Const. administrative law, Los Angeles County, Los Angeles Regional Water Board, MS4, stormwater, stormwater permit, Water. Today, 31 years since the first issue of the LA MS4 Permit, 208 water bodies in the Los Angeles region remain polluted, putting human and ecological health at serious risk. Heal the Bay will be releasing a new report assessing the progress toward managing stormwater pollution in Los Angeles County, and how we can fix the permit when it is . 12 The Regional Board must fulfill its enforcement duties or else urban runoff and stormwater pollution will never be properly addressed in our region. But despite its new anti-degradation analysis, the Regional Board offers no legitimate socioeconomic analysis to show how degradation from stormwater discharges would be to the maximum benefit of LA County residents. It became a promise to do better, with no one being able to hold them accountable. Home About Donate Partner EmploymentInclusion StatementPolicies & Financials, LA Waterkeeper360 E 2nd Street, Suite 250Los Angeles, CA 90012Email: info@lawaterkeeper.orgPhone: 310-394-6162. The U.S. Environmental Protection Agency (EPA) is changing its regulations governing how small municipal separate storm sewer systems (MS4s) obtain coverage under National Pollutant Discharge Elimination System (NPDES) general permits. Benjamin Harris is the Shapiro Fellow in Environmental Law and Policy at UCLA School of Law for 2019-2021. All contributions are tax deductible in the United States to the fullest extent of the law.LA Waterkeeper's Tax ID number is 95-4444787. Residents wishing to speak during this hearing, or at any other hearing days, must register at this link by July 1 at 5:00 pm. Two main types of water flows through the storm drain system: (1) Stormwater, which is rainwater that cannot infiltrate into the ground naturally and instead builds up as it flows over the ground surface, and (2) dry weather runoff, which originates when it is not raining through activities such as overwatering lawns, or washing cars. Runoff pollutionis a big problem for us in Orange Countyits our number one water quality problem. The California Court of Appeal reversed the lower courts decision on the anti-degradation claim, finding that the lower court applied the incorrect standard of review. When imposing pollutant restrictions that are more stringent than the requirements of the federal Clean Water Act, a regional water board must consider a list of factors set forth in Water Code section 13241. It would be great if members of those communities could attend the public hearings and voice any concerns that they might have. 98 0 obj <> endobj Our goal is to have the state guidance laws not include Safe Harbor Provision to ensure the the laws uphold water quality standards and set examples for other regional boards. Most permittees in LA County have chosen to participate in a WMP or EWMP program, but there is no active way to measure whether these projects are making progress in curbing stormwater pollution. July 10, 2023 (213) 620-2095 Heres how these safe harbor provisions work: WMPs and EWMPs, however, are unenforceable. We anticipate this permit to go through its draft and comment periods later in 2015. Join our Marine Mammal Response Team to help combat the Domoic Acid Crisis. However, the 2012 permit included new provisions that shield cities in the County from being sued or fined for failing to comply with those receiving water limits, as long as they were implementing a watershed management program (WMP). %PDF-1.6 % This MS4 Permit Guide is both a useful tool for stormwater novices looking at their first munic-ipal separate storm sewer system (MS4 . (213) 620-2095 found that non-structural systems would cost $2.8 billion but provide $5.6 billion in. In 2012 - the most recent update of the LA MS4 Permit- the limits from the previous permit were carried over. A strong MS4 Permit holds permittees accountable to their requirement to reduce stormwater pollution. All contributions are tax deductible in the United States to the fullest extent of the law.LA Waterkeeper's Tax ID number is 95-4444787. no matter how badly they might be violating these limits. Join Heal the Bay toTake LA By Storm and demand a strong MS4 Permit! Proceed with caution, observe all posted signs, and watchoutfor heavy flowing water. Among other things, these findings recognized that the permit would impose additional compliance costs that would be highly variable among permittees, provided data on compliance costs for existing MS4 programs and on households willingness to pay for improvements in water quality, identified potential funding sources for permittees compliance costs, and described the costs of not regulating MS4 discharges. Here are the important details of the courts decision: Due to the State Boards failure to conduct a legitimate socioeconomic analysis showing the maximum benefits of water degradation, the court granted the petition from NRDC and LAW and issued a writ to set aside the State Boards decision approving the 2012 MS4 permit. The California Constitution provides that when the Legislature or a state agency requires a local government to provide a new program or offer a higher level of service to an existing program, the state must reimburse that local government for the costs of the program or increased level of service. Cal. And, of course, there remains the risk that this positive ruling will be appealed too, further delaying a final determination nearly a decade after the permits initial adoption. In other words, its a loophole or way around a regulation, making it possible for pollution to our waters to increase. We are advocating for SMMART Water, Not Stormwater. The pollution that is swept up by this stormwater contaminates our waterways, floods our neighborhoods, and even exacerbates the negative effects of climate change: worsening ocean acidification and triggering new growth of harmful algal blooms. The case involved the National Pollutant Discharge Elimination System permit issued to 86 municipal entities in Los Angeles County that operate municipal separate storm sewer systems (commonly referred to as MS4s). Additionally, it governs water quality in the San Gabriel River, which also flows into Orange County. The Los Angeles MS4 Permit incorporates limits (called receiving water limitations) on the amount and types of pollution that may be added to a waterbody (e.g. The Los Angeles MS4 Permit incorporates limits (called receiving water limitations) on the amount and types of pollution that may be added to a waterbody (e.g. As well, the remand will address several issues raised by the appellants that were not the subject of the lower courts rulings. These permits are issued under the National Pollutant Discharge Elimination System (NPDES) Program. The discharge of polluted stormwater is regulated by the Los Angeles Regional Water Quality Control Board through the Municipal Separate Storm Sewer System (MS4) Permit. This ruling reinforces the idea that WMPs and EWMPs are supposed to be rigorous and scientifically robust documents supported by substantial evidence. within their watershed and, if approved by the Regional Board, could be deemed in MS4 compliance. Now that you know the basics of this regulatory tool, let's talk about Los Angeles Waterkeeper's efforts to ensure strong and enforceable pollution protections for the region. S214855), the California Supreme Court reversed, however, and agreed with the numerous local agencies that argued those permit terms were not mandated by the federal Clean Water Act. Effective July 1, 2020, facilities located in the Los Angeles, Santa Ana, San Diego, and San Francisco regions may be subject to receiving waterbody quality-based standards. (213) 620-2283 MS4 permits govern discharges to municipal stormwater sewer systems, and the trial court and Court of Appeal both ruled that the Commission erred when it found that the MS4 permit terms requiring local jurisdictions to inspect various commercial and industrial sites, as well as install and maintain trash receptacles, were imposed by the state and not compelled by the federal Clean Water Act mandate that MS4 permits must contain controls to reduce the discharge of pollutants to the maximum extent practicable. In a 4-3 decision filed August 29, 2016 in the case of Department of Finance et al. The court concluded that the water boards explained their reasoning and acted well within their discretion in their analysis of economic considerations. For over 30 years, local governments have used loopholes in the MS4 Permit to get out of reducing polluted stormwater andallowongoingpollution of our neighborhoodsand beaches. Additionally, it governs water quality in the San Gabriel River, which also flows into Orange County. The MS4 permit is an important document that regulates how municipalities can allow stormwater to flow through the MS4 system and out into natural (or modified) waterways. Program Supervisor Ivar Ridgeway hb```f``*f`e```b@ !6 q 1d X|~3R%T6v`Q_/zHgK.%!X0p6qgd)}.8S!Pr:[NX;d+'7^v'#pQ But have you ever wondered why? 3151 Airway Ave. Suite F-110Costa Mesa, CA 92626, Privacy Policy / Social Media Guidelines / Accessibility Web Design by Website Muscle, Justice, Equity, Diversity, and Inclusion. Residents also have the opportunity to seek greater transparency around the MS4 permit. Following the Superior Courts decision, the Regional Board seems motivated to move past the litigation over the 2012 MS4 permit by issuing a new one on an expedited timeline. Other members of the public interested in advocating for improved water quality in LA County have the opportunity to attend and speak at the hearings. Engineering Geologist, Erum Razzak First up, LA Waterkeeper and the Natural Resources Defense Council (NRDC) filed a lawsuit against the State Water Board and the LA Regional Water Board (Regional Board) to invalidate the MS4 Permit for failing to meet its fundamental responsibility to protect the region from polluted urban runoff. Keep an eye out for What is being done to make sure we have an enforceable and strong MS4 Permit?- coming soon! In the revised fact sheet accompanying the proposed permit, the Regional Board includes a revised anti-degradation analysis in an attempt to justify the anticipated degradation of water bodies throughout the Counties. The Regional Board conducted no socioeconomic analysis at all in the 2012 permit to support degradation, so the State Board stepped in to conduct that analysis on behalf of the Regional Board during the litigation. If you look at page 92 of the report, you can see a map of impaired water bodies in the greater Los Angeles area. These programs allow cities to work together to develop stormwater management plans and implement stormwater infrastructure improvements such as green streets and stormwater capture projects. During a storm, the amount grossly increases to nearly 5-10 billion gallons or more. Where does this pollution end up? Generally, the public has 30 days to submit official comments on draft permits before the Regional Board will take a final vote at a board meeting. The Regional Board acknowledges that there are significant environmental, economic, and public health costs associated with poor water quality, and that removing the safe harbor provisions would avoid some of these costs. Water is a precious resource in California, and maintaining its quality is of utmost importance to safeguard the health of the public and the environment. Elimination System (NPDES) MS4 permits issued through August 2021. LA Waterkeeper is a 501(c)3 nonprofit organization. Environmental Scientist. Last year alone, rain in our region accounted for almost 200 billion gallons of stormwater flushing through our storm drain system and into local bodies of water. If permittees wanted, they could choose to develop stormwater management plans that included things like underground stormwater capture projects,, green streets, treatment wetlands, etc. The Commission earlier ruled that certain terms of the Los Angeles County Municipal Separate Storm Sewer System (MS4) permit were state mandates and, as such, subject to reimbursement by the State. To elaborate, the Regional Board claims that it would cost an extra $113 billion or so for cities to stop stormwater discharges, and that money could be better spent addressing the homeless problem in the region. But the Regional Board does not explain how money spent on infrastructure comes out of the budget for housing programs, instead relying primarily on self-serving letters from cities lamenting the high costs of stormwater controls. The court rejected the City of Duartes contention that the water boards were required to do a more detailed analysis of compliance costs for each permittee. This type of simple, measurable, and enforceable permit is more accessible to all stakeholders, including members of the public. Permits. We must hold permittees, the State Board, and the LA Regional Board accountable, assuring MS4 compliance throughout the county for the sake of our region's waterways and communities. Los Angeles Regional Water Quality Control Board MS4 Actions First Ventura County MS4 Permit 1994 Second Ventura County MS4 Permit 2000 Third Ventura County MS4 Permit 2009, challenged and readopted 2010 Fourth Ventura County MS4 Permit 2021 (July) Each permit includes more stringent and prescriptive requirements 5 Water Quality Background With more than 1,200 lawyers in offices across the United States and Asia, we provide a full array of corporate, commercial litigation, intellectual property and regulatory legal advice to a broad range of clients, including many of the worlds most innovative companies and industry leaders as well as public and not-for-profit organizations. City of Los Angeles LA Sanitation, CA Randy Neprash Project Manager, Stormwater Regulatory Specialist Stantec, MN Therese Walch Water Resources Manager City of Eugene Wastewater Division, OR Acknowledgements. v. Commission on State Mandates (Case No. As the state transitions from the COVID-19 emergency, please contact your local Water Board to arrange necessary file reviews. EPA in Texas Municipal Separate Storm Sewer System (MS4) Storm Water Management Program (SWMP) There are approximately 7,250 permitted Municipal Separate Storm Sewer Systems (MS4s), including large and small MS4s that exist nationwide, operating under a National Pollutant Discharge Elimination System (NPDES) MS4 permit. The last update to the permit occurred in 2012, and, to our dismay, the Los Angeles Regional Water Quality Control Board unanimously voted to approve a 2012 MS4 Permit that was even worse than before essentially setting up a scheme of self-regulation (meaning no regulation). The Court made clear that the California Constitution endows the Commission with the sole authority to make these decisions. The Regional Board also claims that more stormwater diversion requirements would increase housing and development prices, but only offers generic and outdated information about housing costs and homelessness for support. The Supreme Court set forth the following test for state mandate determinations: If federal law compels the state to impose, or itself imposes, a requirement, that requirement is a federal mandate. And besides, the only reason that cities might have difficulty complying now is because the Regional Board has not required cities to do enough over the past 30 years to address stormwater discharges. The Los Angeles Regional Water Quality Control Board (Regional Board) is in the process of issuing a new permit for water discharges through the municipal separate storm sewer systems (MS4) in Los Angeles County and Ventura County. Currently, the Orange County MS4 draft includes a Safe Harbor Clause, and we doing all we can to get it removed. Heal the Bay's Tax ID number is 95-4031055. You can also tag relevant government officials to help raise awareness. We argued, among other claims, that the Permit violated specified state and federal anti-degradation requirements that mandate that permits cannot allow high-quality waters to be degraded or already impaired waters to be further degraded. The MS4 Permit is up for renewal again this year, which provides an opportunity to advocate for a strong permit that has simple and straightforward requirements, measurable goals with transparent reporting, and enforceable deadlines. The coalition of nearly three dozen environmental, environmental justice, and community-based organizations that collectively represent tens of thousands of Angelenos is pushing for a permit that is Straightforward, Measurable, Multi-Benefit, Actionable, Reinvests Back into Frontline Communities, and Transparent. Copyright 2023 Heal the Bay. benefit. In early June, the Regional Board issued a proposed new MS4 permit that would cover both Los Angeles County and Ventura County. Public comments at the upcoming July hearings would help the Regional Board realize that it must do better to include community members in its stormwater permitting and enforcement processes. LOS ANGELES, CA 90015 - 2210 FAX: (213) 485 -2979 WWW.LACITYSAN.ORG . Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only. A strong MS4 Permit can help to ensure that our tax dollars are immediately put to good use to equitably invest in our communities and in our water future. Further, the Courts opinion states that the State has the burden to show the challenged conditions were mandated by federal law.. Enforcement is critical to reducing water pollution; it is how we keep polluters accountable. Share with us why you want to see a more enforceable MS4 PermitandendorseaSMMART, Not Stormwater MS4 Permit. (213) 576-6617 An MS4 Permit is an enforcement tool, a regulatory effort to address our severe pollution problem. The draft permit is expected to be released in mid-August 2020, followed by public workshops and a 60-day public comment period. Engineering Geologist, Erum Razzak Department of Finance's (Finance's) Comments on the Test Claim filed October 11, 2017 (327kB) (Water Code, 13260, subd. In the Regional Boards view, immediate compliance with water quality limits under the MS4 permit would be unrealistic for most cities due to technical and financial constraints, and because of the 5-7 year timeline for completing infrastructure projects. Winter rains in Los Angeles County flush an enormous amount of pollution into our storm drains from our streets, sidewalks, and neighborhoods. Seven years later, we have the numbers to prove it. MS4 stands for Municipal Separate Storm Sewer Systems. Stormwater systems directly affect our swimmable, drinkable, fishable waters. . We want to see these deficiencies remedied and discharge regulated in Los Angeles. It also built on the 2001 permits efforts to shift towards a watershed, rather than city-by-city, approach to regulation, with an emphasis on multi-benefit stormwater projects that address pollution while greening local communities. Remember, safety first! Program Supervisor Ivar Ridgeway The study. If Permittees request an 18-month or 30-month planning period, the Permit also requires the municipalities to develop and implement LID ordinances and green streets policies in at least 50% of the area covered by the WMP or EWMP prior to submitting the draft WMP or EWMP to the Los Angeles Regional Board. The Superior Court sided with the boards and upheld the 2012 permit, and NRDC and LAW appealed. Prepared by the Council for Watershed Health. EPA 833-R-001. In our recent blog, Let's Talk: MS4 Permit & Why It's Failing, we broke down what the MS4 Permit is and how it is failing to protect waterbodies in the LA region from pollution. The Supreme Court also agreed with appellants argument that the Commission properly declined to defer to the Regional Water Quality Control Board, a state agency, on the issue of whether the permit terms were federally mandated. Municipal Separate Storm Sewer System (MS4) is the network of storm water drainages throughout our cities that conveys storm water to the larger fl ood control channels and rivers and ultimately to the ocean. Los Angeles County voters already gave dischargers their carrot when they passed the Safe, Clean Water Program (Measure W) back in 2018. In November 2020, the State Board issued its final order on the LA Waterkeeper/NRDC petitions, ordering that the permittees in these watershed groups redo certain analyses or lose the benefit of the safe harbor. The Regional Board then releases the draft permit for official public comment. During the summer of 2013, Coastkeeper successfully negotiated the south Orange County MS4 permit. The Los Angeles County MS4 Permit allows Permittees the flexibility to develop Watershed Management Programs (WMP) to implement the requirements of the Permit on a watershed scale through customized strategies, control measures, and best management practices (BMPs). Five MS4 water quality permits affect Orange County waters because, as we all know, the waterways of Southern California dont follow our county and city lines. But the Regional Board effectively argues that it is not worth the money to require cities to comply with water quality limits now, because of the enormous opportunity cost from spending money on stormwater infrastructure instead of other social needs or public serviceswithout clearly explaining what those social needs or public services are. The court criticized the State Boards efforts to stitch together portions of the administrative record in a post hoc attempt to offer justifications for the degradation. Without any specific, measurable goals or deadlines, permittees can use their preparation of WMPs or EWMPs to be deemed in compliance, despite not being, and avoid enforcement action from the LA Regional Board or third-party groups, like LA Waterkeeper. Ct. App. We must hold permittees, the State Board, and the LA Regional Board accountable- and thats what we are doing. 2020 is our year to fight for justice and for the protection of public health. As the state transitions from the COVID-19 emergency, please contact your local Water Board to arrange necessary file reviews. LA Waterkeeper is a 501(c)3 nonprofit organization. Stormwater pollution contains heavy metals, trash, bacteria, and pH-affecting contaminants and accounts for more than half of the total pollution entering surface waters each year. As long as the Regional Board approves a citys participation in a WMP or EWMP, the city will be deemed in compliance with receiving water limitations during the plans timeline, even if its discharges continue to exceed receiving water limitations and impair water quality during wet weather conditions. . The 2012 permit was not established with clear and measurable requirements for how the plans will actually reduce the levels of stormwater pollution. Water quality is much worse within 72 hours of a significant rain event in LA County. The Regional Board will address public comment and release a revised permit that is again open for public comment. The Los Angeles MS4 permit is currently on appeal with the State Board because it includes a Safe Harbor Provision, a loophole in regulation that makes it possible for pollution to our waters to increase. (213) 576-6692 In LA County, the first MS4 Permit was issued in 1990, and yet, the vast majority of our water bodies remain seriously polluted. Copyright 2023 Heal the Bay. No Exposure Exemption More information about the upcoming July hearings will be posted on the Regional Boards website for the MS4 permit. XIII B 6(a). Presently, the MS4 Permit is up for renewal, and we along with a diverse broad-based coalition - are calling on the Regional Board to create protections that close the loopholes (like the safe harbors provision) and protect public health and ensure clean water with enforceable and transparent requirements. And whats next in the efforts to reduce it? A Safe Harbor Provision is a regulation that specifies that certain conduct will not be considered a violation of a given rule. Permit Application-A permittee city or county files a "Report of Waste Discharge" (ROWD), which is, in effect, its NPDES Permit application. The initial determination of whether a legislative or state agency act constitutes a state mandate subject to reimbursement is made by the California Commission on State Mandates (Commission). However, like all other Legal Planet posts, this post reflects only my own views and opinions.]. Colorado Supreme Court Certifies the State Engineers Enforcement Authority Over Substitute Water Supply Plans, Copyright 2023, Somach Simmons & Dunn | Attorneys at Law, All Rights Reserved. How Clean is the Water at Your Favorite Freshwater Swimming Hole? art. The Regional Board must fulfill its enforcement duties or else urban runoff-and stormwater pollution-will never be properly addressed in our region. Please complete the form below to subscribe and recieve our monthly eAlerts via email. It is estimated that nearly 100 million gallons of runoff water contaminated with trash, herbicides and pesticides, oils and grease, and more flows into our storm drain system every day. endstream endobj startxref While we appreciate and applaud the State Boards action, the one downside to their ruling is that they are allowing the LA Regional Board to conditionally approve the revisions and thus allowing the WMP/EWMP groups to maintain the benefit of the safe harbor provision while any remaining issues are worked out. An MS4 is a conveyance or system of conveyances that is: owned by a state, city, town, village, or other public entity that discharges to waters of the U.S., designed or used to collect or convey stormwater (e.g., storm drains, pipes, ditches), not a combined sewer, and not part of a sewage treatment plant, or publicly owned treatment works (POTW). This is our chance to advocate for a strong permit that holds permittees accountable so we can finally reduce stormwater pollution. Improving water quality by reducing stormwater discharges offers significant overall economic benefits and meaningful employment opportunities. Each year, Los Angeles County wastes 100 billion gallons of stormwater as it flows through our streets, into our rivers, and out to the ocean. If you are aware of any materials being discharges to storm drains, please call the City of Ventura illicit discharge hotline at (805) 667-6510. Well, lets get into it. LA deserves strong and equitablepollution rules that protect the health of our communities and the health of our ocean, rivers,and lakes. Under the 2012 rules, cities just had to submit a plan for reducing stormwater pollution (called a Watershed Management Plan) to the Board and have it approved to be in compliance, rather than having to actually demonstrate they are not exceeding specific thresholds for specific pollutants, such as copper or E. coli bacteria. Pollution that collects or gets used on our streets, walkways, landscape, and roadways gets washed into the storm drains and released into our waters without any treatment.
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