Environmental groups trying to protect Malibu's Surfrider beach have been embroiled in a federal lawsuit against L.A. County for more than two years, trying to prove that the county is responsible for contaminating the waters with sewage and violating permits related to the Clean Water Act.
But getting the courts to find fault with the county has been, proverbially speaking, like trying to nail Jello to a wall.
After initially ruling that L.A. County did violate provisions of a permit, the court recently reversed its decision to favor the county.
The rub, however, as far as the environmental groups are concerned, is that the reason that the court reversed its decision was because the county filed and won a separate lawsuit in state court that changed the language of the permit so that the permit no longer applied and therefore the county could not be at fault.
“Unfortunately,” said David Beckman of the NRDC, one of the environmental groups suing the county, “this demonstrates the lengths that the county is going to in order to avoid responsibility for cleaning up local beaches, which is unfortunate.”
In the original lawsuit filed by NRDC and the Santa Monica Baykeeper, the environmental groups sued the county for violating a Clean Water Act permit issued by California's Regional Water Quality Control Board relating to bacteria pollution at Surfrider beach.
Based on the language in the permit, the court dismissed the county's claims that there were other potential sources of bacteria at Surfrider and that there was no direct evidence that the county contributed to the bacteria pollution because none of the county's storm drains discharged straight onto the beach.
It appeared, for a while, that the environmental groups had prevailed.
But the county kept fighting. Beckman says the county sued the regional water quality board to have portions of the permit overturned because the board did not follow proper procedure when it put together the permit.
“So,” says Beckman, “based on a procedural defect and not a substantive defect, it had nothing to do with the merits of the level of bacteria or the need to reduce bacteria, but rather how the hearing was held, the piece of the permit we were enforcing was taken out. And, based on that, the federal court reversed its initial ruling in our favor.”
In other words, while the environmental groups were trying to enforce a permit that applied to the county to keep the beaches clean, the county sought to rewrite the permit though a technicality that the environmental groups were trying to enforce.
But wait, it doesn't stop there.
Yesterday, says Beckman, the regional water board issued a draft proposal to reinstate the portion of the permit that the county got overturned via the procedural error and will have a hearing on the change in April.
If the permit reverts to the earlier draft, under which the environmental groups had originally sued, then they will ask the federal court to go back once again and reverse their latest reversal, meaning the environmental groups would once again seem to prevail.
“The county is trying to change how the law applies to them,” says Beckman. “This really demonstrates the complicated nature of trying to enforce environmental law.”