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Environmental news roundup by Ry Rivard (every other Monday)
• San Diego and other California cities want Gov. Jerry Brown to make an emergency declaration pegged to El Niño that would let municipalities skirt environmental rules as they prep for storms.
• State officials and environmentalists say the city should have been doing more over the past few years to clear its storm channels.
Officials are scrambling to prepare the city for El Niño, the weather pattern that is supposed to dump massive rainfall on Southern California. Regulators believe the rains will inevitably sweep away some cars and homes, and maybe even people.
As they hustle to mitigate the damage, local, state and federal officials are also locked in another race: the one to assign blame for getting us into this mess.
City officials say the lack of preparation is because of burdensome environmental regulations.
State regulators and local environmentalists question the city’s sudden cries for help. If property is destroyed and if lives are lost, they say a good share of the blame should fall on decades’ worth of bad decisions by the city.
The city’s waterways that carry rainfall to the ocean are clogged – with vegetation mostly, but also trash. When it rains, these clogged rivers, creeks and concrete channels can’t drain the rain water fast enough, so they flood. There are 84 miles of these city-owned channels snaking through San Diego, often right next to people’s homes and offices.
The city is supposed to keep these channels clear. But last year, city crews did major clearing of just six clogged waterways. In September, the city produced a list of two dozen waterways in need of flood control maintenance and said it had no plan to do work on most of them for several more years. The city is now trying to complete about a dozen of the highest-priority projects, if it can get approval.
The city says it normally takes a year or more and as many as six different agencies to get permission to clear the channels. That’s because state and federal regulators worry about habitat destruction when waterways are cleaned.
With El Niño approaching, the city has begun getting expedited permission to clear a handful of those channels. Environmental regulators said they too want to rush the permits.
Even a small flood can be costly: The city plans to pay $1 million to a pair of homeowners near Cowles Mountain after a plugged pipe caused flooding on their block twice this year.
The city has been taking a piecemeal approach to clearing out its storm channels.
“I don’t think the city has ever come in and said, ‘Hey, we have to do 20 channels this year, give us a permit,’” said David Gibson, the head of San Diego Regional Water Quality Control Board, a state regulator.
Instead, the city asks for permission to clear three or four channels a year.
Of the six major channel clearing projects the city did in its last budget year, only three were planned. The other three were in response to an emergency. Emergencies allow the city to avoid some regulations.
Mayor Kevin Faulconer and other local mayors last week pleaded with Gov. Jerry Brown to declare an emergency because of El Niño that would allow unfettered storm channel clearing.
Gibson said the mayors are asking for a “complete suspension” of laws that protect the region’s waterways.
The city’s reliance on “emergencies” is not new.
In 2010, San Diego Superior Court Judge Timothy B. Taylor said the city was “attempting to ‘institutionalize’ an ongoing ‘emergency.’”
A year earlier, because of another El Niño, Taylor had accepted the city’s argument that it needed to do emergency storm channel work in the Tijuana River Valley. But in 2010, the city wanted to keep doing “emergency” work, even though the forecast for the next winter was unusually dry.
While a city spokesman said Taylor’s comments should not be construed to apply to other city work, city officials have blamed lawsuits like the ones that ended up in front of Taylor for their reluctance to do emergency work this winter without a clear green light from regulatory agencies.
“Doing so again could open up taxpayers to more lawsuits, fines and actually end up delaying work further,” Faulconer spokesman Matt Awbrey told City News Service in early November.
In response to comments like that, Cory Briggs, the attorney fighting the city in the 2009 and 2010 Tijuana River lawsuits, fired off an acidic email to the mayor and members of the City Council. Briggs wondered if the city was trying to have blood on its hands.
Briggs said that litigation ended years ago and the takeaway shouldn’t have been that the city can’t clean storm channels. The city just needs to follow rules and do routine maintenance, instead of waiting for emergencies to fix life-threatening problems, he said.
“It is hard to believe that the City – as incompetent as it is when it comes to things like properly maintaining its flood channels – has not learned its lesson,” Briggs wrote. “Thus, I’m left having to ask a question that is in no way intended to be rhetorical: Are you trying to get someone killed? If so, your inaction appears likely to pay off.”
Brian Bilbray, a former congressman who spent his life near the Tijuana River Valley, made a name for himself several decades ago by bulldozing part of the Tijuana River without a permit to reduce flooding in the area. People frustrated with slow work in storm channels still talk about Bilbray’s approach, which emphasized action rather than procedure.
In an interview, Bilbray said he blamed the city for poor channel maintenance, but for different reasons than Briggs.
Some of the regulations the city faces are absurd, he said: The federal government won’t allow anyone to clear a new 50-foot-wide channel to carry water out into the ocean, a measure that Bilbray said would ease flooding. As it is, Bilbray said, regulations to prevent habitat destruction are preventing work that would reduce flooding that destroys larger amounts of habitat.
The city is also in something of a catch-22: It generally isn’t allowed to clear storm channels during some dry months because birds are nesting. But then it rains and it’s too late.
Bilbray said there are no consequences for city bureaucrats when other people’s land floods.
“Nobody is going to be fired, nobody is going to be demoted, nobody is going to be hurt except the people that have to live on it,” he said.
Regulatory agencies – state and federal – are now taking some extraordinary measures to accommodate San Diego and other California cities.
Wade Eakle, the regulatory program manager at the Army Corps of Engineers’ regional office in San Francisco, said the Corps is changing what it considers an “emergency” to accommodate this year’s El Niño.
The Corps regulates work that happens in the nation’s waterways to protect threatened or endangered species. In the past, the Corps usually only authorized emergency work when the rain hit. This year, the Corps is ready to starting issuing emergency permits to projects that cause relatively minor environmental damage, even if the rain isn’t anticipated until later in the winter.
“We believe there’s still enough time for folks to get this work done if it’s needed,” Eakle said.
Some city flooding is going to happen, as it always has.
But some new development has raised the stakes for the city. Countywide, about 55,000 people live in flood-prone areas, most of them in the city of San Diego.
Gibson, the head of the Regional Water Quality Control Board, said sometimes flooding is exacerbated by land use decisions made years ago. Buildings are built in places prone to flooding. Or the new construction affected the contours of the land and waterways to make flooding more likely.
“We tend to have amnesia about the potential of these rivers to flood when we see dollar signs in front of us,” Gibson said.
One of the flood-prone hotspots in the city is Sorrento Valley. Gibson said some construction there is too close to a stream, a mistake no longer likely to be made because of newer regulations.
The city did some channel maintenance along the Sorrento Creek this year. It took nearly two years to get permission. Once it was approved, it took only 18 days to remove 285 truckloads of material from the concrete channel. That actual work cost $250,000, said Bill Harris, a spokesman for the city storm water program. But the permits and environmental mitigation cost $2 million.
Even that work may not have solved problems in a flood-prone area the city has been warned about for five years now.
In January 2010, a city-owned storm channel blocked up by overgrown vegetation flooded buildings owned by Cal-Sorrento Ltd., one of the large property owners in Sorrento Valley. The floods caused $150,000 in damage, according to the company. Ever since 2010, the company has tried to get the city to come clear the channel.
In 2012, the company even hired a consultant do a report on the city’s channel, which found that the storm channel was inadequate and clogged with vegetation.
Ironically, when the city fails to clear a storm channel and plants grow inside, it becomes harder to get a permit to clear it because of the new habitat living in it. The channels near the Cal-Sorrento property were put in to prevent flooding when the land was developed in the 1960s.
Terri Ducey, the company’s property manager and daughter of the land’s original developer, said the city told her it could not clear the channel without an emergency permit.
“People come out and look at it and nothing happens and then things flood,” she said.