Water Board Unanimously Approves MOU with City on Septic Ban
• Some Environmentalists, Surfing Activists and Sewer Opponents Are Critical of the Final Document
BY BILL KOENEKER
The Los Angeles Regional Water Quality Control Board last week unanimously approved a memo of understanding between the City of Malibu and the water board for implementing the Civic Center septic ban by building a wastewater treatment plant in the area.
However, the MOU has apparently left a bad taste with many environmentalists, who urged the board to not approve the MOU. They also complained they were left out of the negotiations.
Mark Gold, the president of Heal the Bay called last week's RWQCB vote—the Malibu City Council had approved the MOU the week before—"an absolute knockout in round 3 in the battle for improved water quality at Surfrider, Malibu Lagoon and nearby beaches."
Gold, in his blog, Spouting Off, explained he compared City Attorney Christi Hogin's testimony as, "clos[ing] the done deal for weakened septic system regulations with the [RWQCB] like watching boxing champ Manny Pacquiao take on Woody Allen. No contest, Hogin should be in line for a big raise for negotiating a deal for Malibu that will save taxpayer's millions at the probable expense of water quality at beaches visited by millions of visitors each year. And she did this when Malibu's only leverage was its stated threat of litigation against the Regional Water Board for enforcing previously approved prohibitions."
The MOU, which was negotiated between City Manager Jim Thorsen and the executive officer of the RWQCB Sam Unger, contains language that requires further monitoring for certain phases and boundaries, such as the Malibu Knolls, before those areas are required to hook up to a sewer plant.
However, Mayor John Sibert called it a "sea change" between the city and the water board. "The underlying premise of the MOU is that science should help define policy. Under the MOU, the city and the Board commit to undertaking monitoring and testing and using that information to determine the steps that will truly improve water quality."
Gold made it clear that he felt the environmental and surfing community "did not get" by the board approving the MOU.
"Despite nearly a five hour hearing and extensive testimony, [we] did not get greater accountability for the City of Malibu, a commitment for disinfection or sewering of homes on Malibu Road and properties near the pier by 2012, a city commitment for recycled water storage, the elimination or reduction of phase 3 or even sensible monitoring," he charged.
Gold even took the water board staff to task. "We heard a lot of rhetoric from the Regional Board attorney on how the board couldn't order Malibu to do anything in the MOU. Tough to negotiate with that attitude. This was the MOU, not a discharge permit. Of course, the Regional Board had unlimited clout with the existing, enforceable, onsite disposal prohibition in the Civic Center, but it refused to use that leverage to get Malibu officials to agree to doing anything more than what they already agreed to in the MOU," he added.
Gold said it was "Hogin's tough, no-nonsense approach [that] clearly made the difference." His example: Hogin saying, "Malibu is laying down their arms without unloading them."
Gold called it a "Palinesque approach to environmental regulation if there ever was one. Hogin even said that Malibu's signing of the MOU was an 'act of faith' Maybe for Malibu. For the Regional Board, it was more like a leap of faith…across the Grand Canyon."
Taking another shot at board members, the Heal the Bay head said despite Councilmember Jefferson Wagner's support for water storage as necessary for water recycling, for irrigation, and firefighting, Hogin refused to commit Malibu to recycled water storage.
"The best the board could get her to do was to commit to studying storage and storage infrastructure. Hogin's tactics over the course of the afternoon were simple, yet 100% effective. Whenever the board asked her to agree to an MOU change, she refused and stated that the city council hadn't empowered her to make significant changes—just clarification. And she did this with two council members at the hearing. This is pretty tough."
Back to Hogin, Gold claimed she "pulled off the unimaginable. She convinced the board that beginning beach monitoring near Malibu Road was too expensive to begin before 2014, a time period after the vote on the first assessment district.
The Regional Board approved a septic ban for the Civic Center in 2009. The state Board adopted that same resolution in 2010.
The measure prohibits all new onsite wastewater discharge systems in the Civic Center area and prohibits discharge from existing OWSDs based on a phased schedule to cease discharges.
The prohibition, according to the RWQCB, does not prevent repairs, maintenance and upgrades to existing systems, provided they do not expand the capacity of the systems or increase flows of wastewater.
Malibu city officials initially objected to the adoption of the ban and expressed its intent to file a lawsuit challenging the septic ban.
In 2010, the city and the water boards entered into a tolling agreement by which they agreed specific milestones to assure completion of phase one by November 2015 and phase two by November 2019.
The city and the water boards agree that certain properties in the area designated as phase three may not be connected to a facility based on monitoring data to be collected by the city under the oversight of the Regional Board.
"If it is determined that the phase three properties must be connected to a facility, they must be connected by November 2025," the RWQCB resolution states.
If an assessment district is not approved by dischargers, the Los Angeles water board may enforce all state policies, plans, or regulations to gain compliance, including the requirement to upgrade each OWDS to advance treatment or other appropriate means by November 2019. "Advanced treatment for OWDS is defined as disinfection treatment to a level that meets applicable water quality standards for fecal indicator bacteria and or denitrification not to exceed a total nitrogen concentration of 10 milligrams per liter (mg/l) for those properties impacting an impaired water body with a nutrient total maximum daily loads or TMDL."
All property owners that are required to upgrade their system will need to obtain city of Malibu building permits and obtain an operating permit, in accordance with city ordinances.
The city's operating permit program requires that advanced residential OWDS must be inspected every three years by a certified OWDS inspector.
The Los Angeles water board will also require effluent monitoring for these systems that shall be submitted and reviewed by the Los Angeles water board on a quarterly basis for total suspended solids, total nitrogen, total phosphorus and fecal indicator bacteria as appropriate.