City working on possible settlement in $100M lawsuit

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The City Council met in closed sessions twice last week to reportedly discuss a settlement with environmental groups Natural Resources Defense Council and Santa Monica Baykeeper, which are requesting $105 million in damages from the city for Clean Water Act violations.

By Jimy Tallal / Special to The Malibu Times

The Malibu City Council held two closed session meetings last week to discuss a possible-out-of-court settlement with Santa Monica Baykeeper and the Natural Resources Defense Council (NRDC) on a lawsuit the environmental groups filed against the city in 2008 requesting $105 million in damages for violations to the federal Clean Water Act.

The meetings took place on Tuesday and Friday, and City Attorney Christi Hogin reported after both that “no reportable action” had been taken. When asked by The Malibu Times about the nature of the talks, City Manager Jim Thorsen also demurred.

“Unfortunately, I am unable to comment on a close session item,” Thorsen said.

It is believed that in order to avoid a court case the city would pay some or all of the environmental group’s legal fees, which at this point number in the millions of dollars, and that the City Council has been meeting to discuss how much of the fees to pay.

In 2008, Santa Monica Baykeeper and NRDC filed a lawsuit against the City of Malibu in an effort to force the city to implement better pollution controls over its stormwater runoff, particularly near public beaches and the Malibu Creek and Malibu Lagoon. In August 2010, a federal district court found the city liable for violating the federal Clean Water Act for discharging polluted runoff to a coastal preserve known as an Area of Special Biological Significance (ASBS) that extends from Latigo Point to the Ventura County line.

The city has met for years with these two nonprofit organizations trying to reach some kind of settlement or to come up with a solution for managing stormwater runoff they would find acceptable, including bringing in experts and preparing written proposals.

During that time all parties have racked up huge legal fees. The city paid $131,233 for legal costs related to this lawsuit in 2008; $266,153 in 2009 and $340,168 in 2010. In August of 2011, the City Council had to make an unbudgeted appropriation of $736,916 to continue the legal battle.

When that appropriation was made, then-Mayor John Sibert said city officials had attempted to resolve the dispute through mediation with the NRDC and Baykeeper, with no success. Sibert and other council members expressed outrage at being forced to allocate major sums to the continuing litigation in the face of what they view as intransigence from the environmental groups.

“This is all money that we have to spend that should be going to clean water, and that really disgusts me,” Sibert said. “But we have to do this, because the alternative for the City of Malibu is bankruptcy, or something close to it.”

Liz Crosson, Executive Director of Santa Monica Baykeeper, said at the time that “Baykeeper and NRDC are seeking cleanup, not damages, as this is a Clean Water Act enforcement case.” She also stated that ongoing water tests conducted at Surfrider Beach and nearby areas during 2010 and 2011 still showed repeated violations of various state and federal bacterial limits.

But Sibert and other councilmembers argued the city had already shown it was progressing markedly on water quality efforts. He pointed out that the city had spent millions of dollars in recent years on clean water projects such as the stormwater treatment facilities at Paradise Cove and Legacy Park, “addressing all the things that they’re suing us about.”