Two public interest groups have filed a notice of intent (NOI) to sue the International Boundary and Water Commission (IBWC) over alleged Clean Water Act (CWA) violations from Tijuana sewage.

In the NOI, the two groups, San Diego Coastkeeper and the Coastal Environmental Rights Foundation (CERF), document “hundreds of violations … that result in the Tijuana River and coastal marine waters being overwhelmed with untreated sewage and toxic chemicals,” according to a CERF press release. “South Bay International [Wastewater] Treatment Plant (SBIWTP) discharges extremely high levels of sewage and toxic chemicals into the Tijuana River and Pacific Ocean in violation of its [CWA] permit, leading to years of public health impacts, beach closures and degradation of the Tijuana River Estuary.”

The IBWC is the federal agency responsible for water treaties with Mexico and funding border infrastructure projects. It’s also charged with operating the SBIWTP, The San Diego Union-Tribune says.

“Since being built in 1990, the IBWC’s South Bay treatment plant has suffered from operational and maintenance failures that result in chronic, severe pollution of coastal waters and the Tijuana River estuary,” the CERF press release continues. “The City of Imperial Beach has borne the brunt of the impact, with its public beach closed for over two consecutive years due to polluted discharges from this facility and related discharges of raw sewage from Tijuana. Earlier this year, IBWC was forced to admit the plant needed over $150 million in repairs, following decades of neglect.”

Who’s responsible, and what happened?

Many want explanations for the plant’s extreme deterioration.

In October 2023, Representative Scott Peters, D-Calif., and several members of Congress, including the San Diego County congressional delegation, sent a letter to the Department of State demanding a full account of how the SBIWTP fell into such a severe state of disrepair.

The letter includes the following questions:

• Who was responsible for ensuring its maintenance?
• When did the IBWC become aware of the plant’s deteriorated condition? Were these conditions reported to the State Department and/or the Office of Management and Budget?
• Is a contractor partially responsible for the plant deterioration?
• If the answer to the previous question is yes, is there currently a claim against the responsible contractor?
• What steps is the State Department taking to more quickly pursue the repair, rehabilitation, and expansion of the plant as described during the IBWC’s presentation to the California Regional Water Quality Control Board on September 13, 2023? And what measures are being taken to ensure the plant doesn’t reach such a deteriorated state in the future?
• As outlined in Minute 328 (a binational agreement between the United States and Mexico signed in 2022), Mexico will bear the cost of flow treated at the SBIWTP in excess of the volume of 25 millions of gallons per day (mgd) (1,100 lps). Please provide details on the number of violations, fines due, and payment timelines.
• As outlined in Minute 328, Mexico shall pay a share of the operation and maintenance of projects. Please provide the compliance status of this provision.

Alleged CWA violations

The NOI documents the following alleged CWA violations:

• Discharges of dichlorodiphenyltrichloroethane (DDT), polychlorinated biphenyls (PCBs), hexachlorobenzene, and other hazardous chemicals at thousands of times the permit limit;
• Violations of receiving water limits for bacteria in the Pacific Ocean at hundreds of times the limit in areas designated for water recreation and shellfish harvesting; and
• Failure to submit self-monitoring reports, depriving the public of meaningful access to information about the treatment plant’s discharges.

The groups seek injunctive relief to prevent further violations, declaratory relief, and monetary penalties.

Declaratory relief means the plaintiff is asking the court to make a decision statement about the rights, duties, and obligations of one or more of the parties to the lawsuit in order to gain clarity on a legal issue.

“The people of the South Bay have suffered the failure of governmental leadership at all levels for far too long,” said Marco Gonzalez, executive director of the CERF, in the foundation’s press release. “Like these impacted communities, CERF is tired of waiting for officials to step up and finally address this decades old problem. Without citizen enforcement, it’s clear nothing will change.”

Background

The two groups previously sued the IBWC in 2022, which resulted in a settlement of $300 million in funding for the South Bay treatment plant to be modernized and expanded.

“However, IBWC was forced to acknowledge in 2023 that the plant needed at least $150 million in repairs just to bring it back to a basic operating condition, and the expansion of the plant to accommodate future needs would cost nearly $1 billion dollars,” according to the CERF press release. “Since the settlement, the condition of the South Bay treatment plant has continued to deteriorate. The San Diego Regional Water Quality Control Board, which oversees the plant’s [CWA] permit, has thus far only taken administrative action to bring the plant into compliance, with little success.”

The group’s 24-page NOI letter, dated December 28, 2023, provides 60 days’ notice, as required by the CWA, of the groups’ intention to file a federal civil lawsuit.