Editorial: San Jose mayor twists truth into scare tactics

Scare tactics are not a good look for San Jose Mayor Matt Mahan, who promised government transparency during his mayoral campaign. This behavior is even more disingenuous when he uses it to further his agenda by claiming this news organization spread misinformation about his efforts to eliminate an environmental problem.

So let’s set the record straight about the potential fines and penalties the mayor claims the city will incur if it doesn’t clean up the high level of pollutants caused by homeless encampments.

At issue here is the true cost of the fines that the San Francisco Bay Regional Water Quality Control Board might assess if the city fails to clean up the waterways by June 2025. Mahan has accused San José Spotlight of “downplaying the legal and financial risks.” He said they could be more than $60,000 per day per pollutant. That number has since grown to $66,712 per the city’s budget director.

When San José Spotlight reporter Brandon Pho looked into this $60,000 claim, he went straight to the water board for clarification.

An agency spokesperson was adamant this was false, and said in writing there is no basis for the $60,000 claim. The maximum penalty from this specific agency is $10,000 per day — and the violation would have to be egregious for that amount to be assessed. The spokesperson added that a monetary penalty per day is not even mandatory.

The mayor then pointed to the Environment Protection Agency and Clean Water Act to defend the $66,712 claim.

But an official from the agency cast doubt on the likelihood of a $66,712 per day penalty per pollutant being imposed in the case of homeless encampments. The EPA spokesperson said “the agency has not assessed any penalties to cities associated with discharges from encampments.”

So while that fine amount is cited in a government document somewhere, the mayor’s basis for such fines from either agency has no precedent. It has never happened and it’s unlikely that it will.

Our reporting is based on information provided by the EPA and state water board. It’s not “dangerous misinformation” per the mayor, it’s rooted in facts and confirmation from officials.

However, San José Spotlight’s reporting affects the mayor’s argument for diverting revenue from Measure E, a fund voters approved in 2020 for affordable housing development with a 25% carve out for homeless services and housing. The mayor wants to use the funds to address homelessness along the waterways — an estimated $27 million effort.

The mayor fueled this argument in a recent newsletter, where he cited a $100 million lawsuit the city settled with Oakland-based conservation group Baykeeper in 2016. He’s using his platform and position of power to scare the community by saying this could happen again if San Jose doesn’t address its environmental problems. But he’s not telling the whole story.

Baykeeper argued San Jose violated the Clean Water Act by not cleaning up waste and sewage in Coyote Creek and the Guadalupe River. Corrective measure included repairing sewer pipes near waterways and storm drains, removing pounds of trash, identifying if storm drain debris came from homeless encampments and monitoring biowaste, among others. These are the same waterways the state water board is ordering the city to clean up.

But here’s the kicker: In the settlement, the city agreed to spend $100 million over 10 years to clean up the trash and sewage flowing into San Francisco Bay, yet eight year later the water board is denying the city’s stormwater permit due to encampments along the same waterways.

Mahan should take note of this and be concerned about whether the city is meeting the obligation of the 2016 lawsuit settlement.

Instead of using his bully pulpit to call out reporters who had the facts right, it would be better for the mayor to look within his own administration and determine how the city got it wrong.

Moryt Milo is an editor at San José Spotlight. Contact Moryt at [email protected] or follow her at @morytmilo on X, formerly known as Twitter. Catch up on her monthly editorials here.