Are There Two Malibus When It Comes to
Possibility of Litigation May Focus
Spotlight on Public Policy Dichotomy
This is a story of two Malibus.
The first Malibu held a fundraising party
at Bluffs Park on Sunday. Raffles and other activities gathered
funds to help complete a huge water treatment scheme at Legacy
Park; a floodwater collection, storage, treatment and
dispersal project that will top $35 million in costs. This
Malibu has enacted the toughest septic tank rules in
Southern California, and is working on several expensive,
major water treatment projects to clean up pollution hot spots
along the beaches.
The other Malibu doesn’t care. It
lets precious water shipped here at great expense from a
faraway river delta flow across its gardens and out into
gutters. It lets moss and green gunk flourish in the dozens of
PVC pipes that flow continuously out into ocean sand. The other
Malibu looks the other way as beachfront septic tanks
employ seepage pits in which the human waste rises and
falls each day as it mixes with the ocean’s tides. And it
consistently violates a state law that forbids
dumping any water, even a downspout of rainwater, into a
section of the Pacific around Point Dume and up to Point
Mugu—a stretch considered a publicly-owned “crown
jewel, an ocean Yosemite” in need of special protection.
Critics say the inescapable conclusion
is that some Malibuites exist in both worlds simultaneously.
Two weeks ago, Santa Monica Baykeeper and
the Natural Resource Defense Council gave official notice
that they intend to file a federal Clean Waters Act suit
against the City of Malibu and the County of Los Angeles.
Unless the defendants can convince
Baykeeper and NRDC differently, a federal lawsuit can be filed
in two months that could place a federal judge in charge of
rules for building and remodeling projects in Malibu and
beyond. It could also force existing property owners to obey
some new strict set of septic tank and runoff-water
As reported earlier, the legal notice was a
surprise to city council members, and some of them smelled
politics. They point to the $35 million project at what used to
be called the Chili Cook-off site, and to the cooperative and
progressive tone the city had adopted for the past five years.
At meetings of the North Santa Monica Bay
Watershed Committee, the city has routinely been praised by
stakeholders for moving first and fast on septic tanks. For
example, Heal the Bay officials praised Malibu for cooperating
in a project to use DNA to determine whether human
waste was responsible for coliform bacteria levels in
canyons that were flowing 12 months a year into fetid ponds at
“The city has been doing everything
that it can, and it has been doing this with the cooperation
and support of the Baykeeper organization,” said
Mayor Jeff Jennings when he learned of the suit.
“I think that Malibu has been one of
the most-proactive cities in the area,” added City
Manager Jim Thoreson.
The city has tightened new construction or
remodeling building permits to the point where the
routine background grumbling from local builders is again
intensifying. Regulations that new construction projects
include a way to keep all rainwater runoff on the property are
particularly vexing to some. Longtime Malibu resident and
architect Ed Niles told a civic group last week that some of
the rules are ridiculous.
“It’s been raining in Malibu
forever, and that water has been running into the ocean
forever. Now you have to come up with a way to keep it on your
lot,” he said.
In the past few years, one vacant lot near
Trancas has a permanent frog pond established, full of loud
nocturnal frogs feasting on the bugs drawn to the new
watercourse. The pond is fed by water running off from a
subdivision’s community tennis courts and lush
landscaping. Sometimes water flows into the pond at about two
gallons a minute, day and night.
The pond sits a quarter-mile uphill from
two fetid ponds by Zuma Beach, and the area’s groundwater
levels are so high that the Zuma ponds are always full of foul
water even in the middle of a historic drought.
The ponds are fed by a spring and drain
into the sand at Zuma Beach, where millions of visitor days are
spent by beachgoers.
A city enforcement officer says they have
too much on their hands to track down the tennis court’s
owners, and have no city ordinances to prohibit anyone from
overwatering to the point of creating a frog pond on someone
else’s vacant land.
Unlike some other cities, Malibu does not
specifically prohibit a homeowner from sending runoff into a
street or beach unless there is sewage in it,
“Why don’t you write a nice
letter to your neighbors and ask them to stop?” the city
officer tells an inquiring resident.
Under the columns supporting an elevated
oceanfront house on Escondido Beach last week, Baykeeper
volunteer Mark Abramson pointed at one of dozens of black
polyvinyl pipes that stick out of the rocks, just above that
morning’s high-tide line. Like many others, this one had
a large amount of moss, algae and green gunk growing in what by
all appearances is a permanent flow of urban slobber.
“You see some real interesting flows
out of those pipes,” he said. Sometimes the unmistakable
scent of Downey brand fabric softener or Tide detergent is
present, he said, but more often it’s just gunky water.
When it is tested, the urban runoff
contains a brew of viruses, germs, bacteria and nutrients to
help the vermin grow as the water flows into the sand or the
surf, depending on the tide.
Abramson points several hundred feet up the
beach. “That’s the place where they measured the
ocean water that flunked the last set of tests, and everyone
said they were surprised that Escondido flunked. Well,
we’re not surprised, look what’s flowing
Abramson and Baykeeper scientist Carlos
Carreon walked from Escondido Creek east to Latigo Bay, and
stopped at about every third or fifth house to observe outflow
from plastic pipes running into the ocean or sand, continuously
dumping green, filthy water. The Santa Monica Mountains region,
they also emphasized, is in the midst of a major drought.
“We don’t know where this water
is coming from, and we can’t go up in these houses to
find out,” Abramson said. “But the city
can, and they haven’t.
“We’ve gotten a lot of lip
service, but the city has never walked down this beach and gone
to the homeowners to say ‘you have got to stop
“If that is happening in the City of
Malibu, I’d sure like to know where,” said Vic
Peterson, the city’s chief building and planning
official. Peterson and Craig George, the city’s
wastewater expert, are part of the team recognized across the
county as aggressive leaders in fighting stormwater runoff.
Some city council members reacted similarly
when told of the Baykeeper findings.
“If they know where this is, then
they have an obligation to tell us exactly where so that we can
take steps,” said Councilmember Sharon Barovsky.
“And if there were suds flowing into a beach somewhere,
my phone should be ringing.”
But Baykeeper’s Abramson said Malibu
officials should know exactly where those pipes are. “In
2001 Baykeeper did a report documenting these drains, their
very locations, their exact locations.
“That report was hand-delivered and
widely distributed, and since then we have been talking and
talking and talking but nothing has been done about these
Baykeeper is particularly irked that the
city has done nothing about a 30-year-old state law that
prohibits cities from allowing any sort of runoff whatsoever
– even rainwater—from entering an Area of
Special Biological Significance that starts at Latigo Creek and
extends to Point Mugu.
The city has applied for an
“exception” to allow rainwater to flow into the
ASBS, which is at the state water board. But the efflux onto
Escondido Beach would not be permitted even if the city wins an
exception for stormwater, Baykeeper officials said.
The proposed lawsuit also claims that
Malibu allows too much pollution into Malibu Creek, the area
where the city hopes to remove 85 percent of the contamination
coming from within Malibu with the Legacy Park project. A
planned wastewater collection system in the Malibu Colony,
Serra Retreat and Civic Center commercial area will clean up
the rest, said council member Ken Kearsley.
But on the urban runoff issue, the two
sides seem far apart. The environmentalists say they are open
to talks with the city, but none are scheduled.
Some city council members express genuine
surprise about the muck-in-the-pipe issue, and want to work it
out. Another said the threat of a lawsuit means all avenues of
compromise are off.
“When you talk litigation to me, that
means all discussions are over,” said veteran city
council member Andy Stern.
Under a house and in the wet sand, Abramson
says at the very least the city must commit to inspect
beachfront drainage systems and prohibit anything other than
rainwater from coming out.
“Right now, unless a house has a
septic system fail and it starts to stink, the city does not
take action,” Abramson said. “This water has
sprinkler flow, fertilizer and pesticides in it for sure, and
God only knows what else, and it flows continually into a
As of this week, no talks between
representatives of the two sides are scheduled. Unless some
compromise is reached, the lawsuit can be filed in August.
Abramson said he agrees that, on one side
of the issue, Malibu has made enormous strides, with
the massive Legacy Park expenditure and new
runoff-cleansing plants going online this year at the Civic
Center, Marie Canyon and Paradise Cove.
“But down here in the sand is where
the rubber meets the road, and we haven’t seen any
progress in 15 years,” the Corral Canyon resident said.
“That’s what this suit is all