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Wednesday, Jan. 10, 2007 | A Carlsbad surfer has sued several local governments and two nonprofit conservation groups, claiming he contracted a potentially deadly brain infection because he was exposed to sewage while surfing.

Daniel Braff, 33, contracted brainstem encephalitis shortly after surfing at Cardiff Reef in mid-May 2005, said his attorney, Randall Winet. The condition, a life-threatening brain inflammation, has cost Braff more than $500,000 in medical expenses, Winet said, and has affected his speech, motor skills and forced him to use a wheelchair.

“The water’s not always kept clean,” Winet said, “and Dan’s been very seriously injured as a result of it.”

The lawsuit filed Dec. 15 alleges that two early 2005 sewage spills in Escondido Creek, which drains into San Elijo Lagoon and the Pacific Ocean, created harmful amounts of bacteria in the ocean when Braff surfed month later and accidentally swallowed water.

The suit contends that the San Elijo Joint Powers Authority and cities of Solana Beach and Encinitas were responsible for the spills. It alleges that the San Elijo Lagoon Conservancy and Escondido Creek Conservancy, nonprofits responsible for maintaining the preserves, negligently failed to warn swimmers of the risks they faced.

A January 2005 spill sent 280,000 gallons of partially treated sewage into the creek, resulting in a seven-day beach closure along an 8-mile stretch of beach. A late-February spill sent 73,500 gallons into the creek and closed the beach for three days. The beaches were reopened, but put under an advisory in late March because of high bacteria counts, according to a county Department of Environmental Health report.

Beaches were reopened March 31, and high bacteria levels weren’t found again until about a week after Braff surfed. The county, which has been named in the suit, samples 10 stations for water quality weekly in the area and is the local agency responsible for issuing beach closures.

Surfline.com, a popular surf forecasting website, offers this assessment of the lagoon that feeds into the break where Braff surfed: “Even the ducks swimming in this cess-pit look a bit apprehensive as they enter the water.”

The suit does not name the city of Escondido, which agreed to a $1.1 million settlement with the San Diego Regional Water Quality Control Board in part for discharging the sewage into the creek. The settlement, which is pending state review, encompassed several violations, not just the two discharges.

Proving the spills caused Braff’s illness will be a challenge, said several legal and public health experts familiar with environmental law and water pollution.

A public health expert said the connection between the spills and an illness like Braff’s is “tenuous.” Pinpointing the contraction of a disease to a specific surf break is akin to a person claiming something in the air caused their cancer, said Richard Gersberg, an environmental health professor at San Diego State University. And too much time elapsed between the spills and the illness to make a strong correlation, he said.

“I find that difficult to believe,” said Gersberg, who researches San Diego water pollution. “Typically, if something is dumped weeks or months [before], there’s virtually no way someone could come down with an infection.”

Surfer lawsuits against government and nonprofit agencies are uncommon, some said. A Hawaiian surfer filed suit after contracting an illness last year, when 48 million gallons of sewage spilled in Honolulu. But lawyers, regulators and health experts said such cases are rarely litigated and would be tough to get to juries.

Despite the sewage pollution that has plagued the region’s coastline, most high-profile local clean-water suits have targeted reform, not personal payouts. Example: The legal challenge to the waiver exempting the city of San Diego’s wastewater treatment plant at Point Loma from federal Clean Water Act standards.

“[Braff’s suit] is a potentially difficult case to bring,” said Cory Briggs, a San Diego-based environmental law attorney. “It’s why the enviros make such a big deal about (beach) postings, because we know the water is contaminated enough to make people sick, but the legal standard to prove you got an infection is a hard one. That’s why we fight to keep the water clean.”

Briggs said the case could have a positive effect: Putting a face on the illnesses that water pollution causes. But Winet, Braff’s attorney, said he did not want his client speaking to the media.

“Dan is doing a wonderful job of trying to get better,” Winet said, “but the bacteria has impacted his motor skills and functioning.”

Braff did not return a phone message; someone at his home hung up before a reporter could identify himself in follow-up phone calls.

Most defendants contacted yesterday declined comment or could not be reached. Geoffrey Smith, Escondido Creek Conservancy’s executive director, and said his organization was served with the suit Monday.

“An obvious question is: Why us?” Smith said. “For 15 years, the Escondido Creek Conservancy has been committed to preserving and maintaining the watershed to keep it clean.”

Marco Gonzalez, an Encinitas-based environment law attorney, may be retained by the nonprofit San Elijo Lagoon Conservancy, another defendant. It would put him in the position of defending the water pollution he typically fights on behalf of surfers.

“It undermines our efforts when someone comes forward somewhat opportunistically, claiming that they got sick because of dirty water when they can’t prove that’s true,” he said.

Solving water pollution problems doesn’t happen through individual lawsuits, Gonzalez said, instead pointing to the regulatory process.

“There are situations where people legitimately get sick because of the water,” he said. “When someone seeks to be compensated without being involved in the regulatory forum, it’s an insurance game. It doesn’t fix anything.”

The suit does offer some insight into the water contamination that threatens surfers’ and swimmers’ health, the regulatory efforts to clean it up and the lack of scientific understanding of some health effects of our sewage-polluted water.

San Diego County has half the sewer spills it did five years ago. But those spills make up just a fraction of risk posed to surfers and swimmers. Beaches are most commonly polluted because of rain-fueled runoff. The test used to check for bacterial indicators of harmful viruses that get washed into the ocean after rain takes two days to complete.

That’s like getting Monday’s traffic report on Wednesday, said John Robertus, executive officer of the San Diego Regional Water Quality Control Board, the local agency responsible for water regulation. A rapid test is in the pilot phase; researchers say they are hopeful it will be available soon.

“One of the challenges is the continuing concern about what’s in the sewage,” Robertus said. “This lawsuit is a cry for help to do something about it.”

Please contact Rob Davis directly with your thoughts, ideas, personal stories or tips. Or send a letter to the editor.

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