The Water Report: Water Rights, Water Quality and Water Solutions in the West Issue 17

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Issue #17 The Water Report Urban Stormwater Estimated Costs Mixed Message Regional Differences LA & MEP MEP Subordinated Professors at the University of Southern California (USC) attempted to fill the economics void by evaluating the costs of rendering urban runoff in compliance with water quality standards on a region - wide basis. Their study found that advanced treatment of storm flows likely would be required. The principal study case contemplates building plants to capture and treat a large percentage of regional stormwater to most of the standards. Such an undertaking was estimated to include capital costs ranging from $43.7 billion (treating flows from about 70% of the historical average annual storm events) to $283.9 billion (for 97% of the expected storm flows). Long -term operating costs would add to the bill. Over 20 years, the present value cost to the small city of El Monte (population 115,965) would range from $399 million to $2.56 billion; $492 million to $3.17 billion for Inglewood (population 112,580); $737 million to $4.66 billion for Pasadena (population 133,936); $321 million to $2.2 billion for Pomona (population 149,473); and $1.2 billion to $7.7 billion for Torrance (population 137,946). The 20 -year present value cost to each L.A. County household for these Stormwater facilities ranges from about $6,670 to treat 70% of storms, to $41,760 to treat 97% of storms.(12) These engineering estimates approach the staggering and clearly put such facilities beyond the present financial capability of local government. The regulators, meanwhile, continue to deliver a mixed message. One the one hand they insist such capture and treat facilities will never be required. On the other, they insist their goal is to render urban runoff compliant with CWA standards. Regulators have not stepped forward with an alternative approach that holds any reasonable assurance of reaching such compliance in any meaningful timeframe. MS4 PERMITTING APPROACHES IN SOUTHERN CALIFORNIA As will be described below, the San Diego regional board purposefully subordinated the MEP -based approach (i.e, controlling urban runoff through practicable BMPs) to overarching permit requirements based on water quality standards. However, it should be recognized that other regional boards are following a different course with respect to the federal MEP standard. For example, the currently operative MS4 permit for central Orange County (issued in 2002) states in pertinent part: "The purpose of this Order is to require the implementation of best management practices to reduce, to the niaxinnan extent practicable, the discharge of pollutants from the MS4 in order to support reasonable further progress towards attainment of water quality objectives. "(13) The Los Angeles permit also appears to employ this prudent approach, stating in pertinent part: "This permit is intended to develop, achieve, and implement a timely, comprehensive, cost - effective storm water pollution control program to reduce the discharge of pollutants in storm water to the Maximum Extent Practicable (MEP) from the permitted areas in the County of Los Angeles to the waters of the U.S. "(14) However, the Los Angeles regional board has refused to acknowledge a "safe harbor" (i.e., protection from enforcement actions and third -party law suits) based on MEP efforts. Also, the board has not clarified the role of water quality standards provisions in its permit. In contrast, San Diego's approach explicitly disables MEP as a substantive standard. During the judicial challenge to San Diego's permit, Carol Squire, lead agency counsel, drove this point home: THE HEARING TRANSCRIPT READS (IN PART): JUSTICE HALLER: Can you, under this permit, sanction them for their failure to meet ... the water quality standard, even though every scientist in the world says it's impossible to meet that? CAROL SQUIRE: [T]here is a provision in the permit that says the Regional Board retains its authority to enforce if it so chooses. JUSTICE HALLER: So that means that even if every scientist in the world says there is no way to meet this standard, the permittees can be sanctioned? CAROL SQUIRE: Theoretically yes.... JUSTICE HALLER: [W]e want an answer to the question: Do you have the authority under this permit to sanction someone to meet a water quality standard that from a technology standpoint they cannot meet? CAROL SQUIRE:... [T]he answer is yes. . The San Diego permit is a five -year NPDES permit for urban runoff covering the County of San Diego, eighteen cities in the San Diego region, and the Port of San Diego. It also covers various non- municipal urban sources, including: runoff from all major new development; runoff from existing homes; and runoff from commercial and industrial sources.(15) MS4 permits are issued for all other major 4 Copyright© 2005 Envirotech Publications; Reproduction without permission strictly prohibited.