A Spill-a-Day
San Diego Coastkeeper Zeroes In On Sewage Pollution

By Bruce Reznik,
San Diego Coastkeeper

“If San Diego County has established itself as the California capital of sewage spills, this [Mission Bay] beach is its White House…Care for a little dysentery to go with that typhoid fever,
Mr. President?”
—Kemp Powers in Forbes Magazine, Beaches That Make You Go Ewwwww! (July 2000)

Just six years ago, San Diego had built a reputation as being home to some of the worst performing sewage agencies in the nation. Stories in Forbes Magazine, The Wall Street Journal and other national media outlets put not only citizens but the region’s $6 billion tourism industry, and the 175,000 jobs it supports, at risk.

In 2001, San Diego Coastkeeper (formerly San Diego Baykeeper) resolved to address the region’s chronic sewage spills and inadequate treatment as the organization’s highest priority. Coastkeeper’s first target was the City of San Diego, the largest contributor to the region’s sewage woes. From 1996-2001, San Diego averaged nearly a sewage spill a day.

The city had long been under fire from local regulatory agencies. The San Diego Regional Water Quality Control Board leveled a $3.4 million dollar fine against the city – the largest such fine for a sewage spill in California history – after a week-long 34 million gallon spill in February 2000.

Large fines, however, did not address the systemic problems behind San Diego’s sewage crisis – namely, a decades-long lack of investment in sewer infrastructure had left the city with 1,000 miles of sewer pipe (one-third of the entire collection system) beyond its life expectancy. With a pipe replacement schedule of 15 to 20 miles per year, San Diego was not even keeping up with its ongoing maintenance needs, let alone overcoming decades of neglect. Additionally, a combination of poor inspection and maintenance programs and inadequate sewer metering meant the city had difficulty tracking major spills, allowing them on occasion to go for days before being addressed.

On March 20, 2001, San Diego Coastkeeper and The Surfrider Foundation jointly filed a Clean Water Act lawsuit against the city challenging its chronic sewage spills. U.S. EPA joined the suit in support of our case in 2003.

San Diego’s initial response to these suits did not bode well for a quick settlement. The city hired James Dragna who had unsuccessfully defended the City of Los Angeles against a sewage lawsuit brought by Santa Monica Baykeeper.

Negotiations dragged on with little progress for nearly two years. However, a combination of factors helped us make significant strides towards settlement in late 2002. First, a new City Council was elected. This environmentally-minded group sent a clear message that it wanted the city to engage in good-faith negotiations with the environmental groups, even providing resources to facilitate negotiations and hire experts to evaluate its sewer system. The retirement of the head of the city’s Metropolitan Wastewater Department, long considered by environmentalists as an impediment to solving the agency’s problem, led to the hiring of Scott Tulloch, a much more engaged director. Finally, the election of a new city attorney, combined with a financial crisis that has left the city near bankruptcy, resulted in discontinuing Mr. Dragna’s contract as outside counsel.

Even while the legal settlement was slow to develop, the city, now under new and improved leadership, was already beginning to implement measures to reduce spills in response to the suit – measures that would eventually be memorialized in a legal settlement. In 2001, the city approved a 4-year, 30 percent sewer rate hike to generate funding for sewer line replacement and maintenance. Pipeline rehabilitation and replacement was also increased from 15 to 45 miles per year. In May 2005, after more than four years of litigation, Coastkeeper, Surfrider and EPA reached an interim agreement with San Diego that obligates the city to continue a $187 million inspection, maintenance and sewer pipe replacement program. The city has seen an 84 percent reduction in sewer spills, from 365 in 2000 to only 63 spills in 2005. This reduction came in spite of near-record rainfall in 2005, which has traditionally meant high-spill years.

Coastkeeper, Surfrider and EPA are now working with the city to reach a final agreement, which will include major sewage infrastructure improvements to keep the city’s sewage out of San Diego’s bays, rivers and coastal waters.

San Diego Coastkeeper Takes On The Marines
As bad as the City of San Diego’s record was on sewage spills, the Marine Base at Camp Pendleton was worse. The reason for these failures was simple – for decades, little maintenance has been done on the base’s sewage collection system and the base’s five sewage treatment plants that date back to the 1940s and 50s. While everyone knew about the problems, nobody was willing to address them. In fact, top officials at U.S. EPA and state and local regulatory agencies approached Coastkeeper about bringing a suit as these agencies were unable or unwilling to do so. Finally, in November 2001, Coastkeeper, Surfrider, the American Canoe Association and Divers’ Environmental Conservation Organization filed suit against the base.

This was one of the most difficult and controversial suits Coastkeeper has ever had to bring. Our notice of intent to sue [the first step in filing a Clean Water Act lawsuit] was in the outgoing mailbox in our attorney’s Washington, DC, office when the terrorist attacks of September 11 occurred, halting mail service. We held off filing the notice as we wrestled with whether we should bring the suit. Eventually, we decided we had to move forward. Not only were the base’s sewage spills damaging our coastal environment but Marines were training in this sewage-tainted water. Despite the public relations worries and the loss of two board members who resigned as a result of this decision, we concluded that nothing is more patriotic than clean water and a safe environment. We were later assured that our decision was justified after receiving letters and emails from current and past Marines thanking us for taking action.

After nearly 18 months of negotiations with officials, we reached an agreement in May 2003 that required Camp Pendleton to implement a strict prevention and response program for sewage spills and identify the appropriate technology for treating sewage at the facility.

Since then, Camp Pendleton has reduced its spill score (measuring frequency & impact of spills) by more than 50 percent, more than two years faster than required under the legal agreement. And a new advanced sewage treatment plant is scheduled for completion by the end of 2006.

Enemy of The Environment

James J. Dragna, a partner at Bingham McCutchen’s Environmental Group, prides himself on “counseling and litigation matters in all environmental media, with a particular emphasis in waste, wastewater and water rights matters.” Once a senior trial counsel at the U.S. Department of Justice, Mr. Dragna has spent much of the last decade profiting handsomely by fighting to allow pollution of our waters. He has earned well over a million dollars for himself and his law firms defending the City of San Diego’s ‘right’ to have an exemption from secondary treatment standards and spill untreated sewage in our waterways. He also represented the City of Los Angeles, where his firm was paid nearly $6 million to defend the city’s abysmal sewage track record.

What makes Mr. Dragna an unabashed enemy of the environment is not his willingness to defend some of the nation’s worst polluters – it is the way in which he defends them. His prime tactics include using his client’s vastly superior resources to overwhelm and discredit citizen groups. Even though Mr. Dragna’s cases often end up as losers, he has mastered the legal art of delaying resolutions indefinitely. After lengthy citizen lawsuits both Los Angeles and San Diego were forced by courts to upgrade sewage infrastructure and reduce spills. Mr. Dragna needlessly delayed and drew out the litigation, forcing everyone’s costs through the roof. Beaches stayed contaminated longer and Mr. Dragna’s profits soared. This would almost be comical if he was not representing municipalities – meaning it is taxpayers who foot the bill.