The San Diego Regional Water Quality Board pushed off until next year a rule change that would allow copper and zinc to keep flowing through Chollas Creek.

The board is now also considering a new regulation that could cost businesses in the creek’s 25-square-mile watershed tens of thousands of dollars.

At what ended up being an all-day meeting, San Diego Mayor Kevin Faulconer lobbied the board to scale back a 2008 rule that limits the amount of copper and zinc allowed into the creek.

Those rules were meant to protect marine life, but they were based on inadequate science. Even the board’s chairman, Henry Abarbanel, said the existing metals limits are “unscientific and random.”

The metals limit is wildly expensive: San Diego and surrounding cities said they would have to spend $2.1 billion to comply. If the rules are eased, the city of San Diego alone would save about $880 million.

But the city, which has been working to ease the rules for most of this decade, must wait a bit longer.

We Stand Up for You. Will You Stand Up for Us?

The rule change vote was derailed by Marco Gonzalez, an environmental attorney who files lawsuits against businesses that pollute the creek and other San Diego water bodies.

Gonzalez said the Regional Water Quality Board should force businesses to do more exhaustive testing of water that runs off their property into the creek, if they want to take advantage of the relaxed rules.

Several board members, including Abarbanel, jumped on the idea, even though Gonzalez told the board later in the meeting that he did not think the businesses would comply with it.

Even so, the board is now set to consider the more expensive testing requirements at its February meeting.

S. Wayne Rosenbaum, an attorney who represents businesses impacted by the testing requirements, has said that if the metals limit is not eased for businesses, he would advise his clients to move away from Chollas Creek.

If the board ends up imposing new testing requirements, businesses will face a dilemma: Either comply with a water quality rule the board admits doesn’t make any sense, or spend a lot of money on more expensive tests to get around that rule.

Already, by one estimate, it costs $37,000 a year for even relatively small industrial businesses to comply with clean water laws. The new testing would cost about $10,000, thousands more than they cost now, said Ed Othmer, the vice president of the Industrial Environmental Association, a trade group.

“We understand that it is both physically and economically difficult,” Gonzalez said in an interview.

Also at the meeting, a representative of the Sierra Club suggested that the Regional Water Quality Board should order the city to build a new park along Chollas Creek as a form of compensation for avoiding hundreds of millions of dollars in cleanup costs.

Abarbanel said he was a fan of that idea but the board didn’t have the power to just order the city to build a park out of the blue. But he and fellow board member Tomás Morales said that since the board fines the city from time to time for violating clean water laws, it might use one of those penalties as a chance to demand that the city build a new park.

    This article relates to: Environmental Regulation, Must Reads, Science/Environment

    Written by Ry Rivard

    Ry Rivard is a reporter for Voice of San Diego. He writes about water and power. You can reach him at or 619.550.5665.

    mhcfires subscriber

    Why do these "environmental attorneys" always have to get into the act? Marco Gonzalez, like his buddies Pease and Briggs, is only out to make a buck off whatever agency or business he can. These sharks are  nothing more than extortionists. They remind me of the Pharisees in the Bible, straining at gnats and swallowing camels. I never see these guys suggesting something feasible, only threats of lawsuits.

    JoAnn LaGasse
    JoAnn LaGasse subscriber

    Let's help Atty Rosenbaum's clients and business owners whose activity dumps toxic chemicals to move away from the creek. We need stringent restrictions on any activity which threatens the watershed, bay, or the ocean. Chollas Creek is a very long area and provides jobs to the communities through which it passes. It's entire banks do not need to be a park, but other types of businesses are a welcome part of the community. 

    Peter Maier
    Peter Maier

    A federal judge in New Orleans, hopefully soon, will decide on a lawsuit, filed five years ago, demanding EPA to regulate 'nutrient pollution' on a national level. Nutrient (fertilizer) pollution originates from different sources, now mostly blamed on the runoffs from farms and cities, but what the public does not know is the best kept national secrete, that EPA never implemented the CWA, because it used an essential test (BOD) incorrect and not only ignored 60% of this oxygen exerting waste, but all the nitrogenous (urine and protein) waste, while this waste, like fecal waste exerts an oxygen demand, but also is a fertilizer for algae. By calling this waste now a nutrient and blaming it mostly on farmers, the public has been successfully kept in the dark.

    Therefore no more new regulations or lawsuits until EPA first acknowledges three major sources of nutrient pollution, that are presently ignored.

    1. The lack of nitrogenous (urine and protein) waste treatment in municipal sewage, due to a faulty test and also causes nutrient pollution.

    2. Septic tanks do not treat sewage, they only solubilize sewage so it can get into groundwater.

    3. The impact of 'green'rain' or rain containing reactive nitrogen (fertilizer), the result of the burning of fossil fuels, the increased use if synthesized fertilizer and increased frequency of lightning storms, the result of global climate change.