A New Beachhead for Water Quality

Lawsuit over Santa Monica Bay is latest volley in effort to hold EPA accountable.

A quarter-mile offshore from the most crowded beaches in the United States, the view from a bobbing speedboat tells the whole story.

To the right, orange buoys warn of bottom sludge containing DDT, lead, and other metals - sludge too hazardous to be safely dredged. To the left, alongside the white sand where sunbathers loll, four storm drains jut out of the ground, aimed like bazookas into the breaking surf of Santa Monica Bay. Behind them, still more ominous silhouettes: two power plants, one sewage-treatment facility, and a Chevron oil refinery.

"It's been 25 years since the US Environmental Protection Agency was entrusted with making these waters swimmable and fishable," says David Beckman, chief counsel for the Natural Resources Defense Council (NRDC). But because of plants, storm drains, and other sources of pollutants, the bay is one of more than 150 bodies of water in southern California that the EPA acknowledges exceed safe levels for pollution.

Congress enacted the Clean Water Act in 1972, mandating that the EPA safeguard America's bodies of water from such pollutants. "We say it's high time they lived up to that promise," says Mr. Beckman.

Three environmental organizations are considering filing a lawsuit that would force EPA to clean up Santa Monica Bay and the other bodies of water in southern California that exceed safe pollution levels. The suit was scheduled to be filed today. But last-minute negotiations were under way to see if the legal action could be forestalled. If the suit goes forward, it would represent one of the largest legal actions ever taken against the EPA to protect American waterways.

"Either through these negotiations or lawsuit, the EPA will be forced to do what the law says it must do," says Beckman. "They have no other choice."

More lawsuits

The lawsuit is the latest in about a dozen such legal efforts, that have been gaining momentum during the past seven years. The NRDC has been a part of other suits as well - in states such as New York, Minnesota, Illinois, and Louisiana. Last month, four Tennessee environmental groups announced their intentions of forcing state officials to adopt a program to identify and clean up the state's most polluted waters.

The suits deal with the second of a two-pronged approach that was set up by the Clean Water Act. First, the act imposed formal limits on how much pollution a discharger may send into lakes, rivers, streams, and oceans. Second, it assesses how clean such waters actually are.

Every body of water that remains polluted, or "impaired," is then subject to the so-called TMDL program. Standing for "total maximum daily load," the specifications define allowable limits for each of a long list of pollutants - such as lead - that can be discharged into water. The amount they can discharge depends on that body of water's intended use: from drinking to swimming or fishing.

"The first half of the Clean Water Act has been implemented and we have made much progress," says Mark Gold, executive director of Heal the Bay, one of three plaintiffs in the suit.

Indeed, in a report released two weeks ago, the Santa Monica Bay Restoration Project notes that the number of beach closings has dropped dramatically in recent years, and the amount of many heavy-metal pollutants has declined by 67 to 99 percent despite a 25 percent increase in population.

But the progress is mostly in what is known as "point source" pollution - pollution put out by specific industries. The larger pollution culprit these days, however, is urban runoff, the collection of oil, grease, toxic chemicals, and metallic wastes washed from the nation's streets and highways down storm drains.

Those substances need to be assessed and held to approvable levels, says Mr. Gold. "But not a single TMDL has been established in the waters of the Los Angeles region," he says. "For 20 years, the EPA has done nothing but rubber-stamp the state's inaction."

The EPA acknowledges the increase of such suits, and that various regional offices are attempting to develop new TMDL standards. But it will not comment on any ongoing litigation.

"There has been a marked increase in these kinds of lawsuits in recent years," says Tanya Meekins, spokeswoman for the US EPA in Washington. "But it is not our policy to comment on the specifics of any case or the EPA's tactics in dealing with them."

Though responsibility for the programs here rests with state agencies like the California Water Resource Control Board, the EPA is recognized as the agency ultimately responsible for the effort nationwide.

"Environmental groups frequently oversimplify what is involved in establishing these guidelines," says Dave Smith, spokesman for the regional EPA office in San Francisco. Partly because of changes in White House administrations over the course of the Clean Water Act, and partly because of varying commitments by different administrations, the implementation of TMDL has been stalled, Smith says.

"Some of these pollutants weren't even around when the law was written ... and that takes time to assess," he adds.

A boost for the act

President Clinton and Vice President Al Gore tried to give the Clean Water Act a boost in February with the Clean Water Action Program, but Congress has not appropriated sufficient funding.

Meanwhile, the lists of "impaired" water bodies continues to grow with official acknowledgement of the EPA. Some 50 percent of the identified polluted waters in California are in the Los Angeles area.

And states are increasingly getting the message that environmental groups mean business about TMDL, says Dennis Dickerson, director of the Los Angeles region of the California Regional Water Quality Control Board's division of water quality. "We are hoping to come up with some sort of resolution to this out of court, if possible."

Until that happens, say environmentalists, there is no way of ensuring that the discharge limits imposed in the Clean Water Act will leave waters clean enough for human contact.

"The first phase of [the Clean Water Act], has been worthwhile," says Terry Tamminen, Santa Monica Baykeeper. "That's why we know this can work if done right."