Malibu Septics: Round Two

Malibu Lagoon

Water quality in Malibu Creek and Lagoon, and Surfrider Beach is too important to gamble with. The MOU must be strengthened and Malibu must to be held more accountable for implementation.

Tonight, the Malibu City Council will vote to approve a Memorandum of Understanding (MOU) between the city and the state to move the civic center’s wastewater management into the 21st century. Malibu fought to become a city when L.A. County tried to jam a massive sewage treatment plant in pristine Corral Canyon down their throat. For the last two decades, the tradition of fighting for septics over sewers has been a city obsession.

The MOU vote tonight will greatly weaken the Regional Water Board’s order prohibiting land disposal of sewage (leach fields) by 2015 in commercial areas and 2019 in the civic center’s residential areas. Since the State Water Board upheld the Regional Board’s order last December, Malibu and the Regional Board have been meeting regularly to weaken it.

Malibu opposed the original order, but they didn’t sue over it because the State Board was willing to modify its terms. One of the order’s big issues was the inclusion of residential areas like Malibu Knolls and Sweetwater Mesa, which likely had no water quality impacts on the highly polluted Malibu Lagoon and Surfrider Beach. If those were the only changes, then a simple MOU modifying the order would have been universally supported. But this is Malibu, so nothing is ever simple.

Politics and the threat of litigation have dominated the negotiations for the last seven months. I know because I was somewhat involved in the negotiations. I participated in three of the sessions, but inexplicably, I was not allowed to see MOU draft language. Try negotiating a complex agreement without ever seeing language. It just doesn’t work.

I didn’t see the draft MOU until the night before it was released to the public. Heal the Bay’s comments on the final draft were dismissed as “good comments that will be considered during the public comment period.” So much for environmental community involvement. To make matters worse, the draft MOU wasn’t even reviewed or approved by the State Water Board’s technical staff: a clear requirement from last year’s State Board hearing.

If the MOU was a fight, the winner by TKO in the first round is Malibu. Here is what the city gained from the negotiations to date.

The septic system ban area was drastically reduced. In addition to Malibu Knolls and Sweetwater Mesa, most of Winter Canyon, the Hughes Research Facility, Malibu Bluffs Park and the Malibu Road stretch of beach from the Colony to Marie Canyon no longer have to be sewered by 2019. Instead, they are all part of a new Phase 3 that will likely never be sewered. Somehow, Malibu talked the Regional Board negotiators into setting a threshold based on the completion of short term studies demonstrating that septic waste from those areas are causing or contributing to water quality problems in Malibu Creek and Lagoon. If the studies demonstrate that these areas are causing water quality problems in the creek and lagoon, then they will be required to hook up to a sewer in 2025. While none of these areas (with the possible exception of Malibu Knolls and part of Winter Canyon) are in the Malibu Creek watershed,the short term length of the studies ignores the fact that groundwater fate and transport of nitrogen pollution to Malibu Creek and Lagoon can take decades, not a few years. So the studies are highly unlikely to demonstrate anything.

The only apparent explanations for throwing out science, shifting the burden of proof on hooking up to the sewer back to the Regional Board and giving over a third of the Civic Center a potential free pass on wastewater treatment are: fear of litigation from the affected residents, lack of support from the local residents (thereby making passage of an assessment district to fund the wastewater treatment system unlikely), or the Regional Board negotiators not agreeing with the scope and scale of the original order. No matter what the reason is, the decision to severely cut back the order ignores the fact that the local beaches are listed as impaired for Fecal Indicator Bacteria and, as a result, are part of the Santa Monica Bay beach bacteria TMDL (Total Maximum Daily Load). Further, a number of facilities in Winter Canyon have violated their Waste Discharge Requirements for their onsite wastewater treatment systems, thereby polluting the local groundwater.

As a “participant” in the negotiations, I can tell you that the biggest issue was the likelihood of the wastewater assessment district getting approved. If the assessment district vote fails, then there will be no money to build the sewage treatment plant. Even with the MOU, it will be a tall order to get the residents from the Colony, Serra Retreat, and the large condo complex in Winter Canyon to approve an assessment district to hook up to a new sewer. If the Phase 2 assessment fails, then the regulatory burden falls predominantly on the Regional Board.

Citing legal constraints during negotiations, Malibu refused to agree to draft an ordinance codifying requirements to hook up to the new sewer system by the required dates. The compromise is that Malibu has agreed to help with compliance assurance and to modify onsite system operating permits in the event one or both of the assessment districts fail. This commitment doesn’t go far enough because Malibu is not held liable for non-compliance with the MOU. Instead, the Regional Board will have to go after each property owner to ensure they are no longer disposing of wastewater in the ground. The Board does not have the resources to manage the existing onsite system regulatory burden, let alone hundreds of potential new properties.

So what did the Regional Board get for weakening its order?  Malibu won’t sue the state.  Also, a wastewater treatment facility (although what level of treatment is unclear because inexplicably that requirement never made it in the MOU) will be built for the Phase 1 commercial facilities. In essence, the Regional Board and Malibu negotiators are going with the “Field of Dreams” approach: “If you build it, they will come.”

I fully expect Malibu’s City Council to approve this weakened MOU on first reading tonight. Then, the final decision is scheduled to be made by the Regional Board on July 14th. Given that water quality in Malibu Creek and Lagoon, and Surfrider Beach is too important to gamble with, the MOU should be strengthened and Malibu should be held more accountable for implementation.

Considering the history of sewage battles in Malibu, don’t expect the Regional Board’s decision to be the end of the fight.

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