Knocked Out in Malibu!

The city of Malibu scored an absolute knockout Thursday in Round 3 of the battle for improved water quality at Surfrider, Malibu Lagoon, and nearby beaches. Watching Malibu City Attorney Christi Hogin close the done deal for weakened septic system regulations with the Los Angeles Regional Water Quality Control Board was like watching boxing champ Manny Pacquiao take on Woody Allen.  No contest. Hogin should be in line for a big raise for negotiating a deal for Malibu that will save ratepayer’s millions at the probable expense of water quality at beaches visited by millions of visitors each year.  And she did this when Malibu’s only leverage was its stated threat of litigation against the Regional Water Board for enforcing previously approved prohibitions. The board had already unanimously voted for regulations against new septic tanks and the phase out of existing ones in the civic center area in favor of a centralized waste water treatement and recycling facility.

The reward for Malibu’s threat to sue was a unanimous 6-0 Regional Board vote to approve a MOU that severely undercuts the previously Board approved Basin Plan amendment to prohibit land discharges of sewage in the Malibu civic center.

Despite a nearly five-hour hearing, and extensive testimony from Santa Monica Baykeeper, Surfrider Foundation, Malibu Surfing Assn., Heal the Bay and many others, the board only made trivial changes to the MOU.

The environmental and surfing community did not get greater accountability for the city of Malibu, a commitment for disinfection or sewering of homes on Malibu Road and properties near the Pier by 2012, a city commitment for recycled water storage, the elimination or reduction of Phase 3, or even sensible monitoring.

Instead, we heard a lot of rhetoric from the Regional Board attorney on how the board couldn’t order Malibu to do anything in the MOU.  Tough to negotiate with that attitude.  This was an MOU, not a discharge permit.  Of course, the Regional Board had unlimited clout with the existing, enforceable, onsite disposal prohibition in the civic center, but it refused to use that leverage to get Malibu officials to agree to doing anything more than what they already agreed to in the MOU.

Hogin’s tough, no-nonsense approach to representing Malibu’s interests clearly made the difference.  Among the highlights: In testifying about the serious nature of Malibu’s litigation threat and its new willingness to settle for a better deal she said, “Malibu is laying down their arms without unloading them” – a Palinesque approach to environmental regulation if there ever was one.  Hogin even said that Malibu’s signing of the MOU was an “act of faith.”  Maybe for Malibu.  For the Regional Board, it was more like a leap of faith … across the Grand Canyon.

The exchange that best exemplified the day was discussion among board members trying to get Malibu to agree to constructing storage as part of its water recycling infrastructure.  Despite Councilman Jefferson Wagner’s (Zuma Jay) support for storage as necessary water recycling infrastructure for irrigation and fire fighting, Hogin refused to commit Malibu to recycled water storage.

The best the board could get her to do was to commit to studying storage and storage infrastructure.  Hogin’s tactics over the course of the afternoon were simple, yet 100% effective.  Whenever the board asked her to agree to an MOU change, she refused and stated that City Council hadn’t empowered her to make significant changes — just clarification.  And she did this with two councilmembers at the hearing.  That is pretty tough.

Hogin even pulled off the unimaginable: She convinced the board that beginning beach monitoring near Malibu Road was too expensive to begin before 2014, a time period after the vote on the first assessment district.  Santa Monica High school does weekly beach monitoring at three locations for a few grand a year. Maybe the city can hire some Malibu High or Pepperdine students to run the two-year monitoring study.

Next steps include Malibu’s city council approving the MOU on second reading.  Also, enviros and surfers could decide to petition the State Water Board to overturn the MOU because it is inconsistent (and weaker) with the Basin Plan Amendment in numerous ways.

Some homeowners may petition the State Board because they don’t want to ever hook up to a sewer.  That contingent was well represented by Serra Retreat, Malibu Road (why them – I don’t know – they are off the hook for responsibility under the MOU), and Winter Canyon condo residents.  Odds are, someone will petition the State Board to overturn the MOU.  And on the good news side, I fully expect Malibu to proceed with the water recycling facility for the commercial properties in the civic center.  After that, all bets are off.

Perhaps the worst part of Thursday’s hearing was the message it sent to polluters everywhere.  If you don’t like a tough regulation, it pays to sue or threaten to sue the Regional Board.  You will get a reduced regulatory burden in return.  Rewarding those who threaten or behave badly sends a horrible message.

In a region where plastic bag manufacturers sue over bag bans, the county sues over beach water quality regulations to protect public health, and CPR cities sue over everything, rewarding Malibu for nearly two decades of irresponsible wastewater management doesn’t seem quite fair.

I’m guessing that there are about 1.2 million ocean users at Surfrider Beach that agree with me right now. As Michael Blum, president of the Malibu Surfing Assn., said at the hearing: “After all of these years of polluted water, we’re all sick of getting sick.”

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