By Gary Walker
In a setback for Los Angeles County water quality officials, the U.S. District Ninth Circuit Court of Appeals has struck down an earlier court decision on storm water pollution and the role of the agencies involved in water quality policy.
The court ruled Aug. 8 that the county and the county flood control authorities are responsible for monitoring stormwater and urban runoff pollution that enters into the region’s waterways and flood control channels, including Ballona Creek.
The opinion comes seven months after the U.S. Supreme Court unanimously reversed an earlier opinion by the Ninth Circuit in the same case, which was brought by the Natural Resources Defense Council and Santa Monica Baykeeper (now Los Angeles Waterkeeper) against the county and the flood control district.
“It was a good day for water quality (proponents),” said Steven Fleischli, the resources council’s water quality director.
Environmental organization Health the Bay also cheered the ruling. “We applaud the court’s decision,” said Sarah Sikich, coastal resources director of the Santa Monica-based group. “Heal the Bay is committed to finding multi-benefit projects to further the enrichment of the environment and the community.”
County Fourth District Supervisor Don Knabe appeared angered by the appellate court decision, saying the court essentially overstepped its bounds.
“I am incredibly disappointed with the Ninth Circuit Court’s opinion. This type of judicial activism by them is not uncommon, but still very upsetting,” the supervisor asserted. “Earlier this year, the highest court in the land, the U.S. Supreme Court, sided with the county and overturned the Ninth Circuit’s previous decision.
“It is absurd to me that the county could be held solely responsible for what other jurisdictions dump in their cities that ends up in our channels.”
County officials say they are “disappointed” with the court’s opinion issued by the U.S. Ninth Circuit Court of Appeals that holds the county and the flood control district responsible for stormwater and urban runoff pollution.
Gail Farber, chief engineer of the flood control district and director of the county of Los Angeles Department of Public Works, said the decision adopts an argument about stormwater monitoring that the court expressly rejected in two previous decisions by the same judges in the same case.
“We view this as another legal skirmish in a case we thought had been resolved by the U.S. Supreme Court,” Farber said. “It is unfortunate that this case continues to divert public resources away from the work of improving water quality in the Los Angeles region.
“We will continue to work collaboratively with cities, regulatory agencies, and the environmental community to enhance water quality and protect our waterways,” she added.
Knabe, who represents Playa del Rey and Marina del Rey, accused the appellate court of seeking to force county officials to fund cleanup efforts that emanate from other places.
“The Ninth Circuit has now gone back and found the county liable based on a technical issue that they had previously rejected, although nothing has changed to warrant a reversal,” he said. “It appears to me that they will find any excuse to make the county pay for the pollution of other jurisdictions.”
Fleischli said making sure the county is doing all that it can to improve water quality is one of the next important steps now that the court has ruled that the county is liable for stormwater pollution. “Clearly as part of the remedy, we would like to see the county step up their deployment of green infrastructure,” he said.
Water quality advocates have been pushing the county to consider regional solutions to the problem of stormwater runoff. One such solution, according to local environmentalists, was Clean Water, Clean Beaches, an initiative that the county proposed earlier this year that would have charged property owners approximately $54 annually for stormwater runoff cleanup in a special mail-in ballot election.
Funds from the property tax assessment would have been used for local water-saving programs as well as creating regional watershed authorities.
Knabe led the charge against the measure. “While I have long supported efforts to ensure clean water and beaches, I have been against this measure from the beginning as it was not fair and transparent in content or process,” the supervisor said. “We must start over.”
Heal the Bay is one of the environmental organizations backing the Clean Water, Clean Beaches measure and lobbied the supervisors to approve placing it on the ballot earlier this year. Sikich said her organization continues to see the initiative as a mechanism for creating regional water quality programs that can help reduce stormwater pollution.
“Certainly we think Clean Water, Clean Beaches is a great way to fund initiatives that will benefit the ocean and our community,” she said.
Mar Vista has been one of the region’s leaders in sustainability and through the community council’s Green Committee has been active in the quest to reduce urban runoff through rain harvesting and water retention devices. Many of the homes that are featured on the community’s annual Mar Vista Green Gardens Showcase have these features.
“Reusing water can be part of a more comprehensive program which should have more emphasis on conserving water and greater financial incentives for those who do,” said Jeanne Kuntz, a co-chair of Mar Vista’s Green Committee.
County officials say the flood control district is considering its legal options in light of the Aug. 8 decision.
Santa Monica Bay Appeals court rules against Los Angeles County on urban pollution
By Gary Walker