Water Boarded

The definition of torture? A bungled, two-day Regional Water Quality Control Board meeting that flouted the Clean Water Act.

The Los Angeles Regional Water Quality Control Board held a two-day marathon meeting at the end of last week. I’ve been attending board hearings for nearly a quarter century, well over 150 overall.  The Thursday hearing had to be the most screwed-up session I’ve ever attended, and I’m now convinced that this is the most anti-environmental board since the Gov. Deukmejian days. Heal the Bay had seven different items in front of the Regional Board over the session, which took place at the Ventura County government building and then Glendale City Hall.

 Among the important items on the packed agenda:  the Ventura County stormwater permit, the Hyperion Treatment Plant’s discharge permit, a waste discharge requirement for a new development along Malibu Creek in the Malibu civic center area and fecal bacteria Total Maximum Daily Load (TMDL) limits for the Santa Clara and Los Angeles rivers.

Unfortunately, logic and a responsibility to uphold the federal Clean Water Act took a holiday last week.

After the 32-hour marathon, exhaustion and anger overwhelmed me.  My faith in the state system’s ability to protect our right to clean water had been severely eroded.  The system isn’t entirely broken, but it is in need of major reform. 

The board has the singular responsibility to hold cities and other dischargers accountable to the requirements of the Clean Water Act and California’s Porter-Cologne Act.  When board members abandon those fundamental responsibilities for political or economic reasons, the system cannot function.  Last week, the Regional Board truly fell apart at the expense of public health and aquatic life.

The first item should have taken about 10 minutes.  It focused on a minor change in the region’s Basin Plan to change the water quality standard for freshwater to an E. coli standard instead of a fecal coliform standard for direct recreational water contact.  No one formally opposed the change.  Over an hour later, the decision still hadn’t been made. I knew that water quality was going to have a rough day. 

 The board inexplicably debated how they could provide greater regulatory relief to dischargers by creating a new E. coli standard for indirect recreational water contact.  The only problem is that no such standard exists and the board can’t set a new standard without extensive notice and comment requirements.  After all of this debate, the staff recommendation passed without significant change, thanks to the reality check from the staff lawyers.

The next item concerned the fecal bacteria TMDL limits for the Santa Clara River. Despite the fact that  numerous segments of the river have been impaired for high bacteria counts for years, several cities opposed stricter limits, including Santa Paula, Fillmore and Santa Clarita.  These municipalities began humming what would become the overriding theme of the two-day hearing: All cities are on the verge of bankruptcy and they can no longer afford any new environmental regulations.

No one questions that local governments are hurting financially, but that’s hardly an excuse to ignore the requirements of the Clean Water Act.  Public health and aquatic life shouldn’t suffer because cities have polluted water ways with impunity in the past.

With certain members practically tripping over themselves to provide regulatory relief, the board weakened the TMDL, arbitrarily adding three years to the already too long compliance deadlines.  The story of Santa Paula spending $80 million on a new water recycling plant with associated infrastructure especially swayed the board, except for the fact that any new recycling facility would meet the TMDL requirements easily without any additional cost. 

Next the board tackled the new La Paz development along the severely polluted Malibu Creek, right near the even more polluted Malibu Lagoon and the notorious Surfrider Beach.  At the end of 2009, the Regional Board voted for a prohibition of commercial wastewater subsurface disposal in the Malibu civic center area by 2015, with no new systems allowed in the interim.  The La Paz development marked the first proposal in front of the board since the prohibition. 

Would the board hang tough, follow the prohibition resolution, and deny the permit application as it did in February?  Would the members delay a decision until the State Water Board ruled on the city of Malibu’s appeal of the Regional Board’s prohibition?  Or would they cave like a house of cards and grant the discharge permits?  I’m pretty sure you guessed the right answer.

The Regional Board bought off on the Biosphere-type proposal by La Paz: no discharge of treated wastewater to the ground or surface water.  So what if a similar project had never been done in Southern California?  The developer would build an 800K gallon tank and recycle an average of 14,000 gallons per day!  That’s a lot of water.  My testimony on the development’s lack of an irrigation plan and the probable need to plant a banana plantation to evapo-transpire 14K gallons per day fell on deaf ears.

The project was approved and praised as the wave of the future.  Meanwhile, the Malibu prohibition was ignored, and the city lost one of its single largest potential funding sources for the proposed civic center water recycling facility. (Not that Malibu cared.  Officials didn’t even bother showing up to the hearing). 

La Paz will spend $5 million to $10 million on a new wastewater disposal system and will probably not discharge a significant amount of sewage to the city. Without this revenue, and a legally binding action to comply with the prohibition requirements, what are the odds that Malibu finishes a civic center water recycling facility by the 2015 deadline?  Hopefully better than the odds of Malibu or some local residences or businesses not litigating the prohibition. When will wastewater pollution stop being a way of life near Malibu Lagoon and Surfrider?

The main event – the mulligan permit in Ventura — didn’t start till the early evening and it didn’t finish till 10:45 p.m. After massive errors in the administrative record and copying problems (three pages had gone missing) in the 2009 Ventura County stormwater permit, the Building Industry Assn. petitioned the State Water Board to overturn it.

Rather than deciding to hear the permit or not, the State Board decided to punt the permit back to the Regional Board to “voluntarily” rehear the permit.  So the BIA got another shot at the permit and this time in front of a board that cares more about cost than water quality protection.

From the board’s perspective, a nine-month negotiated deal between Ventura County and the 11 cities in the county was helpful but surely not deserving of support.  A late amendment by staff to weaken the permit by allowing offsite mitigation of Low Impact Development requirements when difficult to implement on-site?  Not enough.  Add the ability for developers to use biofiltration offsite?  Still not enough for the BIA, so definitely not enough for the Regional Board.

The BIA effectively focused energy on its demand to add biofiltration on-site and got Board support.  The board even asked city managers from Simi Valley and Oxnard if they supported the negotiated deal.  The city managers expressed support for the deal, but they also said that the staff amendment and the BIA appraisal would make it a lot easier and cheaper for them to comply.  So much for a deal being a deal. 

You would have thought that the inspiration of holding the hearing in a building surrounded by the largest parking lot west of Dodger Stadium would have motivated the board to consider a strong Low Impact Development approach. But clearly its desire to please the BIA held more sway.

At the end of the circus performance, the board asked staff to craft onsite biofiltration language for the final permit.

 About 45 minutes later, staff came up with a convoluted proposal that put Faulkner’s “The Sound and the Fury” to shame: a biofiltration clause that epitomized a perpetual state of confusion.  Chairwoman Lutz, asked the cities, Ventura County, BIA, me and the NRDC’s Noah Garrison up to the podium to give our thoughts on the language.

Noah and I burst Lutz’s  hope of a Kumbaya moment by stating that we strongly opposed the new language based on the technical merits, on the fact it violated our deal with Ventura county cities, and finally because the change was hypocritical at best.  The BIA got a do-over on the permit based partially on its argument that the enviro-city deal wasn’t properly vetted to the public.  (The enviros, Ventura County cities and the state strongly disagreed with the BIA as the LID language was released to the public well before the 2009 hearing). Now, based solely on the testimony of the BIA and its supporters, a biofiltration clause was added to the permit during the hearing.  I guess the BIA only opposes last-second changes it doesn’t like.

The hourlong ride home to Santa Monica was not pleasant for me, our water quality director, Kirsten James, or staff engineer, Susie Santilena.  We all got home after midnight, dreading that we had to do it all over again Friday morning a la “Groundhog Day.”  Not so sweet dreams.

We regrouped for Friday’s critical consideration of the bacteria TMDL for the Los Angeles River.  I feared a travesty of a hearing in light of the controversy surrounding the TMDL, the loud opposition from the Coalition for Practical Regulation (CPR) cities and the high cost of compliance.

After all, the TMDL aims to clean up the entire 1,000-square mile Los Angeles River watershed to a point that the water would meet bathing water standards.  A Herculean task to say the least.

The Glendale City Council chambers were packed, mostly with opponents to the TMDL.  Supporters like the city of Los Angeles and Long Beach (with some changes) also made an appearance. (Although inexplicably, Los Angeles County didn’t even show up for the critical issue).  The opposition lowlight: the presentation by the CPR cities in which their hired squirt-gun, attorney Richard Montevideo, spent 20 minutes threatening the Regional Board with litigation. He has made a fortune suing the Regional Board on numerous critical TMDLs and stormwater permits, but his overly aggressive tactics seemed to backfire this time.

Heal the Bay opposed the TMDL too, but not for the economic reasons cited by the opposing cities.  The TMDL doesn’t require any significant action for four  years, had more loopholes than the federal tax code, and didn’t even require a comprehensive wet weather plan for a decade. 

Most important, the TMDL contained a 25-year compliance deadline for both wet weather and dry weather.  I played the drama card in my testimony by whipping out wallet photos of my three kids and emphasizing that Natalie, Jake and Zack wouldn’t be able to swim safely at Long Beach until they were 35, 39 and 42 respectively. All the other bacteria TMDLs approved to date had dry weather compliance periods of three to 10 years.

I also brought up that CPR did everything but hand the board a 60-day notice of intent to sue letter over the TMDL.  I emphasized that the bacteria TMDL represents much more than a Clean Water Act requirement.  It’s an opportunity to change the way we treat our land in urban L.A. 

Low Impact Development and green streets, alleys and parking lots comprise the only cost-effective solution to polluted runoff on a large scale. The days of paving over every last square inch of soil must come to an end and in its place needs to be a bioretention approach that reduces pollutants, reduces flood risk and augments local water supplies. A strong bacteria TMDL could serve as a catalyst for change and compel cities to pursue LID more aggressively. 

Perhaps moved by the impassioned pleas of the environmental community for a stronger TMDL and the support from L.A. and Long Beach, the board voted unanimously to support the TMDL despite the strong opposition from the CPR.

In light of the events of the previous day, the outcome could have been a lot worse.  But I couldn’t help but think that the unanimous vote demonstrated the fundamental weakness of the TMDL.  A quarter century for clean beaches in Long Beach during the summer is beyond outrageous. But with the current makeup of our local Regional Board, it’s the best we can hope for.  Not exactly a victory for water quality.  We’ll have to change our old slogan to “Leave something for your grandchildren to remember you by.”

The last item served as anticlimax: a hearing on the Hyperion Treatment Plant discharge permit.  The city of Los Angeles has done an excellent job in turning around Hyperion and its sewer system. It felt great to testify on an item where all of the major environmental issues had been resolved during hearings past.  No huge controversy.  No crazy testimony.  In fact, no decisions or responses to public comment.  The final decision on the permit won’t be made for two months.