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40 Years Later: Are Our Environmental Laws Still Appropriate?

40 Years Later: Are Our Environmental Laws Still Appropriate?

Many of the nation’s toughest environmental laws were passed in the late 1960’s and early 1970’s when it seems the American people first realized that there could be a limit to the natural resources at our disposal.  Congress took action, passing a litany of environmental regulations that were signed into law with bipartisan support.  After more than 40 years of progress, it is increasingly clear that fully implementing many of these landmark environmental laws will require tough decisions about the costs and benefits involved.

The Clean Water Act and the requirements it imposes on the Los Angeles River provide an excellent example of this dynamic.  Bringing the urban, largely channelized body of water into compliance with the act’s goals will take an enormous investment of resources, time and effort. It will require efforts across jurisdictional boundaries and will require every individual within the Los Angeles River watershed to take responsibility for their impacts on water quality in the River.  Not surprisingly, this level of investment raises questions about whether the goals set for the water body are attainable or even appropriate.

One of the Clean Water Act’s primary requirements is that U.S. states designate “Water Quality Standards” for every navigable water within their boundaries.  These standards serve two main functions: allow for the assessment of water quality and provide a basis for determining what effluent discharge limitations may be allowed in order to protect the designated uses of the water body.

The Clean Water Act required water quality standards to be adopted shortly after passage of the act.  This means that many of the designations were adopted at a time when the desire to achieve meaningful water quality improvements in each and every water body in the nation was driven by a national ethos of emergency.  The book Silent Spring, which examined the effects of DDT, was only 10 years old, and the 1969 fire on the Cuyahoga River was fresh in the collective memory. States adopted narrative and numeric standards for all water bodies within their jurisdiction, including those that were completely channelized and barely resembled free-flowing streams.

The first standards under the Clean Water Act were adopted for the Los Angeles River Basin in 1975. The most recent version of the basin plan designated full body contact recreation and commercial fishing as existing or potential uses for the Los Angeles River. While these designations meet the goals of the Clean Water Act, they are far from a reflection of current “on the ground” conditions.

Over 50 miles long, the Los Angeles River flows from the mountains above the suburbs of the San Fernando Valley to the ocean in Long Beach. Along the way, the river passes through 14 cities and numerous, diverse neighborhoods. Originally, the river meandered through wetlands, marshes, willow, alder, and sycamore.  In the late 1930s, the Army Corps of Engineers initiated flood control projects and lined 80 percent of the river with concrete. Ironically, what was then considered progress, allowing much of the Los Angeles basin to be settled without risk of flood, is now viewed as degradation.

These changes to the structure of the river, and its use since the 1930’s as a regional storm drain, have made compliance with the water quality standards extremely difficult.  Nonetheless, the Clean Water Act mandates that California, through the Los Angeles Regional Water Quality Control Board, develop and implement limitations on the amount of pollutants that can be discharged into the river so that the river ultimately meets the full body contact recreation standard.  These limits are known as total maximum daily loads (TMDLs) and under  the Clean Water Act, any entities that discharge into the river comply with all limitations necessary to achieve those targets.  The allocation of resources required to achieve those goals has led to questions about the propriety of the designations and  spawned litigation over whether the Clean Water Act applies, and, if so, who is responsible for compliance.

In July, 2010, the Los Angeles Regional Water Quality Control Board finally completed its work on a bacteria TMDL for the Los Angeles River.  The TMDL was controversial for a number of reasons.  Foremost was the fact that it is based on the full body contact recreation standard.  Entities who discharge into the Los Angeles River watershed argued vehemently that vast portions of the river are channelized, closed to public access, and thus unlikely to be used for full body contact recreation.  As such, they claimed, imposing the high full body contact recreation standard simply did not make sense and that the estimated $5.4 billion price tag for compliance was simply too high to impose on municipalities and other dischargers given the benefits to be gained.

Second, the dischargers argued that compliance was simply not feasible.  The largest source of bacteria pollution for the Los Angeles River is storm water and dry weather flows directed off of city streets and into the river.  The bacteria are present in discharges from individual properties to the municipal storm drain system and thrive once they enter the system.  All of these flows reach the river at some point because it is the low point that drains water off of the land and into the ocean.  Thus, the river’s role as a regional flood channel is in many ways the cause of its inability to meet a full body contact standard.  This ongoing use is also one of the reasons the estimated price tag for meeting compliance is so high.

The Los Angeles River illustrates the tension between compliance with environmental goals and the costs and benefits associated with meeting those goals. What had been considered progress has changed the character of the river to the extent that attaining a “fishable swimmable” water quality in many stretches is not feasible, or at the very least will cost billions of dollars.  Nonetheless, the Clean Water Act requires that this work take place. Because cities are ultimately liable for paying for the compliance, dedicating funds to this effort will mean an increase in taxes and fees or a decrease in services.

Andre Monette is an associate in the Environmental Law & Natural Resources Practice Group of Best Best & Krieger LLP. Monette works with both public and private clients in matters involving water quality, water rights, wetlands, and state and federal hazardous and solid waste issues. He also works extensively with water districts, cities, counties, and school districts on matters involving the Federal Clean Water Act and California’s Porter Cologne Water Quality Control Act. Monette may be reached at Andre.Monette@bbklaw.com

 

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