Sue to Save Aliso Creek?

Efforts to pinpoint the cause of one of Orange County’s toughest pollution problems--high bacteria levels in Aliso Creek--have been fruitless so far: Inspections, tests and even videotaping of nearby sewage lines to find leaks have offered no clues.

Frustrated by the lack of progress from these efforts and two costly studies, some environmentalists say the next step should be a lawsuit. Backed by stepped-up federal regulations, activists are eyeing legal remedies to force cities upstream to control the urban runoff that is soiling the creek’s water.

“We don’t have any other recourse,” said Roger Butow, founder of the Clean Aliso Creek Assn. “Litigation is a tool to get people to come to the table. We will [sue] all the upstream neighbors, especially Laguna Niguel. They’ve had enough time to figure out what they’re doing.”

But coastal cities and other environmentalists are biding their time, contending an amicable approach will be more productive than launching a legal battle.

Runoff is the bacteria, trash and chemicals that wash from lawns and streets into storm drains and then into streams--and eventually the ocean. The federal Clean Water Act bars any pollution discharge that fouls waterways.

“If you have polluted waterways or waters, that means someone isn’t doing what they’re supposed to be doing,” said David Beckman, an attorney with the Natural Resources Defense Council.

Aliso Creek drains over 34 square miles of Orange County from the Santa Ana Mountains to the Pacific Ocean. A channel near a Laguna Niguel neighborhood sends at least 100,000 gallons of urban runoff a day into the creek, according to a city official, though environmentalists claim it spews 600,000 to a million gallons per day. In October 1998, fecal coliform bacteria levels there were 225 times the amount considered safe for swimming.

Ken Montgomery, Laguna Niguel’s public works director, said the city is already taking steps to reduce the polluted runoff. Half has been diverted into a wetlands area that acts as a natural filter since September, tests are ongoing, and the city and the Moulton Niguel Water District are discussing sending runoff to a sewage treatment plant.

“We don’t look at that [area] as any different than any in South County--there’s no pig farm or smelting plant. Something’s going on there that we haven’t figured out,” he said. “We’ll solve the problem. Having a cease-and-desist order and lawsuits would just take away from the effort.”

Laguna Beach City Manager Kenneth C. Frank agreed: “All I can say is that we’re not in the mode to go around suing people. If the environmental groups want to, they can go ahead.”

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Litigation of runoff polluters has increased across the country since the U.S. Environmental Protection Agency enhanced storm water pollution regulations in 1990.

Only in the last decade have there been policies about urban runoff that “elevate it to the same level of concern as smoke, air pollution, waste water,” said Donald Duke, a professor of environmental science and engineering at UCLA.

Cities, counties, developers and others must receive storm water discharge permits from the state’s regional water quality control boards. These permits require tracking and reducing polluted runoff, and allow citizens to sue in federal court if conditions are not met, said Kurt Berchtold, an assistant executive officer for the Santa Ana Regional Water Quality Control Board, which issued part of Orange County’s permits.

“It’s a lot easier [to sue] if there’s a permit in place,” said Steve Fleischli, executive director of the Santa Monica BayKeeper. Otherwise, “you have to have much more creative legal theory.”

The permit system was phased in, first only affecting large cities and 11 industries. State permitting boards were allowed to broaden this scope, which happened in Orange County. All of the county and its cities received five-year permits in 1996, Berchtold said.

The second phase of the program is just beginning. It encompasses smaller cities in urbanized areas and smaller construction sites.

“If the past is any prologue, then I think you will see additional litigation” in coming years, Beckman said.

He should know--Beckman was one of the attorneys who reached a settlement over urban runoff with Los Angeles County in 1996.

The settlement--which included stepping up monitoring and public education, creating treatment rules for some runoff from new developments, and starting a $629,000, three-year study on runoff’s effects on marine life--capped a string of lawsuits by the Natural Resources Defense Council and the Santa Monica BayKeeper against the county, several cities, the Port of Long Beach and the California Department of Transportation.

Similar lawsuits have occurred across the country, including in San Diego and Boston.

But in the Aliso Creek case, environmentalists are divided. Butow has essentially declared war on Laguna Niguel. But groups such as the Orange County Coast Keeper and the South Laguna Civic Assn. have a more amicable attitude, but concede they’re preparing in case their friendly tack doesn’t work.

“We’re doing research to find out what’s gone on in the past--how long some of these problems have gone on without improvement,” said Garry Brown of the Coast Keeper. “If we can get everybody to work these problems out and make progress, we’d like to avoid [a lawsuit]. If, in time, that doesn’t happen, at least we’ve done our homework and we’ll be prepared to go that way.”