The Regional Water Quality Control Board on Thursday unanimously approved a deal with the city of Malibu and the State Water Resources Control Board to modify the septic system ban approved by the Regional Water board in 2009.
The regional board “tweaked” the agreement to require the city of Malibu to study storage infrastructure. Malibu also will be asked to monitor water quality in the Malibu Road area earlier than July 2014, the original start date.
The monitoring will last for two years and three locations will be identified along the road for testing, according to the agreement.
Despite the unanimous approval, regional board members characterized the Memorandum of Understanding with Malibu as a “leap of faith.”
“My concern is that if we don’t do this, this may go on for years,” said Regional Board chair Francine Diamond.
A tolling agreement allows the two parties to evaluate direction and goals on an ongoing process but either side can suspend their commitments at any time. Diamond added that if the MOU is not complied with, the regional board will exercise its full disciplinary force.
“We are going to be the hammer, make no mistake about it,” Diamond said. “I want to go forward and see if that leap of faith is rewarded.”
The most significant feature of the MOU is that it adjusts the number of phases for compliance with the ban from two to three.
For the first phase, most Civic Center area businesses would have to get rid of septic systems and hook up to a sewer system by 2015. Those located in the second phase would have to comply by 2019.
The remaining properties in the prohibition zone would have to comply by 2025. But this third phase will only go into effect if testing determines the first and second phases reduced the levels of bacteria and nitrogen pollution in the Malibu Lagoon.
For that reason, phase 3 may never go into effect. Even if the third phase were given the OK, city and Regional Water officials could determine some properties do not need to comply if officials have "demonstrated [the properties] have no contribution to bacteria or nutrient impacts to Malibu Creek and Malibu Lagoon," the agreement states.
The third phase of the agreement concerns environmental leaders, who say property owners will later not be required to connect to central treatment systems or upgrade systems at all.
“(Malibu) can pull out at any point if they don’t like what’s going on,” said Liz Crossen, executive director of Santa Monica Baykeeper. “That is not good faith negotiation.”
The regional board received 27 comments in the 10-day window open to public input, two of which had legal concerns. Half favored the MOU and half were against it.
Regional Water Chair Sam Unger responded directly to written public comments during his opening presentation to the board. Heal the Bay wrote that it did not oppose the agreement but wanted the MOU to be strengthened in two areas — that assessment districts be considered earlier, and for Malibu to be required to build its own sewer system if the assessment districts fails.
Unger said the current schedule allows Malibu to develop the most reliable cost estimate possible. He also said the latter request would remove enforcement authority from the board.
The most consistent criticism of the MOU by proponents of the original septic ban was on a lack of accountability on the part of Malibu. Heal the Bay president Mark Gold said that despite assertions that the city has changed its attitude, there will be different councilmembers 15 years down the road.
“There are term limits in Malibu,” Gold said.
Councilmember Jefferson “Zuma Jay” Wagner, however, spoke to a changing political culture in Malibu, saying that people are more responsive than ever before to the need for a centralized wastewater treatment system. The septic issue is a for the city.
Regional board member Madelyn Glickfield, a Malibu resident, said she agreed with environmentalists that the agreement is weak on accountability.
"You can get out, we can get out," Glickfield said.
She also questioned a clause allowing property owners to modify systems during Phase 3, saying it appeared to allow increased capacity in septic systems. This would directly violate the septic ban, she said.
Sam Unger clarified that any expansion of septic systems would have to be advanced treatment. City Attorney Christi Hogin also responded that the MOU is intended to be an implementation of the ban, not an amendment.
Others, however, argued that the MOU illegally amends the septic ban. The adding of phases and new deadlines changes the compliance requirements, said Liz Crossen, executive director of Santa Monica Baykeeper.
Lucille Keller of the Malibu Township Council also approached the board to reiterate the argument of opponents of the original ban that no documentation exists to prove that residential systems cause water pollution. Diamond, however, said the meeting needed to stay focused on the MOU, not the septic ban already in effect.
“While not perfect, the MOU as drafted is the best way to keep everybody on track,” said Connie James, president of the Malibu Knolls Property Owners’ Association.
Proponents of the MOU applauded the ability for city members and the Regional Board to come to an understanding.
“What these people should do is get together and buy the Dodgers, because they can fix anything,” said developer Steven Soboroff, drawing laughter.
Regional Board members requested that Malibu send representatives on a regular basis to check on developments related to the deal.
The agreement now heads to the state water board for approval.