As you know from the Feb 14 Westlake Revelations article (https://westlakerevelations.com/2013/02/14/cost-new-epa-regulations-estimated-4200-lvmwd-customer), the EPA has proposed new regulations that directly impact every Las Virgenes Municipal Water District customer.
Over the past couple of weeks, Westlake Revelations reached out to the EPA with a series of questions about the TMDLs (Total Maximum Daily Loads) that they are proposing, and that LVMWD estimates will cost every water district customer $4200 per family, or $41 per bill for 30 years, to implement. The questions (black), the EPA reply (maroon), and the LVMWD response/rebuttal (blue) is shown below.
What’s clear from the EPA response is that they are carefully wording answers, and often not answering the direct questions. Since this is a complex topic, we’ve given some analysis of the answer — but you may want to consider this section an opinion.
Those interested, may want to attend the Heal the Bay and Santa Monica Bay Restoration Commission meeting on March 19 (see http://www.healthebay.org/event/state-malibu-creek-watershed-public-workshop-and-discussion). Heal the Bay has posted a web page at http://www.healthebay.org/about-bay/current-issues/keeping-ocean-healthy/malibu-creek-watershed which does not address any of the issues expressed in the below questions to the EPA. Note: Heal the Bay is not an agency, but an advocate for the project — and the workshop announcement does not include EPA nor LVMWD involvement (the two public entities most directly involved).
There are five questions Westlake Revelations put to the EPA. After receiving answers directly from the EPA, Westlake Revelations asked LVMWD to respond to or rebut the answers.
Westlake Revelations Question to EPA: Apparently, the EPA adopted a similar TMDL in 2003, which cost the JPA $10 million to implement. There have been no demonstrated improvements to that TMDL despite the high cost and the issues the EPA’s regulations caused. What makes this time different?
EPA’s response (part 1):
EPA did establish a Nutrient TMDL in 2003. Under the 1999 Consent Decree, an additional TMDL must also be prepared to address sedimentation and benthic community impairments in Malibu Creek. EPA identified the primary stressors associated with the benthic community impairments and concluded that sediment and nutrients are the primary pollutant causes of the benthic impairments. Benthic organisms live at the bottom of water bodies. When benthic organisms die due to pollution, higher level organisms within the ecosystem such as fish and birds are impacted.
* The benthic macroinvertebrate TMDL at issue was not part of the 1999 Consent Decree, but was instead added on 9/1/2010 when the Consent Decree was amended.
* In their answer to Mr. Ticktin, they state that, “When benthic organisms die due to pollution, higher level organisms within the ecosystem such as fish and birds are impacted.” That’s fine as a general concept, but what Mr. Ticktin is not told is that the TMDL concludes that, “Based on evidence from the case, the linkage between toxicity and benthic macroinvertebrate impairment in Malibu Creek is incomplete.” (TMDL p. 9-17, paragraph 2). This omission is even more glaring in light of what else is said in the TMDL about this incomplete evidence (p. 9-16, paragraph 5): “The authors attribute the results to sulfate and other dissolved salts.” Malibu Creek’s unusually high sulfate and dissolved salt levels are not due to pollution, but rather its unusual geology, rich in these compounds.
* EPA’s answer to Mr. Ticktin also fails to make clear that the benthic impairment listing itself is not based on any data on benthic organisms dying off, but rather on the absence of the “right” kind of benthic organisms that would indicate a healthy, freshwater stream. But Malibu Creek is not a freshwater stream it is naturally brackish, one of the most naturally brackish coastal streams in the state. One would not expect the same benthic organisms in Malibu Creek as those found in other, less salty freshwater streams.
EPA’s response (part 2):
The 2003 nutrients TMDL is not sufficiently protective to protect the benthic community (which in turn supports other wildlife in the watershed).
* The 2003 nutrient TMDL was supposed to eliminate excessive algal growth in Malibu Creek, period. The new TMDL concludes that benthic macroinvertebrate impairments are linked to excessive algal growth, and like its predecessor proposes to regulate nutrients again – to control algal growth. We fail to see any material difference between the two TMDLs. Both conclude that excessive nutrients are the cause of excess algal growth. The only difference was that the earlier TMDL concluded this excessive algal growth impacted aquatic life in general, while this one concludes it is impacting benthic invertebrates specifically.
EPA’s response (part 3):
It is inaccurate to say that the 2003 Nutrient TMDL resulted in a $10 million implementation cost. The $10 million addressed multiple state regulatory requirements beyond the 2003 Nutrient TMDL. If you’re interested in learning about these other state requirements that led to the treatment plant upgrade, please contact the Los Angeles Regional Water Quality Control Board for more information.
* The $10M cost IS for the facilities to comply with the 2003 Nutrient TMDL. It consists of: (1) 2003 Interim Biological Nutrient Reduction Project, (2) 2007-2009 Tapia Full Biological Nutrient Reduction Project and Centrate Treatment, and (3) 2011 Centrate Line Construction Project.
Westlake Revelations Analysis:
EPA’s answer is incomplete and carefully worded. Doesn’t answer the Westlake Revelations question.
Westlake Revelations Question to EPA: The new TMDL focuses on nutrients, but basically dismisses the many other (and apparently more relevant) factors such as brackish waters? Why are these more significant items dismissed?
The 2012 Draft Malibu TMDL acknowledges and includes a discussion on brackish waters in Malibu Creek Watershed. Rather than dismissing this factor, the 2012 DRAFT TMDL proposes higher limits for those areas draining directly from the Monterey/Modelo Formation areas. This Draft TMDL directly addresses the issue of the unique nature of Malibu Creek Watershed.
* Yes, the draft TMDL does propose higher limits for those areas draining the Monterey/Modelo Formation. But limits for what? On that issue, what EPA fails to inform Mr. Ticktin is that their TMDL “directly addresses” only the nutrients coming off this rock, while ignoring the much more likely reason Malibu Creek does not have the same amounts of freshwater benthic invertebrates naturally found in other California freshwater streams: TOO MUCH SALT. Specifically, there is too much sulfate, too much magnesium, too much chloride, too much bicarbonate, and too much selenium to support the same benthic invertebrate species in the amounts found in unimpaired freshwater streams.
Westlake Revelations Analysis:
EPA didn’t answer the Westlake Revelations question.
Westlake Revelations Question to EPA: What’s the rush? There has been almost no time for public comment, city and agency feedback, etc… It’s clearly being rushed through. Why?
This TMDL is a result of a Consent Decree that has been in place for nearly 14 years. EPA has been working with the primary stakeholders, such as the cities and municipalities since early 2000. EPA has attended quarterly meetings held by the Malibu Creek Watershed Management Council to inform and update the interested and affected parties of the Draft TMDL. Additionally, EPA has held workshops for the public to better understand the draft TMDL. Also, in response to the request of the stakeholders, EPA released a Pre-Draft TMDL in September 2012 to better inform those cities and municipalities of the contents and nature of the Draft TMDL. When the Draft TMDL was proposed, a 40-day public comment period was held.
* No, this TMDL is NOT the result of “a Consent Decree that has been in place for nearly 14 years.” It is the result of a 2010 amendment to that Decree. This is a very inaccurate misrepresentation.
* Working with primary stakeholders is more than simply showing up at meetings and informing them of what EPA intends to do. This was a major issue in LVMWD Response of the TMDL process, wherein EPA did not follow its own CADDIS guidance on how to develop a TMDL with genuine stakeholder input.
* Ignoring that the “40 day public comment period” was over the Christmas holidays, the more salient fact is that two results were common across all public agencies that commented: (1) This is a highly flawed TMDL, with large gaps in its science and technical foundations and (2) This is one of the most technically challenging TMDLs ever released by EPA region 9 and 30 or even 40 days was not enough time to adequately review it in its entirety.
* In summary, EPA’s response again does not answer Mr. Ticktin’s question: What’s the rush? Nowhere does EPA’s response simply admit the obvious: a court deadline precludes time for adequate review, precludes EPA’s ability to give sufficient time for either EPA or the public to consider and address all of the unique aspects of this particular TMDL. Instead, EPA answer is basically, “we met all the legal requirements for public notice and review.”
Westlake Revelations Analysis:
The EPA is treating LVMWD much in the same way that LVMWD treated customers about the storage tank, water rate increases, and other projects. While there is some poetic justice in that, it’s still completely inappropriate. The EPA did not answer the question.
Westlake Revelations Question to EPA: The new TMDL is inconsistent with the state’s efforts that are already underway. How do you expect this to resolve?
The DRAFT TMDL is not inconsistent with the State’s ongoing efforts. EPA has paralleled the state’s effort in the development of new approaches and methods for biological objectives and nutrient development. EPA is ensuring that the final TMDL is consistent with these ongoing state efforts.
* Until EPA releases the final TMDL, we cannot comment on EPA’s response to Mr. Ticktin that it is, “ensuring that the final TMDL is consistent with these ongoing state efforts.”
* EPA has hardly “paralleled” the state’s effort in the development of new approaches and methods for biological objectives and nutrient development in this TMDL. Consider: Where the state science task force has abandoned the method used for assessing benthic invertebrate impairments in Malibu Creek (the southern California IBI index) as too flawed to use, the EPA not only fails to address this issue in the draft TMDL, it continues to use the results of that method as a line of evidence in the draft TMDL. More importantly, the state is still working on these new methods, and has neither released them for general review nor finalized them for regulatory application. In contrast, the EPA feels it is ahead of the curve relative to the state’s efforts so far that it is ready to publish its TMDL as a new regulation in the Federal Register by March 24th, as required by the court, in a lawsuit most agencies were not party to.
Westlake Revelations Analysis:
Either the EPA does not understand that they are inconsistent with the State and using what the State of California and LVMWD have basically called “flawed science” or they disagree that it’s inconsistent. Heal the Bay appears to agree with the EPA’s science (and possibly provided the research, but that’s unclear). In the end, the EPA appears to dismiss what appears to be at least a possible primary cause — and that dismissal puts all their research in the “suspect” category because it may be based on flawed assumptions. If they can show why the assumptions are true, then they would have a much stronger, scientifically correct case to make.
Westlake Revelations Question to EPA: The EPA’s regulations are going to cost LVMWD customers $4200 per family, or $41 per bill for 30 years. How would you like to present to the public the justification for what, under any definition, is a massive rate increase?
EPA doesn’t know how LVMWD calculated these cost estimates. The agency looks forward to discussing the details of this TMDL with representatives of LVMWD to ensure that they understand how the TMDL will be implemented. There are opportunities for flexible approaches to TMDL implementation, but ultimately LVMWD will be responsible for ensuring that their sewage treatment plant discharges to Malibu Creek are supportive of a healthy ecosystem.
* The cost is derived by dividing the $160M of facilities estimated in 2005 by the number of “equivalent” residential units or single-family homes in the entire service area. “Equivalent” because businesses and multi-family units are converted by a factor that counts them as single-family homes. There is additional cost for operating and maintaining the new facilities plus disposal of the brine waste.
* The Regional Board, not the EPA is responsible for implementation of the TMDL.
* If “flexible” means giving a longer time period to comply, then it ignores that ratepayers are still burdened by the same costs. It is just deferred.
Westlake Revelations Analysis:
EPA didn’t answer the question. Furthermore, in the same way that LVMWD says “we’re working with cities” or “we’re working with residents” on projects when that’s not the case — the EPA is saying that they are going to work with LVMWD, but their past “working with” was factually hollow at best (just as LVMWD has done to local cities and residents in the past).