LAW vs. The Water Boards: Latest Battle in a Long War

This blog is the second installment of a series authored by LAW Staff Attorney, Arthur Pugsley. Read the third installment here.  


Last time, we explained why Waterkeeper filed suit against the “Site Specific Objectives” for copper and lead in the Los Angeles River. This week, we examine some of the history behind the lawsuit, and why Waterkeeper’s challenge is the latest battle in a long struggle to clean up our most polluted local waterways.

LA River flowing through downtown. Source.

LA River flowing through downtown. Source.

One of the most important requirements of both the federal Clean Water Act and the state Porter-Cologne Water Quality Act is for California to set Water Quality Standards (or Objectives) that protect the designated uses of the state’s waterbodies. Standards typically include: (1) numerical limits on pollution, (2) narrative standards that forbid pollution in toxic amounts or in amounts that negatively affect aquatic life, for example, and (3) policies designed to prevent further pollution. Standards must be set at levels that support all designated uses at all times, and include a margin of safety.

For example, in the case of PCBs, a family of extremely toxic organic compounds once routinely discharged into waterbodies nation-wide, the narrative standard applicable in the LA region forbids “purposeful discharge” of any amount of PCBs. The numerical standards set for protection of fresh water aquatic organisms is set very low at 14 nanograms per liter of water, reflecting the extreme toxicity of PCBs.[1]  (See Los Angeles Basin Plan, Ch. 3, p. 35.)  In the case of the LA River, designated uses (existing and potential) include water supply, groundwater recharge, fresh water and estuarine aquatic habitats, contact recreation (i.e. swimming), non-contact recreation (such as kayaking), navigation, sport and commercial fishing, and similar uses.  The 14 ng/L PCB standard is designed to protect the fresh water aquatic organisms in the LA River.

If a waterbody like the LA River cannot meet the standards for a particular pollutant, it is listed as “impaired” for that pollutant. Sections of the LA River exceed the 14 ng/L PCB standard, and those sections are thus listed as “impaired” for PCBs.  (A waterbody can be “impaired” for some pollutants but meet acceptable levels for others, or be impaired for one or more pollutants in one section but not others, as is the case with the LA River.)

The LA River suffers many listed impairments besides PCBs.

Snapshot of trash in Compton Creek, a major tributary of the LA River.

Compton Creek, LA River tributary.

Impairments exist for metals including copper and lead (both at issue in Waterkeeper’s suit), zinc, selenium, cadmium, and aluminum.  Portions of the river are also listed as impaired for toxic chemicals like DDT, cyanide, diazinon and the aforementioned PCBs.  Impairments for “conventional” pollutants include a hodgepodge of listing for coliform bacteria, algae, trash, ammonia, nutrients, oil, and pH.

Once a waterbody or portion thereof is listed as impaired for a pollutant, a Total Maximum Daily Load (TMDL) must be established for the listed pollutant along with a TMDL implementation plan. A TMDL is the maximum amount of pollution that can enter a waterbody each day while allowing the waterbody to assimilate the pollutant and support all of its designated uses at all times. Development of a protective TMDL is essential for any waterbody suffering from excessive levels of pollution.

A TMDL acts simultaneously to: (1) set an upper limit of “acceptable” pollution levels, (2) establish a type of pollution budget for the waterbody, and (3) develop a restoration plan.  It triggers several requirements that can give the federal and state acts real teeth in ensuring cleaner water.  For example, each source of pollution is assigned a Waste Load Allocation or Load Allocation for the pollutant (essentially, its upper permitted contribution to the overall pollution budget) that is a percentage of the TMDL.  Waste load allocations then must be incorporated into permits regulating discharges of pollutants, making the waste load allocation an enforceable limit on discharge of the pollutant.

Given how important TMDLs are for cleaning up polluted waterways like the LA River, and California’s reputation as one of the “greenest” of states, you might think California would be aggressive in developing TMDLs and the associated implementation plans.  But you would be very wrong.

California has a shameful history of failing to take TMDL requirements seriously.

The original Clean Water Act deadline to come up with a list of impaired waterways and set TMDLs was June 1979.  California did nothing to establish TMDLs by 1979…or 1989…or 1999 even.  It was only after a group of environmental organizations (including Los Angeles Waterkeeper) sued the federal government that the federal and state governments finally developed a schedule for issuing TMDLs.  The LA River TMDLs for copper, lead, and zinc finally became effective in 2008.  The TMDL issuance schedule is not yet complete, and TMDLs are still being promulgated today and will be for years into the future, even as we approach the 40th anniversary of the passing of the statutory deadline!

 

LA River enters the mouth of the Sepulveda Basin, a flood-control reservoir.

LA River enters the mouth of the Sepulveda Basin, a flood-control reservoir formed by the Sepulveda Dam.

Once a protective TMDL and an Implementation Plan are issued, the battle for cleaner water is far from over.  The ink on the 2008 LA River Metals TMDLs was barely dry when concerted efforts began to raise some of the TMDL limits.  The cities of Los Angeles and Burbank successfully lobbied for weaker TMDLs for copper (and more generous waste load allocations for themselves) in a small section of the river in 2010.  That was just the warm-up for 2015, when the Water Boards approved relaxing copper TMDLs by as much as an astounding 969%—in effect, nullifying the existing TMDLs in all but name. Waterkeeper is challenging that action in court, as explained in the first blog post.

Next time, we will examine in detail “Water Effect Ratios” or WERs.  WERs are obscure and seemingly innocuous terms in the equations used to establish the numerical limits in the TMDLs, but when calculated and applied improperly can undo all the hard work that goes into developing a protective TMDL.  WERs play a central role in Waterkeeper’s lawsuit.

 


This blog is the second installment of a series authored by LAW Staff Attorney, Arthur Pugsley. Read the third installment here.  


 

[1] A nanogram is 1/1,000,000,000,000 of a gram.  For comparison, a single grain of birch pollen weighs on average about 8 nanograms.

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