The Honorable Jeffrey T. Miller, U.S. District Judge in San Diego, denied in part the United States International Boundary and Water Commission’s (IBWC) motion to dismiss the lawsuit brought against it by the City of Imperial Beach, Chula Vista, and the Port of San Diego (plaintiffs) for violations of the federal Clean Water Act. The intent of the suit is to force the USIBWC to take action against the cross-border flows that routinely close the Imperial Beach shoreline and have even come to impact the Coronado beaches. The Judge’s ruling means that the suit can move forward. [City of Imperial Beach, et al. v. International Boundary Commission-United State Section, ___F.Supp.3d___, Case No. 18cv457-JM-JMA (S.D. Cal. 2018).]

 The International boundary and Water Commission and the Parties

The IBWC is an international body that was formed by the United States and Mexico in 1889 to resolve disputes over the Mexican-American boundary line formed by the Colorado and Rio Grande rivers. The IBWC is comprised of its U.S. Section (USIBWC) and its Mexican counterpart, the Comission Internacional de Limites y Aquas (CILA) to conquer water quality issues created by the discharges of the Colorado, Rio Grande, and Tijuana Rivers at the U.S. and Mexican border.

Transboundary currents often bring in large amounts of contaminants and pollutants from the Tijuana River Valley to other beaches in and around the Greater San Diego Area in California, affecting the area’s marine environment through oxygen depletion and chemical toxicity. The City of San Diego has declared a continued state of emergency since 1993 due to these sewage discharges. More recently in March of 2017, the state of Baja California also declared a state of emergency due to the vast amount of raw sewage flowing from the Tijuana sewage collection system into the waters of Tijuana and the Tijuana River valley.

In 1944 the U.S. and Mexico entered into a Treaty (1944 Treaty) to monitor and maintain the boundary and transboundary rivers and streams of the Colorado, Rio Grande, and Tijuana Rivers. The 1944 Treaty gives the IBWC jurisdictional authority to resolve “border sanitation problems” or instances where:

• . . .the waters that cross the border, including coastal waters, or flow in the limitrophe reaches the Rio Grande and Colorado River, have sanitary conditions that present a hazard to health and well-being of the inhabitants of either side of the border or impair the beneficial uses of these waters. (Minute No. 261 at 2.)

Today, the USICWC and CILA work cohesively to exercise the rights and obligations of their respective governments in accordance with the 1944 Treaty. Under the 1944 Treaty:

• . . .[n]either Section shall assume jurisdiction or control over works located within the limits of the country of the other without the express consent of the Government of the latter. (1944 Treaty, Art. 2.)

On September 24, 1979, both the USIBWC and CILA agree to:

• . . .give permanent attention to border sanitation problems and give currently existing problems immediate and priority attention.

In an effort to further address border sanitation, the Sections approved the Conceptual Plan for the International Solution to the Border Sanitation Problem in San Diego, California/Tijuana, Baja California on July 2, 1990. (Minute No. 283 at 4.) The conceptual plan provides the framework for the design, construction, and operation of the South Bay International Wastewater Treatment Plan and its facilities (South Bay Plant), an international sewage collection and secondary treatment plant.

The South Bay Plant

The South Bay Plant is located in the Tijuana River Valley in the City of San Diego and is owned by USIBWC. By way of six canyon collectors, the South Bay Plant collects and treats overflow wastewater from Mexico from the Tijuana River and its tributaries. The South Bay Plant is maintained and operated by Veolia, a limited liability company headquartered in Delaware.

Due to the wastewater’s ultimate discharge in the Pacific Ocean, the South Bay Plant and its canyon collectors are subject to the terms of the Clean Water Act National Pollutant and Discharge Elimination System (NPDES) permit. The NPDES Permit only authorizes discharges in the Pacific Ocean through the South Bay Ocean Outfall, and only after the pollutants have undergone a second treatment at the South Bay Plant.

Flooding Issues and Flood Control Conveyance

There has been an increasing problem with uncontrolled transboundary flows that lead to frequent beach closures in the City of Imperial Beach and its adjacent areas. Tijuana’s sewer system frequently fails, resulting in uncollected waters flowing across the U.S. -Mexican Border. Often times, these flows exceed South Bay Plant’s capacity and as a result, the wastewater goes untreated. Similarly, CILA’s wastewater treatment facility’s capacity is also exceeded, leading to further drainage from Mexico into the U.S. via the Tijuana River.

The USIBWC constructed a flood control conveyance (Conveyance) that begins at the U.S. border with Mexico. It directs overflow water and waste in a route that is west of the Tijuana River’s natural route. As a result, the water now flows in a manner that carves a new path of the Tijuana River (New Tijuana River) which flows downstream to the Conveyance, redirecting it to a CILA Diversion. However, the redirection often does not protect against high volume flows.

Procedural Background

In March 2, 2018, plaintiffs filed a complaint in federal court against theUSIBWC and Veolia (defendants). Plaintiffs allege a total of three causes of actions against the defendants: (1) against the USIBWC discharges of pollutants from the flood control conveyance without a NPDES permit in violation of the Clean Water Act (CWA) § 1311(a), 1342; (2) against both defendants’ discharges of pollutants from the canyon collectors in violation of the CWA and NPDES permit, and (3) against both defendants for violation of § 6972 the federal Resource Conservation and Recovery Act (RCRA). Defendants filed separate motions to dismiss, aiming to dismiss all three causes of actions.

The District Court’s Decision

As to the alleged violations of the CWA, the U.S. District Court stated that the plaintiffs must establish that the USIBWC “discharged” a pollutant to navigable waters from a point source. The main dispute is whether the polluted water collected and flowing through the Conveyance which created the New Tijuana River, qualifies as a “discharge” under the CWA. Other courts have considered the transfer of polluted water within two portions of the same body of water not to constitute a discharge. Following, the court noted that a factual determination was necessary to determine whether or not the New Tijuana River is considered a distinct body of water or merely a tributary.

The court also reviewed the merits of the alleged violations of the NPDES Permit for the South Bay Plant. The NPDES Permit prohibits any discharge of waste to a location other than the South Bay Ocean Outfall. The USIBWC argued that the overflow from the canyon collectors does not constitute a discharge under the NPDES Permit but constitutes a Flow Event Type A, which is defined as a:

• . . .dry weather transboundary treated or untreated wastewater or other flow through a conveyance structure…and not diverted into the canyon collector system for treatment.

The court disagreed and interpreted “discharge,” in this instance, to include the flow of untreated water through a conveyance structure. Therefore, the court denied defendants’ motion to dismiss the second cause of action.

The court also denied Veolia’s motion to dismiss for lack of subject matter jurisdiction. Veolia claimed that the plaintiffs’ lack of standing in their suit against the LLC for two main reasons. First, Veolia claimed that it was not the source of the pollution and therefore, the plaintiff’s cannot trace the pollution to Veolia. However, the court disagreed and determined that the NPDES Permit under which Veolia operates requires it to clean up wastewater from Mexico and therefore, Veolia failed fulfill its duty and caused the plaintiffs’ harm. Second, Veolia argued that the primary cause of the overflow is attributed to inadequate wastewater facilities—an issue that can only be resolved with the IBWC, not Veolia. Again, the court disagreed and stated that Veolia’s failure to mitigate and clean up the overflow was a redressable issue.

Lastly, the court reviewed plaintiff’s argument as to alleged violations of the Resource Conservation and Recovery Act by USIBWC for contributing to the:

• . . .design, construction, operation, maintenance, and monitoring of the transnational wastewater collection treatment system originating in Mexico.

Section 6972(a)(1)(b) of the RCRA grants any citizen the authority to commence of a civil action against a past or current owner or operator a wastewater treatment facility who has:

• . . .contributed or who is contributing to the past or present handling, storage,treatment, transportation, or disposal of any solid or hazardous waste which may present an imminent and substantial endangerment to health or the environment.

Because Mexico is obligated to operate and maintain its own water treatment systems, the USIBWC argued that it cannot be held liable under RCRA for maintaining a treatment plant in Tijuana. The court agreed with USIBWC and granted the motion to dismiss on this cause of action.

Conclusion and Implications

The court’s handling of this international water pollution issue is a clear example that courts are moving toward providing greater protections to the environment. Not only did the court broadly interpret the NPDES permit definition of “discharge” to include flows of water through a conveyance structure, but it also held entities liable for their failure to mitigate a source of pollution that the entity did not create itself. A continued increase of rulings in favor of environmental protections can be expected.

(Rachel S. Cheong, David D. Boyer)