in closed session if, "based on existing facts and circumstances, there is a significant exposure to litigation against the [City]." (Gov. Code S 54956.9(d)(2).) If the basis for the potential exposure to litigation is a statement threating litigation the Brown Act requires the threatening statement to be disclosed as part of the City Council agenda (Id., subdiv. (e)(5).)
For the closed session item, such a statement exists, and has been attached hereto as Attachment A.
Attachments:
A. February 12, 2026 Letter/Notice of Intent to Sue from S. Wayne Rosenbaum on behalf of K&M Investments LP and Garett McCormick
Reviewed/Approved By: Reviewed By: Approved By:
Alm htt
Alan Fenstermacher Chris Hazeltine
Assistant City Manager City Attorney City Manager
•
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ATTORNEYS AT LAW
225 Broadway, Suite 1900
San Diego, CA 92101 ENVIRONMENTAL
619.231.5858
619.231.5853 (fax) LAW GROUP LLP
Varco & Rosenbaum
www.envirolawyer.com
SUZANNE R. VARCO February 12, 2026
[email protected]
S.WAYNE ROSENBAUM Via U.S. Certified Mail
[email protected]
City Clerk
City of Poway
13325 Civic Center Drive
Poway, CA 92064
Re: Notice of Violations and Intent to File Suit under the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq. (Clean Water Act) Dear Madame Clerk:
Varco & Rosenbaum Environmental Law Group LLP, along with REDEN | RIDDELL, represents K&M Investments LP, the owner of property located at APN 323- 070-1600, Poway 92064 (the "Property"). This Notice is provided on behalf of K&M Investments LP and Garett McCormick (collectively, "K&M") in regard to violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1251 et seq., that K&M alleges are occurring through the ownership and/or operation of portions of the municipal separate storm water sewer system ("MS4") in the City of Poway. Separately, K&M alleges that the discharges of sediment and trash to the Property constitute a continuing nuisance and a continuing trespass.
K&M hereby places the City of Poway ("City"), as owner and operator of portions of the municipal separate storm water system and Co-Permittee and Discharger under California Regional Water Quality Control Board, San Diego Region Order No. R-9-2013- 0001, as amended by Order Nos. R9-2015-0001 and R9-2015-0100, National Pollutant Discharge Elimination System ("NDES") Permit No. CAS0109266 ("MS4 Permit"), on notice that following the expiration of sixty (60) days from the date of this Notice, K&M will be entitled under WA § 505, 33 U.S.C.§ 1365(a), to bring suit in the United States District Court against the City for continuing violations of effluent standards or limitations pursuant to CWA § 301(a), 33 U.S.C. § 1311(a), and the Regional Water Quality Control Board, San Diego Region Water Quality Control Plan for the San Diego Basin ("Basin Plan"), as the result of violation(s) of the MS4 Permit.
The CWA regulates the discharge of pollutants into navigable waters. The statute is structured to prohibit all discharges of pollutants unless excepted by certain enumerated statutory provisions. One such exception authorizes a discharger, who has been issued or enrolled under a permit pursuant to CWA § 402, 33 U.S.C. § 1342, to discharge designated pollutants at certain levels subject to specified conditions. The effluent discharge standards or limitations specified in a NDES permit define the scope of the authorized exception to 2 of 14 ATTACHMENT A March 3, 2026, Item #8
City Clerk, City of Poway
February 12, 2026
the CWA § 301(a), 33 U.S.C. § 1311(a) prohibition such that violation of a permit limit places a discharger in violation of the CWA. K&M alleges the City is in violation of the CWA by violating the terms of the MS4 Permit.
The CWA provides that the authority to administer the NDES permitting system in any given state or region can be delegated by the Environmental Protection Agency ("EPA) to a state or to a regional regulatory agency provided that the applicable state or regional regulatory scheme under which a local agency operates satisfies certain criteria (see 33 U.S.C. § 1342(b)). In California, the EPA has granted such authorization to the State Water Resources Control Board ("SWRB") and several subsidiary regional water quality control boards to issue NDES permits. The entity responsible for issuing NPDES permits and otherwise regulating the City's operation of its storm water infrastructure in the region at issue in this Notice is the Regional Water Quality Control Board for the San Diego Region ("RWQCB").
While delegating to Regional Boards to administer the NDES permitting scheme, the CWA provides that enforcement of the statute's permitting requirements relating to effluent standards or limitations imposed by the Regional Boards can be performed by private parties acting under the citizen suit provision of the statute (see CWA § 505, 33 U.S.C. § 1365). K&M is exercising this citizen enforcement to ensure compliance by the City with the CWA.
NOTICE REQUIREMENTS
The CWA requires that any Notice regarding an alleged violation of an effluent standard or limitation, or of an order with respect thereto, shall include sufficient information to permit the recipient to identify the following:
1. The Specified Standard, Limitation, or Order Alleged to Have Been Violated K&M contends the order being violated is NPDES Permit No. CAS0109266, the MS4 Permit. K&M has identified specific violations of the MS4 Permit including the following: 1) illegal discharges of sediment from the City's Municipal Separate Storm Sewer System ("MS4") (§ II.A.1.); 2) MS4 sediment discharges causing or contributing to exceedances of receiving water limitations for surface or ground waters, including the Total Maximum Daily Load (TMDL"') for sediment in the Los Peñasquitos Lagoon (§ II.A.2.a.); 3) failure to implement control measures to prevent illegal sediment discharges to Los Peñasquitos Lagoon (§ II.A.4.); and 4) illegal discharges of trash from the MS4 in violation of RWQCB Order No. R9-2017-0077, which prohibits the discharge of trash to surface waters of the State or the deposition of trash where it may be discharged into surface waters of the State
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February 12, 2026
2. The Activity Alleged to Constitute a Violation
K&M contends that from 2016 to present, the City has violated the Act as described in this Notice. K&M contends these violations are continuing or have a likelihood of occurring in the future. The violations are the result of the City's failure to implement control measures to prevent sediment and trash from discharging from its concrete storm water channels to the Property, as well as the City's concrete channel cleaning activities adjacent to the Property which have also contributed to the discharge of sediment and trash to the waterway on the Property and ultimately the Los Peñasquitos Lagoon and Pacific Ocean. As explained below, the City actions (and inaction) constitute violations of the MS4 Permit, RWQCB Order No. R9-2017-0077, and the Clean Water Act.
1. Section II.A.1. Illegal Discharges of Sediment.
The City's MS4 collects, channels, and transports storm water and effluent at and to the Property. A concrete storm water channel north of the Property runs beneath Garden Road and perpendicular to the Property, conveying storm water flows from off-site through the Property and into Los Peñasquitos Creek. Los Peñasquitos Creek drains into the Los Peñasquitos Lagoon, which terminates in the Pacific Ocean.
Storm water and non-storm water flows containing trash and sediment from the concrete storm channel to the Property enter the Property uncontrolled due to the City's failure to implement control measures pursuant to the MS4 Permit during storm events and regular channel cleaning activities. As a result, sediment and trash have discharged from the MS4 to waters of the United States as evidenced by the large amount of trash and soil that has collected in the waterway on the Property at the terminus of the concrete storm channel. Enclosed are photographs depicting, on multiple occasions, sediment and trash discharging from the MS4 channel to the Property. Additional photographic and video evidence is available upon request.
K&M contends that the discharges of trash and sediment to and through the Property have caused or contributed to a condition of pollution, contamination, or nuisance by impacting the Los Peñasquitos Lagoon and the Pacific Ocean in violation of the MS4 Permit and the CWA.
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City Clerk, City of Poway
February 12, 2026
2. Section II.A.2.a. Discharges Causing or Contributing to Exceedances of Water Quality Standards.
Los Peñasquitos Lagoon is one of the few remaining coastal lagoons in southern California and provides valuable estuarine habitat as well as other beneficial uses. As a result of excessive sedimentation caused by the surrounding urbanization, the Lagoon does not meet the water quality objective for sediment and is on the CWA section 303(d) list.
RWQCB Resolution No. R9-2012-0033, which incorporated the Los Peñasquitos Lagoon Sediment TMDL into the San Diego Basin Plan and the MS4 Permit, names the City of Poway as a responsible party and sets a numeric sediment target for the Lagoon of 12,360 tons of sediment per wet period (211 days). As a responsible party, the City is required to reduce its sediment load to the Lagoon or demonstrate that its discharges are not causing exceedances of the numeric allocation.
By allowing excessive amounts of sediment to discharge from its MS4 concrete storm channel to the surface waters on the Property, where it is conveyed to the Los Peñasquitos Creek and Lagoon, the City has contributed to the exceedance of the Los Peñasquitos Lagoon sediment TMDL in violation of the MS4 Permit and the CWA.
3. Section II.A.4. Failure to Implement Control Measures.
Each Permittee is required to implement control measures and other actions necessary to achieve compliance with the MS4 Permit and Basin Plan's water quality standards, including the Los Peñasquitos Lagoon sediment TMDL. Such control measures include runoff capture and sediment containment, measures which the City has failed to implement to control the discharge of sediment from the concrete storm channel adjacent to the Property. The City's failure to do so is evidenced by the large amounts of trash and sediment buildup that have occurred within the waterway on the Property immediately adjacent to the channel's discharge point where no other source of such effluent exists. Due to the hydrological connection between the waterway on the Property and Los Peñasquitos Creek, the City's failure to implement necessary control measures contributes to the exceedances of water quality standards set forth in the Basin Plan and incorporated in the MS4 Permit.
4. Illegal Discharges of Trash in Violation of RWCB Order No. R9-2017-0077.
RWQCB Order No. R9-2017-0077 ("2017 Order") is an order directing owners and operators of MS4s in the San Diego Region to submit reports pertaining to the control of trash in discharges from their MS4s to ocean waters, inland surface waters, enclosed bays, and estuaries. Its purpose is to incorporate the "Trash Amendments," made in 2015 to various State Water Quality Control Plans, into the San Diego MS4 Permit. As such, the 2017 Order is effectively a TMDL for trash for the Pacific Ocean (and the other referenced California water bodies). As a permittee of the MS4 Permit, the City of Poway is also named as a responsible entity in the 2017 Order.
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City Clerk, City of Poway
February 12, 2026
The 2017 Order prohibits the discharge of trash to surface waters of the State or the deposition of trash where it may be discharged into surface waters of the State. (2017 Order, Finding 6.) However, as shown in photographs depicting the City's concrete storm channel which discharges to the Property, significant amounts of trash have collected in the channel and discharged to the Property. The deposition of trash into the channel and the discharge of that trash to the Property and the Los Peñasquitos Creek, where it is ultimately conveyed to the Pacific Ocean, constitutes a violation of the 2017 Order.
3. The Person or Persons Responsible for the Alleged Violation The entity responsible for the alleged violations identified in this Notice is the City of Poway, as owner and operator of portions of the MS4, as well as those City employees and City contractors responsible for compliance with the CWA and with any applicable state and federal regulations and permits.
4. The Location of the Alleged Violation
The City's violations of the MS4 Permit and the CWA have occurred at the Property, immediately adjacent to Garden Road near the intersection with Floral Avenue, and at the terminus of the concrete storm channel which runs beneath Garden Road between Floral Avenue and Garden Road Elementary School.
5. Reasonable Range of Dates During Which the Alleged Activity Occurred The range of dates covered by this Notice is January 2022 through the present. This Notice also includes all violations of the CWA by the City which occur during and after this Notice period up to and including the time of trial.
6. The Full Name, Address, and Telephone Number of the Person Giving Notice The persons giving notice are K&M Investments LP, a limited partnership located in California, and Garett McCormick. Their mailing address is 260 Landis Ave., Chula Vista, CA 91910, and their telephone number is (858) 602-9108. K&M should be contacted through its attorneys, Varco & Rosenbaum Environmental Law Group ("ELG"). K&M has retained ELG and REDEN | RIDDELL with respect to the issues raised in this Notice, and all communications related to this Notice should be directed to counsel identified below:
S. Wayne Rosenbaum
Varco & Rosenbaum Environmental Law Group LLP
225 Broadway, Suite 1900
San Diego, CA 92101
Tel. (619) 231-5858
Email: [email protected]
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City Clerk, City of Poway
February 12, 2026
Justin G. Reden
REDEN | RIDDELL
16885 Via Del Campo Court, Suite 320
San Diego, CA 92127
Tel. (619) 758-3869
Email: [email protected]
STATE LAW CLAIMS
In addition to the violations of the CWA stated above, the City's collection, concentration, channelization, and discharge of water, sediment, and trash from its MS4 facilities onto and through the Property constitutes a continuing trespass and a continuing private nuisance under California law. The repeated deposition of sediment and debris is a physical invasion by tangible matter that interferes with K&M's possessory rights and substantially and unreasonably interferes with the use and enjoyment of the Property. The City's conduct further constitutes negligence and negligence per se to the extent it violates duties imposed by the MS4 Permit, RWQCB orders, and applicable water quality standards. To the extent the discharges arise from the design, construction, operation, or maintenance of a public storm water system constituting a public improvement, the resulting property damage also gives rise to a claim for inverse condemnation. The condition is continuing and abatable by reasonable engineering and operational measures at reasonable expense, including implementation of sediment and trash control measures required under the MS4 Permit. Because the discharges result from artificial collection and channelization of flows, the doctrine permitting the natural flow of surface water does not apply and does not extend to the discharge of accumulated sediment and trash.
To the extent required by the California Government Claims Act (Gov. Code §§ 810 et seq.), this Notice is also intended to constitute a claim for damages arising from the continuing trespass, nuisance, negligence, and inverse condemnation described herein, including but not limited to restoration costs, remediation expenses, loss of use, diminution in value during the period of interference, and all other damages recoverable by law. K&M reserves all rights to amend, supplement, or clarify this claim as additional facts are discovered and expressly preserves all continuing and future damages resulting from the ongoing condition. K&M therefore provides notice that it intends to seek all available legal and equitable remedies, including damages, declaratory relief, and injunctive relief to abate the continuing trespass and nuisance. 7 of 14 March 3, 2026, Item #8
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CONCLUSION
The CWA specifically provides a 60-day notice period to promote resolution of disputes. K&M therefore encourages the City to contact counsel for K&M shortly atte eceipt of this Notice to initiate a discussion regarding the allegations detailed herein anc avenues to resolution of K&M's claims under the CWA. In the absence of productive discussions to resolve this dispute, K&M will have cause to file a citizen's suit pursuant to CWA § 505(a) when the 60-day notice period ends.
Yours very truly,
VARCO & ROSENBAUM
ENVIRONMENTAL LAW GROUP LLP
5. Wayne Punchan
S. Wayne Rosenbaum
cc:
Alan Fenstermacher (via e-mail only)
City Attorney
Rutan & Tucker, LLP
[email protected]
Eric Oppenheimer
Executive Director
State Water Resources Control Board
P.O. Box 100
Sacramento, CA 95812-0100
Lee Zeldin
Administrator
U.S. Environmental Protection Agency
Office of the Administrator, 1101A
1200 Pennsylvania Ave NW WJC
Washington, D.C. 20460
Mike Martucci
Acting Administrator
U.S. Environmental Protection Agency, Region 9
75 Hawthorne Street
San Francisco, CA 94105
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City Clerk, City of Poway
February 12, 2026
Pam Bondi
Attorney General
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, D.C. 20530-0001
David Gibson
Executive Officer
San Diego Regional Water Quality Control Board
2375 Northside Drive, Suite 100
San Diego, CA 29108-2700
REDEN | RIDDELL
[email protected]
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