Heal the Bay's Mark Gold Asks: What Water Quality Control?

The Los Angeles Regional Water Quality Control Board held a two-day marathon meeting June 22-23. I've been attending board hearings for nearly a quarter century, and this meeting had to be the most dysfunctional session I've ever attended. I'm now convinced that this is the most anti-environmental board since the Gov. Deukmejian days.

Heal the Bay commented on seven different items on the agenda of the meeting, which took place in Ventura and Glendale. Among the most contentious items: the Ventura County stormwater permit and fecal bacteria Total Maximum Daily Load limits for the Santa Clara and Los Angeles rivers.

Unfortunately, logic and a responsibility took a holiday at the hearings. 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 federal 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.

The first major item concerned the fecal bacteria TMDL limits for the Santa Clara River. Numerous segments of the river have been impaired for high bacteria counts for years, but several cities oppose stricter limits, including Santa Paula, Fillmore, and Santa Clarita. These municipalities began humming 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.

Yes, local governments are hurting financially. But that's no excuse to ignore the requirements of the Clean Water Act. Public health and aquatic life shouldn't suffer because cities have polluted waterways 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 main event-the mulligan permit in Ventura-didn't finish until 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. The State Board decided to punt the permit back to the Regional Board to "voluntarily" rehear the permit.

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 staff amendment to weaken the permit by allowing off site mitigation of Low Impact Development requirements when difficult to implement on-site? Not enough. Add the ability for developers to use biofiltration off site? Still not enough for the BIA, so definitely not enough for the Regional Board.

The BIA effectively focused on its demand to add biofiltration on-site and got board support. The city managers expressed approval of the original deal with Heal the Bay and the NRDC, but they also said that the staff amendment would make it a lot easier and cheaper for them to comply. So much for a deal being a deal.

At the end of the circus performance, the board asked staff to craft on site 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.

The BIA got a do-over on the permit based partially on its fallacious argument that the enviro-city deal wasn't properly vetted to the public. (The enviros, Ventura County cities and the state strongly disagreed, as the LID language was released to the public well before the 2009 hearing). Now, based largely on the testimony of the BIA, 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 hour-long 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.

We regrouped for Friday's critical consideration of the bacteria TMDL for the Los Angeles River. I feared a travesty 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. 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 issues, but his overly aggressive tactics seemed to backfire this time.

Heal the Bay opposed the TMDL too, but not for economic reasons. The TMDL doesn't require any significant action for four years, had more loopholes than the federal tax code, and doesn't include 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.

Low Impact Development and green streets, alleys, and parking lots comprise the only cost-effective solution to polluted runoff on a large scale. We need 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 and the support from L.A. and Long Beach, the board voted unanimously to support the TMDL.

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. With the current makeup of our local Regional Board, it may be the best we can hope for.