Let’s Talk: What’s Being Done to Ensure We Have an Enforceable and Strong MS4 Permit?
February 18, 2021
In our recent blog, Let’s Talk: MS4 Permit & Why It’s Failing, we broke down what the MS4 Permit is and how it is failing to protect waterbodies in the LA region from pollution. Now that you know the basics of this regulatory tool, let’s talk about Los Angeles Waterkeeper’s efforts to ensure strong and enforceable pollution protections for the region.
If the MS4 Permit is failing, what’s being done about it?
Fearing the ‘Safe Harbor’ provisions, which allows permittees to continue polluting waterways as long as they adopt watershed management plans (discussed in a previous blog), would render the Permit ineffective and doom LA’s waters to continued toxic runoff pollution, LA Waterkeeper, and our partners went into action almost as soon as the current MS4 Permit was adopted in 2012.
Step 1 – Challenging the Permit itself
First up, LA Waterkeeper and the Natural Resources Defense Council (NRDC) filed a lawsuit against the State Water Board and the LA Regional Water Board (Regional Board) to invalidate the MS4 Permit for failing to meet its fundamental responsibility to protect the region from polluted urban runoff. We argued, among other claims, that the Permit violated specified state and federal anti-degradation requirements that mandate that permits cannot allow high-quality waters to be degraded or already impaired waters to be further degraded. On December 21, 2020, after eight years- yes, eight long years- of winding its way through regulatory challenges and lower and appellate court decisions, Superior Court Judge Beckloff agreed with our arguments and concluded that the current MS4 Permit could allow waterways in the region to become increasingly polluted with trash, bacteria, metals, and other toxic chemicals. With the ruling in our favor, we are now awaiting the court’s final order and writ – determining whether the entire permit will be invalidated or only certain provisions, like the Safe Harbors, will be removed. And, of course, there remains the risk that this positive ruling will be appealed too, further delaying a final determination nearly a decade after the permit’s initial adoption.
“With the Regional Board currently in the process of adopting a new MS4 permit for the region, we hope they take this ruling to heart and move forward with an enforceable permit that holds municipalities accountable to achieving clean water for all Angelenos.”
Step 2 – Challenging Permit Implementation
Separate from our lawsuit challenging the legitimacy of the permit itself, LA Waterkeeper and NRDC also challenged the implementation of the 2012 Permit by appealing the Regional Water Board’s approval of several watershed management plans adopted under the safe harbors provision. We argued at the State Water Board that 3 Watershed Management Programs (WMPs) and 1 Enhanced WMP (EWMP) were not sufficiently robust or protective to justify giving them the benefit of the safe harbor provision. Without specific, measurable goals or deadlines, preparation of WMPs or EWMPs becomes more of a promise to do better than an actual enforceable plan. And this time, the State Board, in a unanimous ruling, agreed with us! In November 2020, the State Board issued its final order on the LA Waterkeeper/NRDC petitions, ordering that the permittees in these watershed groups redo certain analyses or lose the benefit of the safe harbor. This ruling reinforces the idea that WMPs and EWMPs are supposed to be rigorous and scientifically robust documents supported by substantial evidence. They are intended to help permittees ultimately reach compliance or be subject to enforcement should they fail.
“This ruling reinforces the idea that WMPs and EWMPs are supposed to be rigorous and scientifically robust documents supported by substantial evidence. ”
While we appreciate and applaud the State Board’s action, the one downside to their ruling is that they are allowing the LA Regional Board to “conditionally approve” the revisions and thus allowing the WMP/EWMP groups to maintain the benefit of the safe harbor provision while any remaining issues are worked out. In other words, the Regional Board will let the dischargers identify as 'in compliance' even if the dischargers do not completely cure all the problems by the deadlines imposed by the State Board.
Step 3 – Pushing for a Better Permit
Presently, the MS4 Permit is up for renewal, and we – along with a diverse broad-based coalition - are calling on the Regional Board to create protections that close the loopholes (like the safe harbors provision) and protect public health and ensure clean water with enforceable and transparent requirements. We want to see these deficiencies remedied and contaminated discharges better regulated in Los Angeles. We are advocating for SMMART Water, Not Stormwater. The coalition of nearly three dozen environmental, environmental justice, and community-based organizations that collectively represent tens of thousands of Angelenos is pushing for a permit that is Straightforward, Measurable, Multi-Benefit, Actionable, Reinvests Back into Frontline Communities, and Transparent.
How can the public help make the MS4 Permit more enforceable?
For over 30 years, local governments have used loopholes in the MS4 Permit to get out of reducing polluted stormwater and allow ongoing pollution of our neighborhoods and beaches. The Regional Board must fulfill its enforcement duties or else urban runoff- and stormwater pollution- will never be properly addressed in our region. LA deserves strong and equitable pollution rules that protect the health of our communities and the health of our ocean, rivers, and lakes. We must hold permittees, the State Board, and the LA Regional Board accountable, assuring MS4 compliance throughout the county for the sake of our region's waterways and communities.
Share with us why you want to see a more enforceable MS4 Permit and endorse a SMMART, Not Stormwater MS4 Permit.