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Controversy over new stormwater program

Nov 18, 2015

Regulators approve a measure that environmentalists said would unfairly shield cities, county from lawsuits

By Joshua Emerson Smith | 9:35 p.m. Nov. 18, 2015

Source: http://www.sandiegouniontribune.com/news/2015/nov/18/stormwater-pollution-water-quality-san-diego/

[Washing your vehicle at a commercial facility, such as this one on University Avenue in San Diego city, instead of in your driveway or on the street can help reduce the level of pollutants entering storm drains and eventually the ocean. / photo by Hayne Palmour IV * U-T]

 

In the ongoing battle over regulating pollution that seeps into storm drains and contaminates beaches, environmentalists seem to have suffered a setback Wednesday.

For years, cities and counties have routinely failed to meet standards for reducing toxic chemicals, heavy metals and certain kinds of bacteria in stormwater. Regulators have had limited success in forcing municipalities to spend enough money to address the issue, largely because the costly upgrades require the cooperation of everyone from developers to business owners to the average resident.

At a meeting that lasted all day, the San Diego Regional Water Quality Control Board adopted a new program focused on incentivizing jurisdictions to create innovative plans for cleaning up local watersheds.

Once regulators approve the so-called water-quality-improvement plans, this new approach would give municipalities legal immunity from third-party lawsuits by environmental groups. The provision has driven a wedge between groups that were recently collaborating — at least on the surface level — on how to make stormwater gains.

“It’s troubling. It’s real troubling,” Matt O’Malley, staff attorney for San Diego Coastkeeper, said after the board’s Wednesday session in Mission Valley. “We want to see results, not just plans for results.”

While environmental activists have voiced concerns that the approach eliminates long-standing citizen enforcement efforts, government officials seem ready to embrace the new paradigm for judging compliance.

“It’s not cutting [environmental groups] out,” said Bill Harris, a spokesman for the city of San Diego. “You’re not cutting out anybody. We participate with every organization and every community group and every environmental group, period.

“I’ve been watching this a long time; the board itself, its staff, is being very clear that they intend to enforce,” he added. “And enforcement in this case means the potential for very, very stringent penalties.”

The regulatory approach, first adopted in Los Angeles County, is being considered in several other regions, infuriating environmentalists up and down the state.

Water-quality groups are challenging in court the new permitting process in Los Angeles, with similar strategies being weighed in San Diego and San Francisco counties.

“It’s specifically designed to insulate them from citizen enforcement,” said Daniel Cooper, an attorney with Lawyers for Clean Water, which represents a number of water-quality advocacy organizations across California. “Because we got so close to actually forcing [them] to spend a lot of money and really do the job and hold them accountable, the regional board created a program to shield them.”

Earlier this year, the state Water Quality Control Board, which oversees all the regional water boards, issued a memo in response to environmental groups’ objections to the permit program in Los Angeles County. While the regulators tightened the stormwater standards for Los Angeles, they also suggested that other regional water boards consider adopting the new approach.

Granting compliance status to municipalities that show a good-faith effort to reduce stormwater pollution would give them the time and flexibility to experiment with various strategies, according to officials for the San Diego regional water board.

“Municipalities would like to see some assurance that they will not be held in violation of water-quality objectives while they’re undertaking that effort,” said David Gibson, executive officer of the San Diego regional water board.

“It is a question of technology and funding,” he added.

In exchange for immunity from third-party lawsuits, municipalities’ plans must include annual benchmarks for reducing individual pollutants. The water board still needs to approve the benchmarks and reserves the authority to ratchet up those standards over time.

In San Diego County, jurisdictions are organized under several watersheds. The San Diego Bay watershed, which includes the city and county of San Diego, could have a plan drafted within the next 18 months.

The region has had an overarching set of stormwater-pollution regulations in place since 1990 to meet requirements of the federal Clean Water Act.

Curbing such pollution involves construction of stormwater treatment facilities, building improvements that slow down the flow of water so more contaminants can percolate into the ground and a range of consumer actions geared toward preventing toxins from entering storm drains — from requiring residents to wash their cars only at approved commercial locations to requiring restaurants to recycle their cooking oil.

To a large extent, the major obstacle to cleaning up stormwater systems, which often feed into rivers and creeks that empty into the ocean, is financing. To implement a comprehensive plan that would satisfy water board regulators, the city of San Diego estimates it would need to spend roughly $3 billion over the next 20 years.

“The city has reported and continues to suggest that we are going to be building quite a bit of stormwater related infrastructure — doing a lot of retrofits and making sure that all of the development we do moving forward is very stormwater-conscious, if not stormwater-centric,” Harris said.

 

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