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Friday, Feb 15 2013 10:50 AM

Cities get away with skipping out on this duty

By The Bakersfield Californian

Measure E, the 2006 ban on the land application of processed sewage, took a hit Wednesday when the 5th District Court of Appeal upheld a Tulare County Superior Court ruling that blocked its implementation.

You remember Measure E: That's Kern County's quest, supported overwhelmingly by local voters, to prevent the city of Los Angeles and other Southern California agencies and jurisdictions from foisting treated human and industrial waste -- also known as sludge or, more antiseptically, biosolids -- on land purchased in Kern County, where it poses a purported threat to the water table.

Presiding Judge Rebecca A. Wiseman ruled that, among other things, the Kern County ban was in conflict with a state constitutional principle known as the regional welfare doctrine. We see no apparent holes in that argument. (The lower court must still sort out the details, but Wiseman's decision does not bode well.)

But the direction of the debate obscures a broader, more basic issue -- that of the responsibility of cities to deal with the consequences of their own growth. When local governments approve new projects they usually require the developers to show that the surrounding infrastructure can support the growth: That the roads are adequate, the utilities are in place and sewers are connected to a municipal system or acceptable alternative. But the consequences of growth and development go well beyond making sure the area's traffic signals are up to new challenges. When cities are compelled to consider dumping their treated waste in neighboring counties they are providing evidence that they have not fully accounted for the growth they approved and oftentimes welcomed, whether over the course of recent months or many decades.

The city of Los Angeles and its allies in this effort to overturn Measure E are operating on the assumption -- an assumption apparently endorsed by the courts -- that their growth mitigation responsibilities go only as far as the wastewater treatment plant. And with undeveloped land upon which they might spread their "post-waste" waste apparently in short supply in Greater L.A., they have looked north.

But not only has L.A., et al., failed to fully mitigate the consequences of growth over time, it has infringed on the ability of Kern County to grow as it might choose. Land that has been used to spread processed sewage sludge is not suitable for many agricultural uses, and it's not suitable for development. If it does not literally spoil those acres of "waste-land" for decades to come, it comes very close.

We've yet to see definitive evidence that this processed sewage (which also contains heavy metals, industrial solvents, medical waste and pharmaceuticals) is the benign stuff that the sludge-bearers say it is. Pipelining it to the barren, uninhabited outlands of, say, southern Nevada would be, as the plaintiffs have implied, more expensive. But the present deal sticks Kern with costs of a different sort.

We know of no law, state or federal, that defines the responsibilities of cities and counties to manage and fully mitigate the consequences of the growth they choose to embrace. That has always been left to local jurisdictions. But given the imminently foreseeable nature of this particular consequence -- as the popular children's book says, "everyone poops" -- you'd think lawmakers would've gotten around to codifying this.

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