New Water Standards a Burden to South County

By Sherri M. Butterfield

This article, written by Sherri M. Butterfield, appeared as a Guest Column in the "Orange County Register" on March 3, 2002.

In doing so, board members ignored hundreds of pages of written comment and dozens of hours of oral testimony from elected representatives of these eleven cities, whose residents must now bear the brunt of the ridiculously high water quality standards this permit establishes, the draconian enforcement measures that will be required to achieve them, and the devastating price tag these measures will inevitably carry.

The need for clean water is indisputable, but the way to achieve it is by degree, not by decree. Regulatory boards should proceed cautiously and deliberately, establish consistent and uniform standards, and allow cities sufficient time to develop sound scientific methods they can apply to achieve cost-effective results.

But regional water board members have thrown caution to the wind and flushed practicability down the drain, perhaps because they have been unduly influenced by staff members who fear loss of jobs and power or by environmental groups who seek impossibly clean surf paid for and delivered by someone else.

To achieve their ends, these groups have concocted a connection between the high bacteria counts that force beach closures and the sediment found in urban runoff. In their zeal, they have convinced a certain constituency that growth must be stopped and cities, which they view as the enabling agents for that growth, must be punished.

In reality, these high bacteria counts are more often caused by sewage spills and seagull poop than by anything that runs off city streets. Previous interpreters of the federal Clean Water Act wisely recognized that the road to cleanliness was an incremental one. Earlier water quality boards required only best management practices that would control pollutants "to the maximum extent practicable."

But the State Water Resources Control Board has declined to adopt this rational approach and has, instead, insisted upon "watever else is needed." The definition of "waters of the United States" has been broadened to include not only lakes, rivers, and streams but also catch basins, gutters, and storm drains and to impose upon the latter trio the stringent standards usually reserved for recreational waterways. In essence, drainage waters must now be clean enough to swim in.

Complying with such stringent standards means that the affected cities must annually invest an estimated $29 million they don't have to hire water quality police, perform intrusive inspections, and assess stiff fines againse homeowners whose pets poop in the yard, whose cars are washed in the driveway, and whose sprinkler water inadvertently enters the gutter.

While the provisions of the permit do not specifically forbid these acts, allowing them may prevent a city from meeting the established standards, and cities whose discharged water does not meet the standards may be assessed penalties of up to $27,500 a day.

Whether cities succeed or fail, they can fall prey to third-party lawsuits filed on behalf of citizen groups by rogue attorneys who profit enormously from their predatory acts at public expense. In other words, in the water quality game, there are no limits to the effort that may be required or to the price that may be exacted. And there is no safe harbor for cities. A city may take the initiative, invest a million dollars or more in a promising approach, and be rewarded for its best efforts with penalities totaling hundreds of thousands of dollars and lawsuits totaling millions when that approach falls short of expectations.

The original paradigm for achieving clean water called for cooperation among federal, state, and local governments to make America's lakes and rivers pure by finding and fining industrial point-source polluters. This paradigm has now been bastardized to resemble something found in Lewis Carroll's Wonderland, reached only by traveling Through the Looking-Glass. Under the new paradigm, regional boards are using the Clean Water Act as a bludgeon against cities, and taxpayers have been set up to pay an absurdly high price for a rough sail in a leaky boat on uncharted waters to a topsy-turvy place where people cannot explain themselves, frantic motion bears no relationship to forward progress, and the Queen screams, "Off with her head!"