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By Charles Lam
Photo by Keith MayA state bill that would have stopped regulators from punishing polluters originated in an advisory group founded by county Supervisor Tom Wilson to improve beach-water quality.
But the legislation sparked such an uproar that Wilson, environmental groups that belong to his Orange County Coastal Coalition and the Newport Beach city official who formally requested the bill all now say it's flawed.
"We did not expect negative publicity," said Dave Kiff, the Newport Beach deputy city manager who asked state Senator Ross Johnson (R-Irvine) to draft the legislation. "We missed on this one."
Johnson's original Senate Bill 816 would have amended the state water code to strip the state's regional water-quality control officials of the power to issue the cease-and-desist orders that force polluters to clean up creeks, channels and beaches. Once detected, pollution would have been allowed to continue flowing for up to three years before violators would have had to clean up their messes.
Now that everyone is running away from the legislation, Johnson was forced to issue a backtracking statement on March 29.
"We are not seeking to weaken existing law in any way," he stated. "We are merely trying to encourage a cooperative problem-solving approach rather than a needlessly confrontational atmosphere. If we can't reach consensus on this entirely reasonable concept, I'll drop the bill."
How was this turkey hatched?
Wilson's Coastal Coalition is composed of builders, bureaucrats, elected officials, water-district representatives and—this was key—environmentalists. The U.S. Department of Fish and Game, the California Department of Recreation, and water-quality regulators from the San Diego and Santa Ana regions have also sent representatives.
The idea for the bill came from the coalition's legislative committee, which includes a representative from the Surfrider Foundation's national office in San Clemente. Besides Surfrider—an international, nonprofit, environmental organization dedicated to protecting oceans, waves and beaches—and four local Surfrider chapters, the coalition includes a representative from Orange County CoastKeeper, a regional, nonprofit, environmental group.
When other South County environmental activists read SB 816, they denounced it. Clean Water Now! chairman Roger von Butow wondered how such environmentally harmful legislation could have escaped the notice of Surfrider and CoastKeeper.
It didn't, according to Christopher Evans, Surfrider's executive director. When the exact language of the bill was revealed, Surfrider legal director Michelle Kremer and CoastKeeper executive director Garry Brown immediately cried foul, Evans claimed.
"When we saw the language of the drafted legislation, that's when everyone went, 'Whoa! Stop! We need a rewrite on this,'" Kremer said.
"We don't want to tie their hands," Evans said of state regulators. "Cease-and-desist laws are tough love but good things."
Evans and Kremer maintain that while Surfrider representatives were present at the Coastal Coalition meetings, no one mentioned anything about stripping state regulators of enforcement powers. The law was supposed to protect cities from being fined on the basis of information that emerged from their voluntary participation in water-pollution studies.
But critics say the law would have allowed any city to avoid environmental prosecution by hiding behind a water study.
"The conversation we had prior to the language being drafted spoke to the intent of the bill: they did not want to punish cities, counties and water agencies for participating in watershed studies," Kremer said. "They did not want to fine or deter people from participating in testing. We need testing to find the problem and get a solution. Why would they be participating in a study if they can be fined or have a cease-and-desist order?"
Earlier this year, for example, the San Diego Regional Water Quality Control board threatened to fine Laguna Niguel for pollution flowing out of a storm-drain pipe that dumps into Aliso Creek. That pollution was detected in the course of a regional watershed study.
Newport Beach is involved in similar studies, and officials there fear they could end up like Laguna Niguel. "They could use our information to hit us," deputy city manager Kiff said. "And my fellow city-management types who are involved in these watershed studies say, 'Maybe we do not want to find problems.'"
Kiff, Kremer and Wilson's chief of staff Holly Veale maintain that after the bill request went through Johnson's legal staff, the language was changed to essentially gut state regulators' enforcement powers.
"We learned a valuable lesson from this: don't leave things up to legal counsel in Sacramento," Veale said.
Coalition members have been meeting with Johnson's staff to figure out how to proceed. Options include killing the bill, pulling it for a year of rewriting, or amending the current language to simply encourage state regulators to work with cities.
"We've got to be more careful," Evans said of Surfrider's presence on a Coastal Coalition that could okay such a law. He agreed the incident might cast a shadow over environmental groups that work with developers and lawmakers, but added that it was likely their presence that stopped a bad law from being passed.
"Half the time, we'd probably never get in the same room with some of these people," Evans said. "We've had an influence on the county, state and federal legislative platform. We get to remind decision makers that when they talk about an issue, they'd better have a holistic, sustainable answer. I'd pay money to be able to do that with decision makers. If a building-industry representative is in the room, I'd like to be there, too."