May 7, 2004 - From the June, 2002 issue

LAEDC Unveils New Local Runoff Program To Address Federal Regional Water Runoff Compliance Plan

Local governments and environmental regulatory agencies are both scratching their heads over how best to enforce the Clean Water Act as it applies to stormwater runoff. The issue has far-reaching implications, with municipalities challenged to meet the required standards and businesses potentially incurring costs that could drive them away to other markets. The LAEDC recently launched a new program to address these concerns, BEACON (Balancing Economic and Clean Ocean Needs). MIR discusses the BEACON program with Leon Billings, one of the lead authors of the original Clean Water Act and consultant to the BEACON program, and Lee Harrington, President of the LAEDC.


Leon Billings

Mr. Billings, the Clean Water Act is now 30 years old. With that kind of perspective, how do you analyze the success of the act? Has it achieved what it intended? Where, if anywhere, has it failed to meet expectations?

LB: The Act has in many respects outperformed expectations. There has been a hugely significant success in controlling the pollution discharges from industries and municipalities. There has been significant progress toward reuse of wastewater. There has been significant water quality improvement in terms of measured results.

The goal of the Act was to restore and maintain biological integrity of receding waters. An interim step was to make the water supportive of fish, wildlife, and recreation in and on the water. In many cases in the country, the interim goals have been achieved. In some cases, the longer-term goal has been achieved. But clearly, still more needs to be done.

As a past leader in drafting that federal Clean Water Act, could you address how much leverage was left to local government when it comes to mitigating and monitoring water runoff?

LB: That's a question that has to be put into context of a law, as you earlier noted, which is 30 years old. When the law was written, the original authors did not have a framework for regulating stormwater discharges that was parallel to the system that was there to regulate municipal and industrial waste discharges.

We created a planning process under section 208 of the act, which authorized municipal planning organizations like SCAG to come up with basin-wide and area-wide plans to deal with both discharged and non-point source runoff, and to develop the regulatory mechanisms to achieve the result that those plans entailed.

Unfortunately, to the extent that those plans were done at all, the Environmental Protection Agency totally ignored them. In later years, they developed a scheme for regulating at least the stormwater discharges in pipes, which is under the rubric of the old industrial and municipal waste discharge procedure, rather than under the area-wide planning procedure. Under the law, it has been interpreted by the courts, there is very little flexibility for municipalities and counties to determine how they go about this process.

Lee, what has LAEDC heard back from local governments about the dilemma they find themselves in regarding runoff?

LH: There's still a considerable amount of confusion out there as to what will ultimately be required and how we can ultimately conform to the regulations, but do it in an economically efficient manner. There are a number of people in local government who still question whether or not they ultimately are going to have to live with these regulations. We're very clear that the regulations will be imposed.

What we don't want to see is a polarization between citizen groups and potential lawsuits and the city's ability to continue to manage their future development or redevelopment. That's the issue that causes us the greatest concern. We're concerned that this won't be approached in the most economically rational manner, and could have negative implications for development, redevelopment and business in general.

Please elaborate. What's at stake here for the public re how EPA and the locals work out the regulation of runoff? What's the region's economic interest in a solution?

LB: Under the law, EPA is required to approve stormwater runoff, stormwater discharge control programs, which are "practicable and achievable." Those are very carefully selected words that were added to the statute in 1987 after the 9th circuit court said that stormwater discharges from pipes had to be regulated like industrial and municipal waste. Congress said that these wastes only had to be regulated "to the maximum extent practicable."

The practicability test doesn't exist under other provisions of law. Under the stormwater provision, however, there is an opportunity for these communities in Los Angeles and elsewhere in the Southland to flesh out the details of these permits by reaching agreements with the regulatory agencies on what indeed is practicable and what isn't practicable. That is the underlying opportunity to assure that the economic interests of the region are protected.

And again, what's at stake here?

LB: If the communities in the basin have taken an affirmative approach that they want to try to work out practicable responses to the permit, then there shouldn't be any significant adverse impact on the region's future.

If on the other hand, this ends up as a judicial enforcement process, you could well imagine the courts, not the regulators, defining what's practicable, citizen suits establishing what the rules are, and very onerous requirements being imposed on communities.

LH: I would analogize what's at stake here to the roll out of the Clean Air Act in the late ‘80s, early ‘90s, where we had environmental regulations which were already on the books that had to be implemented on a regional basis. Unfortunately, we got off to a very poor start in terms of that roll out that was not oriented to a business-friendly approach.

It actually took a task force that the LAEDC created about four years ago to change the attitude of the regulators so that the manner in which the regulations were implemented wasn't negative relative to the business community, or at least was implemented in a more business-friendly fashion of helping the business community conform to the regulations.

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In that interim, we saw virtually thousands of businesses leave the region, and Southern California Edison even documented that in a study, because of the way that the Clean Air Act regulations were being rolled out by the AQMD. Today there's a much friendlier attitude on the part of the regulators. Not that they don't want to see the regulations implemented, but they're there to try and help businesses come up with effective and cost-effective ways to get that done. That's what needs to happen here.

But where real help can be provided to the cities in terms of the analysis of the different ways that we may be able to meet the spirit of the regulations, do a better job cleaning up the water, but come up with the most economically rational solutions to do that.

LB: Let me just point out that this requires attitude adjustment on the part of everybody. The people who are affected by the regulations can adopt a hostile uncooperative posture, which would not be in their best interest. The regulators could opt for a hostile uncooperative posture. And the cities could opt for that. If any one of those three adopt a hostile posture, the likelihood of successful implementation - reasonable, fair, practical implementation - becomes much more difficult. External forces then will control the outcome.

LH: The other thing that's important here is to recognize that many of the cities in Southern California really have limited resources and limited staff capability to deal with this issue. If each is left to their own resources and devices, what we will have is a very costly implementation from the standpoint of the staffing and program development.

There could be a shared opportunity on the part of cities to do this together to the maximum extent possible, share in the costs, develop a common resource capability that can come up with not only the best solutions from a cost and implementation standpoint, but also perhaps some common solutions that can best be implemented in partnership between cities or even a region that may have a better outcome in terms of clean water than doing this city by city, and site by site.

The LAEDC initiated the BEACON program specifically to address these concerns. Can you give our readers a brief description of the program and its objectives?

LH: The BEACON Program is really intended to be a joint powers agreement that cities can join for the purpose of commonly funding and developing the implementation plans and strategies and programs that will both meet the regulations and do it in the most cost-effective business-friendly manner.

Basically, this is going to take some real expertise from a number of areas. For example, Leon is a resource relative to understanding regulations and how they're implemented, and how solutions can be sold from a practicability standpoint to the regional water quality board and the state water quality board.

We'll need engineers that have experience in practices not only here but across the country that have worked and have worked from a cost standpoint. We'll need legal help relative to all of the legal processes involved in its regulatory milieu. And all of those resources can be commonly shared and leveraged together to get outcomes that both will meet the regulations and be practicable from an economic standpoint.

LB: To be very specific, and this is true with respect to the permits issued in Southern California, there must be programs to educate and train public employees to respond to the requirements of the permit. You can do that one community after another. Or you can figure out a way to have collective employee training and education programs, which will immensely reduce the cost of those kinds of programs.

A major element of this permit is public education. Permit holders have to make so many "impressions" on the public. This is the kind of program, which only makes sense if it is done collectively. It would be a terrible waste of time and effort to try to do it on a community by community basis, especially in an area as complex as Southern California.

What constitutes success for this program? If we were to come back to you in a year's time, what will we see?

LB: What will constitute success in a year's time will be having the public employee training programs up and running, having the public education programs up and running, and having done some of the rudimentary elements of the permit, such as putting trash cans and covered transportation stops. Remember that a number of the elements of these permits are elements of previous permits. So they are either done or will have to have been done, like inspecting sewers and so on. Another measure of success will be having an adequate map of the stormwater system to the extent that it doesn't exist. A lot of this is pretty rudimentary.

Down the road, at the end of this permit in 2006, 60% of the trash that currently goes out of storm sewers into the rivers in the basin have got to be eliminated. That is a task that is going to require engineering, creativity, and investment. But that's a five-year goal, not a one-year goal.

LH: For me sucess would be that we see cities working together, trying to share resources, with an objective of both meeting the regulations and doing it in a business-friendly manner. If we can be there in a year from now, we're off to a good start.

LB: Maybe I'm a bit of a Pollyanna, but I believe that the regional water quality control board would rather make love than war. There are opportunities to find solutions that work for everybody if everybody works together. That's the key. At the end of the day, if everybody's working together, this is doable. If everybody's going their own way, litigating and so on, you're going to have a significant crisis on your hands.

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