City of Malibu Hit with Surprise Litigation over Role in Ocean Pollution

• Group Alleges that Hundreds of Illegal Discharge Pipes Dot Local Hills and Beaches•

By Hans Laetz

A pair of non-profit agencies is getting ready to sue the City of Malibu for allowing water pollution to flow into the ocean, a potentially-costly lawsuit that could ultimately put a federal judge in charge of local septic tanks and storm drainage pipes.

One of the groups charges that between 500-700 illegal discharge pipes dot the hills and beaches of Malibu, each and every one of them regularly spewing washing machine discharge, dishwasher waste and other illegal contents into Santa Monica Bay

But that sweeping charge is not substantiated or documented in the formal notice that the group Santa Monica Baykeeper served Wednesday against Malibu and the County of Los Angeles. Rather, Baykeeper and the Natural Resource Defense Council claim Malibu has allowed pollution to flow into the ocean in three storm drains at Escondido Beach and at Malibu Lagoon.

The groups also complain that the city has not yet won permission to let rainwater flow into a protected section of Santa Monica Bay. But a spokeswoman for the State Water Quality Control Board said Malibu can’t be given a permit because the state has yet to write the policies on granting such permits, and won’t be finished until at least early next year.

Baykeeper and NRDC also blame Malibu for high levels of cyanide, sulfates and fecal bacteria in Malibu Creek, which drains more than 200 square miles of Ventura and Los Angeles counties and about two square miles in the City of Malibu. The local municipality is investing over $35 million in the “Legacy Park” water filtration project, designed to remove all pollutants from parking lots and streets along the Malibu Creek watershed at its southern terminus.

Well and good, said Santa Monica Baykeeper director Tracy Egosku. But only the threat of the lawsuit will get Malibu to put its money where its mouth is, and follow through on promises to raise taxes to begin aggressive policing of alleged wastewater abuses, she said.

“There are 500 to 700 pipes in the City of Malibu that are carrying water from washing machines, dishwashers and other illegal sources into the ocean,” Egosku said. “These pipes are all carrying runoff other than rainwater, and, even when it is not raining, they are flowing.”

Baykeeper joined the Natural Resource Defense Council Wednesday in serving a notice that Malibu illegally allows tainted street runoff into the ocean, that the city is responsible for the Malibu Creek pollution levels, and that the city has not accurately reported to the state its alleged inability to meet those laws.

City officials reacted with incredulity, both at the claim of at least 500 illegal pollution sources, and to the fact that the city has been actively working with state agencies and several environmental groups to solve regional pollution issues like Malibu Creek. The city is also credited by some environmental activists as having the most-proactive water pollution policies in the county.

“I sit on committees with Tracy and I am surprised she would claim that about the city,” said Mayor Jeff Jennings. “If that were happening, and Malibu residents were walking down a beach and saw something flowing out of a pipe, our phones would be ringing off the hook.”

“They may be talking steps but it is too little,” Egosku said. “These pipes are there, polluting, and the city was put on notice in 2005 and 2006 that this is not acceptable nor legal.”

The complaint notes that the city and county are prohibited from allowing any wastewater at all—including storm runoff from streets—to flow into the ocean from Latigo Canyon west past the county line, which was designated an “Area of Special Biological Significance” by the state legislature decades ago.

Although Egosku claims the State Water Quality Control Board told Malibu it was illegally allowing stormwater to drain into the bay, those letters actually told the city and county they needed to apply for permission to allow that runoff to flow into the ocean.

A spokesperson for the SWQCB in Sacramento said the stormwater runoff rules have yet to be written, making it impossible for Malibu or any other city to meet regulations that haven’t been adopted. Nevertheless, Baykeeper says the permit hasn’t been granted, so Malibu is in violation.

Jennings noted that is a catch-22 situation. “The city has been doing everything it possibly can in order to comply,” Jennings said. “And we’ve been doing it with the support and the cooperation of the Baykeeper, it’s not like they’ve been telling us there’s other stuff we need to do.”

Indeed, Baykeeper and city representatives have sat together on a task force of government and private agencies that meets monthly to plan clean water initiatives. Baykeeper representatives have participated in many of those meetings attended by a reporter, and have never voiced impatience with the city’s efforts.

A spokesperson for the Los Angeles County Department of Public Works said, “Frankly, we are disappointed the groups that have been partnering with us in our efforts to prevent stormwater pollution all of a sudden say they will sue us.” Gary Boze said, “We’ve worked side-by-side with them to come up with solutions, so this really does come to us as a surprise.”

NRDC attorney Anjali Jaiswal said part of the problem may be a failure to communicate in the form of mandatory reports. “It may well be that the City of Malibu is doing all it can, but it has not submitted the annual reports that it is required to," said Jaiswal. “It’s the results that matter, and that’s what this lawsuit focuses on, there is supposed to be clean water out there, and there isn’t.”

NRDC spokesman Daniel Hinerfeld added, “The point of this lawsuit is not to force Malibu to spend large amounts of additional money, or to enter into new treatment plans, but to state for the record what they have spent and what they hope to achieve” with existing water cleaning efforts.

“What we are hoping to do is to enter into a discussion to negotiate to get these waters clean.”

Baykeeper’s Egosku said Malibu’s extensive new septic upgrade ordinances, runoff rules and $35 million investment at Malibu Lagoon are simply too little, too late.

“Maybe the city should be given some credit for taking some steps,” she said. “But that’s just taking some dead fleas off a flea-ridden dog, and the dog is dying.”