Take Two for December 3, 2012

LA's stormwater spider web heads to Supreme Court, as county, environmentalists plan for new runoff rules

People drive their cars through deep wat

GABRIEL BOUYS/AFP/Getty Images

People drive their cars through deep water in Los Angeles, California, on December 22, 2010. Downtown Los Angeles received one-third of its annual average rainfall in less than a week. As of midmorning yesterday, the rain gauge at the University of Southern California campus recorded 5.77 inches.

Underneath Los Angeles County a spaghetti of drains carry rainfall runoff to the ocean. Whenever this stormwater system gets a workout, pollution at beaches rises, and under federal law, someone’s responsible for it. A dispute between environmentalists and the county’s flood control district reaches the U.S. Supreme Court this week but may not untangle that problem.

Five hundred miles of channels, 2800 miles of drains: it’s called a municipal separate storm sewer system, and that sprawl under LA is mostly run by the county’s flood control district, says the Natural Resources Defense Council’s Steve Fleishli.

"They operate more of this system than any other city in Los Angeles and more than all of the other cities combined," Fleishli says. "And so they collect all of this urban slobber and convey it into our local waterways."

That slobber is actually rainfall that mixes with bacteria, metals, oil, and animal feces when it hits pavement. Four years ago, the NRDC and Santa Monica Baykeeper (now renamed LA Waterkeeper) sued the county’s flood control district to clean it up. According to the district’s Gary Hildebrand, the county has long argued the problem starts outside storm drains.

"The pipes, the channels, clearly they’re not creating pollution," he says. "The pollution comes from the watersheds that drain to them."

Hildebrand says cities have storm systems of their own that connect to the county’s infrastructure, and those cities have more regulatory power to prevent pollutants from mixing into runoff.

"When you move out into the watershed, regulating the land uses and the activities in those watersheds that result in that pollution," Hildebrand says. "Land use regulation is the responsibility of those municipalities. The district has no land use authority."

Under federal law, the flood control district and more than 80 cities in LA county share a permit to operate the region’s stormwater system, but must limit pollutants in it. Still, runoff chronically contains too much lead, copper, cyanide, fecal bacteria and other nasty materials. NRDC’s Fleishli argues the county’s flood control district has tried to evade responsibility.

"They’ve even said that the stormwater could be so polluted that it was on fire and they wouldn’t be responsible for it under the permit," says Fleishli.

The Ninth Circuit Court of Appeals decided in favor of the NRDC and Waterkeeper last year. The county’s legal team appealed to the Supreme Court. But in a strange turn of events, the Supreme Court only agreed to hear a narrow part of the dispute, says UCLA law professor Sean Hecht.

"The question in front of the court is a question about when you have pollution in a body of water and you move it, you pump it, you somehow convey it, it ends up in a different part of that body of water, are you adding pollutants in a way that requires a permit," says Hecht.

Hecht says the problem with the Supreme Court’s question is that LA’s storm system isn’t set up like that.  

"The particular question that the court is looking at has nothing to do with the facts of the case, he says. Hecht filed a friend of the court brief on behalf of activists including the Friends of the Los Angeles River. He has argued the court should dismiss the case because answering the question won’t resolve the dispute between the county and the NRDC.

Several other groups have weighed in offering similar arguments. Amanda Leiter teaches at American University’s Washington School of Law. A former Supreme Court clerk, she filed a brief on behalf of several law professors – and she says it’s surprising the case has gotten this far.   

"Once you dig into the details of this case it presents complicated issues but issues having to do with the terms of a narrow permit where the Supreme Court is not particularly expert and whatever the resolution is, is not of relevance beyond those who are subject to this particular permit," Leiter says. 

LA County insists the Supreme Court should make a decision, not just because the county seeks to overturn the 9th Circuit’s ruling. The flood control district’s Hildebrand says confusing language in that ruling could undermine protections for the Los Angeles River.

Complicating everything, while this case has wound upward through the court system, the regulators who set penalties for stormwater pollution have just issued a new permit to the county and cities that manage storm drains – the first in 11 years. It’s hard to predict how the Supreme Court’s action would influence runoff rules under this new regime. What is clear, says NRDC’s Steve Fleishli, is that the health of LA’s rivers and coastline depend on getting stormwater cleaned up.

"This permit that was issued by the Los Angeles Regional Water Quality Control Board has importance in terms of its role enforcing the cleanup of this significant source of pollution," Fleishli says. 

Officials for the county say they agree. This week the flood control district’s Gary Hildebrand and other officials began a massive public campaign for a parcel tax. County property owners would vote on the tax by mail. If it passes, the flood control district would reap more than 200 million dollars a year to spend on methods to capture, control, and filter stormwater before it hits the beach.


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