LA Regional Water Board's Disappointing New MS4 Permit 

july 27, 2021

On Friday, the Los Angeles Regional Water Board (LA Regional Board) reissued the permit governing municipal stormwater discharges that once again allows cities to escape responsibility for polluting creeks, rivers, and beaches for another decade. Los Angeles Waterkeeper (LA Waterkeeper) and our partners have long fought to ensure strong and enforceable protections against urban runoff pollution, the largest source of pollution into the region’s rivers, creeks, and coastal waters. Unfortunately, the LA Regional Board’s new permit is a rejection of the voices of community members that have been pleading for enforceability and accountability for the region’s polluted waterways.

What was the LA Regional Board’s decision, and what does it means for clean water in LA?

The urban slobber that carries a host of toxins untreated to our inland and coastal waters, where it harms human and aquatic life alike, has long been recognized as the greatest threat to the health of the region’s waterways. That is why in 2001, the LA Regional Board adopted what was at the time possibly the nation’s most protective municipal stormwater (MS4) permit, regulating discharges from LA County, the County’s Flood Control District, and 84 cities in the region.

Unfortunately, under heavy pressure from those permittees, in 2012, the LA Regional Board offered a huge loophole in the MS4 permit renewal. While moving further towards a watershed-focused permitting structure—which we support—the 2012 permit also included a “safe harbor” provision where municipalities could be “deemed in compliance” and thus escape the threat of enforcement by merely adopting watershed management plans to reduce runoff, no matter how much pollution in their discharges. As a result, municipalities had no incentive to build projects to address polluted runoff. Not surprisingly, very few projects have been built (less than 10% progress has been made in watersheds), and water quality has stagnated, with some waterways becoming even more polluted in recent years.

“One of the most important aspects of environmental laws, including the federal Clean Water Act, is that it provides communities with the opportunity to stand in the shoes of our law enforcement officials and litigate to enforce those laws when the agencies entrusted to do so fail to act,” noted LA Waterkeeper Executive Director Bruce Reznik. “These ‘private attorney general’ provisions have been absolutely critical in stemming sewage, industrial and stormwater pollution from contaminating local communities; yet, the LA Regional Board has pulled the rug from such enforcement, and our waterways are paying the price.”

Therefore, eliminating this “deemed in compliance” language was our top priority in the current MS4 permit renewal. Unfortunately, on July 23, the LA Regional Board voted 6-1 to approve a new MS4 permit that still contains the Safe Harbors. (The only “No” vote was from Board Member James Stahl, who wanted less restrictive permit provisions for Ventura County). As adopted, the new MS4 permit will continue to allow cities and counties to escape responsibility for failing to build projects or meet water quality standards over the duration of the permit, as long as they are working toward implementing new stormwater projects in their watersheds—no matter how slow that might be.

The LA Regional Board did agree to provide more complete, timely, and transparent reporting and to bring in Ventura County under the LA permit for regional consistency, all of which we advocated for and support.

However, it was disheartening to see the LA Regional Board double-down on its “safe harbor” approach… not only because LA Waterkeeper believes it does not provide enough of a stick to ensure permittees will move as expeditiously as possible to build projects and clean up waterways, but because so many others joined us in a call for an enforceable permit. We are truly thankful to the dozens of environmental and community-based organizations and individual community members who signed onto our SMMART Water, Not Stormwater principles, testified during the 50+ hours of hearings on this permit, or even took the time to shoot videos at their local waterways (see below). Special thanks go to NRDC and Heal the Bay, our main partners in this effort.

Sadly, it is clear from the written responses to our testimony and the final decision to keep the 'safe harbors' in place that the LA Regional Board is more interested in catering to the wishes of the permittees whose pollution should be regulated instead of listening to the communities demanding clean water. This is unfortunate for an agency that claims to want to hear more from impacted communities yet largely ignored them when they did turn out.

What’s next?

After spending over 9 years advocating for a more enforceable permit, LA Waterkeeper will carefully evaluate our next actions. As a first step, the 2021 permit will be scrutinized by the LA Superior Court following the Court’s ruling that the LA Regional Board did not adequately justify the degradation of water quality that would be authorized under the safe harbors in the 2012 permit. We are exploring all remedies to address the deficient new permit, including additional legal action.

In approving the new MS4 permit, the LA Regional Board expressed trust and confidence in cities and counties to improve water quality—a trust betrayed under the 2012 permit. While we, too, are hopeful, given past performance, LA Waterkeeper believes a “trust but verify” approach would provide more meaningful results. Therefore, we will continue to pay close attention to the progress of cities and counties under the new permit, and we will continue to advocate in favor of accountability for poor water quality in LA’s most impacted communities. And we will seek to compel the LA Regional Board to be accountable to its mission to ensure the highest reasonable quality for waters in our communities.

2022 will mark the 50th anniversary of the passage of the federal Clean Water Act (CWA). Yet, despite the CWA’s promise of clean water for all, we remain maddingly far from achieving those goals. If Los Angeles residents wish to live in a city with clean water in their lifetime—or even their children’s—we need the LA Regional Board to step up and fulfill its duty to make cities accountable for stormwater pollution. LA Waterkeeper will continue our advocacy to make this a reality.