Let’s Talk: MS4 Permit & Why It’s Failing?
January 21, 2021
Santa Monica Bay. Photo: Ken Peña
Los Angeles is known for its pristine weather and beautiful beaches- yet we have some of the most polluted water bodies in the state. The Los Angeles Regional Water Quality Control Board (LA Regional Board) and the State Water Resources Control Board (State Board) are responsible for protecting surface water and groundwater quality in the Los Angeles Region. However, the very system meant to protect water quality throughout LA is the one failing to enforce water quality violations across the region. Thanks to a very relaxed Los Angeles County Municipal Separate Storm Sewer System Permit (MS4 Permit), the County’s regulatory efforts to curb urban runoff – the largest source of pollution to LA’s waterways - have largely failed.
So, what is the MS4 Permit?
In California, stormwater regulations are managed by the State Board and nine Regional Boards, with the LA Regional Board regulating discharges in LA County. Through the MS4 Permit, the Regional Boards regulate the release of polluted stormwater and dry weather runoff from city and county-owned storm drains into our waterways. The permit sets limits on the total amount of pollutants that can be released from storm drains into a body of water.
Enforcement is critical to reducing water pollution; it is how we keep polluters accountable. An MS4 Permit is an enforcement tool, a regulatory effort to address our severe pollution problem. In LA County, the first MS4 Permit was issued in 1990, and yet, the vast majority of our water bodies remain seriously polluted. It is estimated that nearly 100 million gallons of runoff water contaminated with trash, herbicides and pesticides, oils and grease, and more flows into our storm drain system every day. During a storm, the amount grossly increases to nearly 5-10 billion gallons or more.
Great! But if the MS4 Permit is meant to prevent pollution from entering our waterways, why is it failing?
The Los Angeles MS4 Permit incorporates limits (called receiving water limitations) on the amount and types of pollution that may be added to a waterbody (e.g. the maximum amount of a pollutant that a waterbody can receive and still safely meet water quality standards). In 2012 - the most recent update of the LA MS4 Permit- the limits from the previous permit were carried over. It also built on the 2001 permit’s efforts to shift towards a watershed, rather than city-by-city, approach to regulation, with an emphasis on multi-benefit stormwater projects that address pollution while greening local communities. But the 2012 permit also added a new ‘Safe Harbors’ provision. This is the provision LA Waterkeeper and Natural Resources Defense Council (NRDC) have challenged in court.
The Safe Harbor provision allowed permittees to implement Watershed Management Programs (WMPs) or Enhanced WMPs (EWMPs) as an alternative compliance pathway. The notion behind WMP and EWMP programs was to provide flexibility in how permittees could comply with the MS4 permit. If permittees wanted, they could choose to develop stormwater management plans that included things like underground stormwater capture projects,, green streets, treatment wetlands, etc. within their watershed and, if approved by the Regional Board, could be deemed in MS4 compliance. However, this created a problem. Most permittees in LA County have chosen to participate in a WMP or EWMP program, but there is no active way to measure whether these projects are making progress in curbing stormwater pollution. By merely agreeing to develop such plans, the permittees are ‘deemed in compliance’ with the receiving water limitations - no matter how badly they might be violating these limits. Without any specific, measurable goals or deadlines, permittees can use their preparation of WMPs or EWMPs to be deemed in compliance, despite not being, and avoid enforcement action from the LA Regional Board or third-party groups, like LA Waterkeeper. It became a promise to do better, with no one being able to hold them accountable.
Los Angeles River. Photo: Will Langenberg
Today, 31 years since the first issue of the LA MS4 Permit, 208 water bodies in the Los Angeles region remain polluted, putting human and ecological health at serious risk. It is clear the LA Regional Board is not adequately addressing stormwater or urban runoff thanks to this placid 2012 MS4 Permit. We want to see these deficiencies remedied and discharge regulated in Los Angeles. The Regional Board must fulfill its enforcement duties or else urban runoff and stormwater pollution will never be properly addressed in our region. We must hold permittees, the State Board, and the LA Regional Board accountable- and that’s what we are doing.
Learn about the legal and regulatory challenges that LA Waterkeeper and the Natural Resource Defense Council have pursued to correct the 2012 permit (spoilers – we won!) and the efforts of a broad-based coalition to make our 2021 permit more effective in part 2 of this blog. Keep an eye out for What is being done to make sure we have an enforceable and strong MS4 Permit?- coming soon!