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San Diego and surrounding cities will save over $1 billion by continuing to allow pollution in Chollas Creek, one of the region’s most polluted waterways, rather than cleaning it up as the cities had previously been ordered to do.
That will allow thousands of pounds of zinc and copper to continue flowing into the creek, but soon those materials will be considered officially less harmful than they were a decade ago.
For years, the San Diego Regional Water Quality Control Board has tried to make the cities clean up the creek, which starts in La Mesa and Lemon Grove and runs through the heart of San Diego.
But on Wednesday, the board is set to roll back some of its cleanup requirements, which it now says were ill-informed.
The amount of metals in Chollas Creek can now remain largely the same, but after years of bureaucratic exercises, a bunch of public agencies will clear a major liability off their books.
There are other efforts under way to rid the creek of trash, pesticides and bacteria, but a serious attempt to clean up metals would have been by far the most extensive of these efforts.
This expensive work, which cities could have been doing for the past eight years, would have helped with other problems and perhaps brought the creek close to the ideals of the federal Clean Water Act: to make every waterway in America fishable and swimmable. Instead, the creek remains an ugly and undesirable mess.
The regulatory odyssey began back in the mid-1990s.
Just one look at Chollas Creek then was enough to know it was dirty. Pollution from a 25-square-mile area runs into the creek, mostly swept there by San Diego’s occasional rain. Zinc from tires, copper from brake pads, pesticides from yards, trash from everywhere – all of it drains into Chollas Creek, which then flows into San Diego Bay.
The stew is also toxic to marine life. In 1999, a group of researchers took their best stab at settling the question of which pollutants were doing the most harm. They applied creek water to purple sea urchin sperm for 20 minutes, then they added purple sea urchin eggs for another 20 minutes.
They determined the water caused impotence in the sea urchin.
The researchers identified a culprit: tiny but toxic amounts of dissolved metal in the water was causing the infertility – most likely zinc, but perhaps also copper.
With these findings in hand, the gears of government began to turn – slowly – to reduce the amount of toxic metals in Chollas Creek.
Nine years later, in 2008, the board placed strict limits on the amount of copper, lead and zinc allowed in Chollas Creek. Since the metals were coming from roads, industrial businesses and private parking lots, complying with those limits required participation from a complex arrangement of local governments and state agencies.
San Diego, La Mesa, Lemon Grove, unincorporated county land, Caltrans and the Port of San Diego all straddle the creek at some point, so all of them were on the hook for part of the cleanup costs. They had 20 years to clean things up. The collective price tag was estimated to be $2.1 billion.
They figured out that in one year, about 7,200 pounds of zinc and about 1,100 pounds of copper flowed through the creek during wet weather. To comply with the Regional Board’s limit on metals, the cities and agencies needed to reduce that to 2,600 pounds of zinc and about 300 pounds of copper. (The amount of lead in the creek is now already low enough.)
The biggest burden fell to the city of San Diego, which would be responsible for two-thirds of the cleanup costs.
Getting thousands of pounds of metal out of the creek is not a matter of simply picking it up. The metals are mere molecules – bits of tires, bits of brake pads and bits of galvanized chain-link fences and roofs.
The only way to clean up the metal molecules is to either stop them from flowing into the creek, or build new water treatment facilities. The first is prohibitively burdensome, the second is incredibly expensive. Treating the water to that standard would mean using some of the same technologies desalination plants use to make ocean water drinkable.
The city’s immediate solution was to avoid spending money.
At first there was bluster.
In 2006, even before the rules took effect, the city said complying would cost as much as $1.4 billion. The city also said it might need to tear down 2,000 homes to make way for water treatment facilities.
Then there was hypocrisy.
The city also argued in 2006 that the only way to comply with the regulations would be expensive treatment facilities. Cheaper options – street sweeping to clean up metals, inspections of businesses that might be polluting and educating people about clean water – would not work, the city said.
Then, in February of this year, the city detailed its plans to clean up Chollas Creek. Its plan is to increase inspections, sweep streets and educate the public. Those are the things it said would not work.
Finally, the city put its finger on the best solution it could find: If complying with the rules was too hard, why not just change the rules?
The city decided its best move was to challenge the science behind the regulations.
This is not as brazen as it sounds. All along, the metals regulation had language in it that invited this sort of challenge.
The regulation – formally known as a Total Maximum Daily Load, or TMDL – uses three separate equations to set the limits on copper, zinc and lead. The equations include a number meant to represent how metals interact with other molecules in the water and affect aquatic life.
Metal in water that is full of minerals, for instance, will be less toxic to fish than metal in water that is mineral-free. That’s because the minerals bind to the metals, rendering them harmless.
When the Regional Water Quality Control Board set the metals limit, it didn’t know exactly what number to use to represent the effect of minerals in Chollas Creek on metals in the water. So the agency picked a default number created decades ago by the U.S. Environmental Protection Agency. The number was conservative and bore little resemblance to the reality of Chollas Creek, which is filled with minerals.
By using the placeholder number, the board had thrown up its hands and placed the burden of checking to make sure its expensive new regulations made sense on the city. The intention was noble – to clean up the creek as fast as possible – but the effect was something else.
The city saw an opening and seized on it.
By May 2011, just two and a half years after the board set a 20-year goal to reduce metals in the creek, the city began disputing its science.
It hired consultants to study water chemistry and aquatic life. They concluded that copper was far less dangerous than the board initially thought and zinc was slightly less dangerous.
The city says its studies show the rules were a mistake: The city was being asked to spend a lot of money based on incomplete science.
“It’s just showing that the original TMDL was just overly conservative because it didn’t have local data,” said Drew Kleis, deputy director of the city’s Storm Water Division.
The Regional Water Quality Control Board now agrees.
The board is preparing to adopt the city’s recommendations and ease the limits it put in place in 2008.
Before, the city was going to be forced to remove about three-fourths of the copper from the water and two-thirds of the zinc.
If the change is approved, the city won’t have to reduce the amount of copper at all, and it will only have to decrease the amount of zinc in Chollas Creek by about a third.
Those changes will save the city a lot of money. According to a 2013 estimate, the city of San Diego will save $880 million. La Mesa, Lemon Grove, the county, the Port and Caltrans will also save a combined $390 million.
The change could be coming just in the nick of time for the city: A key deadline to comply with the regulations is approaching in 2018.
But the city’s budget isn’t the only thing that will benefit from loosened regulations. Private businesses operating near the creek also have a lot riding on the board’s metals rules.
About half the copper and zinc in the creek comes from businesses. They could also be required to reduce the amount of trace metals coming off their properties.
S. Wayne Rosenbaum, an attorney who represents such businesses, said if the metals limit is not eased, he will advise his clients to move away from Chollas Creek.
But he also recognizes the irony that the city spent a whole lot of effort trying to avoid the regulations.
“Maybe Chollas Creek is a good example of a reality check: It’s cheaper to prove that it isn’t quite as bad as we thought it was than to do something about it,” he said.
The city says it isn’t getting off lightly: It city still plans to spend $171 million over the next 25 years to clean up Chollas Creek, said city spokesman Anthony Santacroce. The efforts it makes to clean up the zinc will also reduce the amount of copper, even though the city is no longer required to do so.
There are two ways to see the change, though they’re not mutually exclusive.
To the city’s credit, water science has advanced significantly in the past decade. Perhaps it would be dumb for the city to be forced to spend more than $1 billion based on a 17-year-old test of sea urchin fertility.
A technical report that the board prepared ahead of this week’s meeting says as much: The original metals limits were “overly conservative in light of actual site conditions” and compliance “is costly and results in limited gains to water quality.”
Robert Mason, a professor of marine sciences and chemistry at the University of Connecticut, said some of the city’s work to dispute the board’s original science is based on research that didn’t exist just a few years ago because this area of water chemistry is a developing field. Mason was one of two outside experts who reviewed the city’s work on behalf of the Regional Water Quality Control Board.
But the other way to look at is to ask: Has the city found a way to move the goal post at the last minute? After all, Chollas Creek is still filled with trash and trace metals.
The city did new lab work to test whether the water was toxic to fleas and minnows, but it never retested the water on sea urchins, a key animal the board used to determine there was a problem.
Marc Buetel, a professor of environmental engineering at UC Merced, also reviewed the city’s work for the board. In a letter, he told the board a revised metal limit makes sense and “will be protective of aquatic life,” but he also questioned whether the city had done enough research to justify it.
Environmental groups oppose the change, though they have acknowledged that some change in the metals standard may be justifiable.
Wayne Chiu, a Regional Water Quality Control Board staffer, said the agency has learned a lot about the metal limits it imposed, which were a relatively new regulatory tool. The board says it is still working to clean up Chollas Creek, it’s just allowing for a different approach.
“I would like to think that over the course of the last 20 years, things have gotten better and while it’s still not in its ideal condition, that doesn’t mean it won’t be someday,” Chiu said. “It’s just unfortunately with the way regulations work, with the way government works, with the way the stakeholders involved work – it generally takes a lot more time than anybody ever thinks it will to get a state everybody is happy with. And even then, somebody will probably be unhappy.”