Court: Stormwater MS4 jurisdiction of Los Angeles responsible for ALL pollutants in waterway, regardless who polluted

Tuesday, August 13, 2013 11:12 AM

Still Responsible
By: Kaspersen, Janice: Stormwater Editor

http://www.stormh2o.com/SW/Blogs/Still_Responsible_1760.aspx

My take on Kaspersen: This follows what I have always interpreted the true intent of MS4 to be. It has never enforced that way, but looks like it might be. Now, LA has to sue the upstream contributors, whether they are MS4′s or not. This is (although cumbersome and expensive) in keeping with the ultimate goal: determining each source’s fair share of liability, and therefore its fair share of mitigation. Agriculture (“Ag”) will no longer get a free ride, nor will the municipalities too small for MS4 permitting. None of it matters until the mandate is funded, though.

Required or not, if there is no budget-able revenue source with which to fund activities, especially BMPs, which tend to be structural at the MS4 level, they will not be built. Non-compliance will rise, but compliance will not follow.

This is where there is a disconnect between the legislative/regulatory world, which is guided by documentation and meeting action, and the executive world, whose actions are dictated only by the resources available.

As downstream (receiving MS4) is essentially being forced to be the regulator of upstream contributors, their first order of business should be to sue the state for failure to enforce the permit conditions of the upstream discharger. In the case where it is Ag or a non-MS4 municipality, that will have dubious result. But for all permitted sources, it should at least buy LA some time, while CA proves it was not negligent on its end…did they make sure no one put things they are not allowed to put into waters flowing into LA?

Of course, a ballot box solution scenario is preferred. In most court rulings, though, there is a timeline, with milestones, for resolution. If elections and legislation can direct the immense amounts of cash within any foreseeable timeframe, great, everyone wins. If not, the courts will make someone do something. Litigation is the only way I can imagine getting that cash out of a population reluctant to provide it.

The U.S. Supreme Court (SCOTUS) ruled unanimously in January 2013 that water flowing from one section of a waterway into another is not a “discharge”:

SCOTUS LA MS4 Ruling

In its Opinion, SCOTUS did not contest previous findings that 1) Monitoring data in this case identifies aluminum, copper, cyanide, fecal coliform bacteria, and zinc as pollutants exceeded, and 2) “that the pollutants of “thousands of permitted dischargers” reach the rivers.”

It is critical to note that SCOTUS refused to touch the matter of “the exceedances detected at the in-stream monitoring stations are by themselves sufficient to establish the District’s liability under the CWA for its upstream discharges.”

Perhaps anticipating this conundrum, the finding notes that: “a renewed permit was approved for the District’s MS4. Unlike the District’s prior permit, which required only in-stream monitoring, the renewed permit requires end-of-pipe monitoring at individual MS4 discharge points.”

And so we come full circle. A myriad of pollutants, collectively not typical of one type of source, from numerous discharges, reach the MS4. That MS4 will add monitoring (and, presumably, documentation) of discrete point sources within its jurisdiction. When (not if) this case makes it back to court, the MS4 will be better able to demonstrate compliance of those sources over which it can reasonably be expected to control.

When this occurs, I look for the regulatory reaction to be more favorable to the MS4 itself, and less favorable to external contributory (i.e. upstream) sources.

As with waters everywhere, we find the old stand-by reason to do nothing, flushing polluted waters into receiving waters, is not an acceptable option. As the upstream tributaries feed the San Gabriel and the Los Angeles, the San Gabriel empties into Seal Beach, the Los Angeles into nearby Long Beach harbor. Both, and the short, intensely populated and industrial area in between are often closed due to pollution events. Here’s some data on their historical water qualities and incidents:

http://brc.healthebay.org/?st=CA&f=1&tabid=2

It is important to note among the Dry and Wet Weather samples: when it is Dry, the beaches have generally good water quality, when Wet, the beaches quality plummets. No doubt due to this flushing effect.

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About steventodd

Both parties are broken by big money...what to do? I'm a dad, husband, son, taxpayer, voter, civil engineer, reporter, blogger, rabble-rouser and honest guy.
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