By John Heintz, Lucas Quass, and Steven Mach
On February 2, 2017, the Los Angeles Regional Water Quality Control Board (the Regional Board) approved a Revised Memorandum of Understanding (the 2017 MOU) between the City of Malibu (the City), the Regional Board, and the State Water Resources Control Board (the State Board) to extend the compliance deadlines for the Los Angeles Region Basin Plan amendment prohibiting new discharges from or construction of septic systems in the Malibu Civic Center area (the Basin Plan Prohibition). The 2017 MOU is the second amendment to an MOU initially entered in 2011[i] between the City and the Regional Board that, among other things, adjusted the timing of compliance with the Basin Plan Prohibition.
On November 5, 2009, the Regional Board passed the Basin Plan Prohibition. The Regional Board justified this controversial prohibition by citing the alleged contribution of on-site wastewater discharges to the impairment of water resources in and around Malibu’s Civic Center. The State Board approved the Regional Board-adopted Basin Plan Prohibition on September 21, 2010, and it became effective in December 2010. In addition to prohibiting the development of any new on-site wastewater disposal systems (OWDSs), the Basin Plan Prohibition requires the phasing-out of discharges from existing OWDSs in the Malibu Civic Center area by November 5, 2015 (for commercial dischargers), or by November 5, 2019 (for residential dischargers).
On July 14, 2011, the Regional Board approved an MOU between the City, the State Board and the Regional Board designed to coordinate the development of a centralized wastewater treatment plant in the Malibu Civic Center area (the Civic Center WWTF) as required by the Basin Plan Prohibition. Though the MOU did not amend the Basin Plan Prohibition itself (meaning the Basin Plan Prohibition’s discharge prohibitions remained in place), the Regional Board agreed in the MOU to exercise its discretion to not enforce its own regulations. Practically speaking, the agreement not to enforce the Basin Plan Prohibition significantly adjusted the timing of compliance with the discharge prohibitions contained in the Basin Plan Prohibition for certain affected properties. While the Basin Plan Prohibition itself only contemplated two categories of dischargers (commercial and residential), the MOU places dischargers into three phases of implementation. The City, the State Board and the Regional Board revised the MOU in 2014 to extend the compliance deadline for all three phases. The approval of the 2017 MOU, as detailed below, pushed these deadlines out even further.
2017 MOU Implementation Schedule
The Basin Plan Prohibition requires all commercial dischargers in the prohibition area to cease discharging through OWDSs by 2015. The originally signed MOU kept the 2015 prohibition date for certain commercial properties in the central Civic Center of Malibu, but placed other commercial properties throughout the prohibition area in MOU Phases Two and Three [ii] The 2017 MOU maintains the same Phase One, Two, and Three boundaries and requires properties within Phase One to connect to a central wastewater treatment facility by September 30, 2018.[iii]
In addition to Malibu Colony and Serra Retreat residences, the Phase Two area includes certain commercial properties that were previously subject to the Basin Plan Prohibition’s original discharge deadlines. Under the 2017 MOU implementation schedule, Phase Two properties must cease discharge through OWDSs and connect to a central wastewater treatment facility by November 5, 2024.[iv] The 2017 MOU extends a number of other Phase Two deadlines as follows:
- June 30, 2018, inform the Regional Board whether the City intends to connect properties in Phase Two to the Civic Center WWTF or construct an alternative facility.
- March 31, 2021, complete and certify a subsequent or supplement Environmental Impact Report, if required, pursuant to CEQA.
- June 30, 2021, complete and submit to the Regional Board a Design for Phase Two, including any alternative facility.
- November 5, 2021, complete the formation of an assessment district for Phase Two.
- June 30, 2022, complete and release a bid package for construction of Phase Two wastewater treatment facility, if necessary.
Phase Three consists of those properties in the Basin Plan Prohibition boundaries not included in either MOU Phase One or Phase Two, such as Malibu Knolls, Malibu Road, the Hughes Research Laboratory, and certain Sweetwater Mesa parcels.[v]
The 2017 MOU requires Phase Three properties to connect to a central wastewater treatment facility “if necessary” after the completion of Phases One and Two. The 2017 MOU requires the City to implement a monitoring/sampling program to determine if Phases One and Two result in meaningful decreases in water quality impairment. If based on those studies the Regional Board determines that Phase Three is necessary, the 2017 MOU requires that all nonexempt Phase Three properties cease discharges through OWDSs by November 5, 2028.[vi]
The Regional Board and the City appear committed to continuing to work together to finish construction of the Civic Center WWTF and to make progress toward meeting the Phase Two and Phase Three deadlines. We will continue to track the implementation of the 2017 MOU and monitor how it will impact our clients.
[i] The original MOU was adopted by the Regional Board on July 14, 2011 and subsequently revised by the Regional Board on December 4, 2014. We provided commentary and analysis of the original MOU in a 2011 Client Alert.
[ii] Depictions of the Phase One, Two and Three properties are available here.
[iii] Under the 2014 MOU, the Phase One deadline was June 30, 2017.
[iv] Under the 2014 MOU, the Phase Two deadline was November 5, 2022.
[v] Phase Three interestingly does not include those undeveloped properties within the Basin Plan Prohibition boundaries.
[vi] Under the 2014 MOU, the Phase Three deadline was November 5, 2025.
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