INDIAN WELLS, Calif., May 31, 2002 -- "In the 30 years this October since the law was passed, it has remained virtually unchanged," Washington DC Lobbyist Leon G. Billings told attendees of the Contract Cities Summer Conference at the Renaissance Esmeralda Resort in Indian Wells, CA. "Even though there have been various attempts to modify the law, delay its deadlines and change its structure, none has been successful. In fact, only clarifying, and some would say strengthening, amendments have been enacted."
On April 25, 2002 the State Water Resources Control Board held public hearings in Sacramento in response to a request by some cities, which asked that the entire Los Angeles stormwater Permit issued last December be stayed.
The board questioned the wisdom, because the result would have been to reinstate the prior Permit, which has about 90 percent of the same provisions as the new one, so the board left it intact. To meet the challenges presented by these permits, the Los Angeles County Economic Development Corporation (LAEDC) has developed the BEACON (Balancing Economic and Clean Ocean Needs) Program™.
"The LAEDC's BEACON Program fosters public/private partnerships to promote economic health in Southern California. The program is designed to fully comply with the Clean Water Act in the letter and spirit of the law," said Billings.
The principal staff author of the 1972 Clean Water Act told the crowd that the original measure did not address the issue of stormwater. "It is a measure of the legislative skill of the late Senator Edmund S. Muskie that his two legislative crown jewels, the Clean Air Act and the Clean Water Act, not only have been maintained intact against often furious assault but have been enormously successful in accomplishing the objectives that were set out 30 years ago.
"It was our belief that stormwater, which we equated with non-point source runoff, could be best accommodated under the section 208 planning provisions of that Act. Section 208 gave metropolitan planning organizations like Southern California Association of Governments (SCAG) the authority to develop comprehensive plans to deal with sources of water pollution which were either primarily composed of runoff or did not lend themselves to the more precise regulatory framework applicable to industrial and municipal waste treatment plant effluent."
Billings also said Congress understood that stormwater presented a different kind of pollution problem than concentrated industrial and municipal waste. Thus, Congress said that stormwater controls should apply to the "maximum extent practicable" and it left to EPA and the states the determination of what would and would not be "practicable" controls.
"It is unlikely that Congress will change this provision of law at this late date," said Billings. "It has been on the books for 15 years and it is reasonable to assume that, like the other provisions of the Clean Water Act, Congress will expect the states and municipalities to just work it out. Thus, under the law, the cities, the permit holders in Southern California, will be required to implement certain stormwater controls. Should those controls not be implemented and should EPA fail to enforce or implement those controls, it is reasonable to expect that the citizen suit provision of the law will be exercised."
The citizen suit provision authorizes citizens to bring actions against EPA to enforce the law, and if EPA continues to fail to do so, to bring action directly against the permit holders, like cities and counties. Thus, the options available to the cities and counties are few.
"Of course, you can exhaust your judicial remedies, challenging the permit that has been issued," said Billings. "But at the end of the day, even if the State Water Board or the courts hold some of the provisions of the new permit exceed the maximum extent practicable standard or otherwise inconsistent with the Clean Water Act or the Porter-Cologne Act, there will still be myriad stormwater pollution rules with which the cities and the county will have to comply."
Billings describes it as "high stakes poker." And he urged City officials to seriously consider how they play their cards to protect themselves from a set of circumstances applicable to their municipality that are beyond their control, both financially and practicably. Any lawsuit would nearly bankrupt cities defending and losing their case, because the law allows for people to collect legal fees if they obtain a ruling against the city required to clean up stormwater pollution.
Billings says the clock is running on the cities and the counties to come into compliance with the specific permit provisions. If there is a failure to implement and there is citizen suit litigation, it is altogether likely that the litigants will demand and likely get their version of what a "best management practice" or "maximum extent practicable" rule means. Once a standard is established for any city in the basin, the Regional Water Quality Board will be expected to adopt standards applicable to or approve implementation programs for other cities under the permit at least as stringent as that which is agreed to as a result of litigation.
"While I am not here to address the specifics of the BEACON program, I do know that the Regional Water Quality Board, the State Water Quality Board and the Environmental Protection Agency have a great deal of flexibility with respect to the manner in which the requirements of these permits are implemented," Billings said. "You, your cities and the county have an opportunity to develop implementation programs and negotiate their acceptance with the Regional Board. The LAEDC's BEACON Program provides a mechanism by which those negotiations can take place collectively for the participating co-permitees. And for that reason alone, I commend it to your consideration."
