By Michael Fielding
Cast of characters
CLAIMANTS: San Diego County and its 21 cities
RESPONDENT: California Regional Water Quality Control Board, which enforces stormwater permitting that affects 7,800 square miles of surface water statewide through nine regional boards.
ADJUDICATOR: California Commission on State Mandates, which adjudicates claims of local entities seeking reimbursement for alleged state-mandated programs.
Wearing a baby blue button-down shirt with a pen poking out of the pocket, Shawn Hagerty seems too laidback to be a central figure in a philosophical dispute over a state's role in implementing federal policy. But he is.
The Southern Californian is the point man in a case pitting local governments against a state agency that's assumed the role of the EPA. Two decades after the agency began targeting the most difficult source of water pollution — storm runoff — his is one of two law firms representing public works managers who are forcing state regulators to confront the law's central dilemma: The program that's significantly reduced pollution from easily identifiable sources doesn't transfer well to diffuse, or “nonpoint,” sources. Nor is it as equitable.
Officially, Hagerty's clients want $9.1 million for expenses incurred in one year — 2007-08 — to meet the requirements of their National Pollutant Discharge Elimination System (NPDES) permit, which was renewed in 2007. Among other things, they are required under the latest permit to develop a regional urban runoff management program; created a hydromodification management plan to manage increases in runoff discharge rates from both existing and new developments, parking lots, and streets with more than 5,000 square feet of paved surface; updated best management practices (BMPs) such as bioretention cells and swales; sweep high-volume streets at least twice a month; and clean storm drains that have accumulated debris greater than 33% of design capacity “in a timely manner.”
Unofficially, Hagerty's clients want regulators to acknowledge that the permitting process doesn't advance their shared mandate to clean up stormwater to the “maximum extent practicable.”
The state argues that its role as federal enforcer doesn't extend to helping financially strapped stormwater programs afford remediation.
A state commission falls somewhere in between, agreeing to some extent with each party.
You wouldn't think this youthful attorney, who's worked on planning laws for a decade, is at the nexus of how Americans choose to fund the national effort to mitigate the consequences of treating the nation's lakes, rivers, and streams as limitless sponges. But he is.
By Dec. 31, 2012, all local governments must have a plan for keeping all pollution, regardless of source, from entering rivers and streams. By then, legislation to restore Clean Water Act protections to all waterways, not just those deemed “navigable,” may have been enacted (see sidebar on page 57).
But Hagerty doesn't seem to feel any pressure. He sits calmly in a conference room 15 stories above the city with office buildings, condo complexes, and San Diego Bay visible behind him through a massive window.
“People think it's a rainy year, but we're only at nine inches,” he says, glancing down at the city below. “There are some green roofs here in San Diego, but they have to be irrigated because of the lack of rain.”
That's the sort of misguided approach to stormwater control that his clients want to fix; and in March — almost two years after submitting their claim to a state commission that reviews complaints about unfunded mandates — they prevailed (see sidebar on page 60).
The state has said it will ask the commission to reconsider its decision.
Even if state regulators don't push the point, the legislature still must approve payment. Which means in the world's eighth-largest economy, where the state has stopped public works projects, furloughed state employees for two days a month, and closed Department of Motor Vehicle offices on selected Fridays, local stormwater agencies likely will continue picking up the tab.
“The struggles that California cities are having are those that all cities are having,” Hagerty says. “It's not sustainable to keep asking cities and counties to do all of the monitoring and funding.”Setting a national precedent
The view of San Diego from the Pacific Ocean is deceiving. The valley and the coast frame the small, clean, squat skyline. But the heart of the city hasn't been spared from the economic downturn. Two years ago 300 condominium conversions were planned. Many have been suspended.
In February, during a ride through downtown, one cabbie criticized the overdevelopment. “See that building there?” he said, pointing to one. “It's empty. So is that one across the street.”
The view was similarly bleak, although for much different reasons, more than a century ago.
In 1774 missionaries dammed the San Diego River's outlet just south of what is now Mission Bay, launching a century of dam-building across the county to create freshwater lakes and control floodwaters. By 1900, 18,000 people were drinking stormwater runoff that had been captured and treated via this system.
In 1949 the Dickey Water Pollution Act created the State Water Pollution Control Board and its nine regional boards located in each of the major California watersheds. Twenty years later California's Porter-Cologne Water Quality Control Act promulgated concepts that served as the model for the Clean Water Act of 1972 — with two major exceptions. Although California regulates all discharges to surface water and ground-water, the federal law concerns itself only with surface water.
Today, California is one of the few states that require NPDES permit applicants to address pesticides and dissolved copper, which is released as fine particles from brake pads.
Nor are state regulators likely to pull back on requirements. The state's department of finance estimates that most of the 10-million people expected to make California their home over the next 20 years will settle in Southern California, a prediction that doesn't bode well for storm-water programs. As the region's population grew over the last three decades, so did the amount of metals in stormwater: from 6% in 1971 to 34% in 2000.