Border water pollution dispute heads into another year

A nearly two-year dispute over polluted ocean water flowing from Mexico onto California beaches pits two cities and the San Diego Port District against the U.S. International Boundary and Water Commission and will endure into 2020 as a proposed settlement conference scheduled for Wednesday was continued by a federal magistrate judge.

The dispute, stemming from heavily polluted water flowing out of the Tijuana River Valley in Mexico into the Pacific Ocean and tributaries in San Diego County cities, began in March 2018.

According to their complaint filed by attorneys from Sher Edling LLP in San Francisco, the cities of Imperial Beach and Chula Vista, along with the port district, allege human and industrial waste, pesticides, trash and other pollutants pass through the treatment facilities of a third party management company hired by the international water commission before pouring over the U.S. border.

The suit alleges the water commission's contractor, Veolia Water Technologies, whose parent company, Veolia Environnement SA is a publicly traded company headquartered in France, is ill-equipped to treat 25 million gallons of incoming Mexican wastewater per day.

The order setting a new settlement conference for March 11, 2020 was signed Wednesday by U.S. Magistrate Judge Linda Lopez in San Diego.

In the original complaint, plaintiffs' attorney Matthew Edling said, "We want an enforceable judgment to require [the boundary and water commission] to do their job" and control the spills.

Measures to deal with the dirty water, such as the construction of five concrete channels and basins designed to capture water, have done little to mitigate damage from spills totaling more than 15 million gallons of wastewater in 2015 alone, according to the complaint. City of Imperial Beach et al. v. The International Boundary & Water Commission-United States Section et al., CV18-00457 (S.D. Cal., filed March 2, 2018).

According to a transcript of arguments made before a federal judge Jeffrey T. Miller in December 2018, a Department of Justice attorney representing the commission, Andrew Coghlan, said the U.S. agency could not adequately address what he called an "international pollution problem" without better cooperation from its Mexican counterpart.

"The application of the Clean Water Act urged by plaintiffs would necessarily impair or affect the provisions of those treaty arrangements by imposing on the United States Government an open-ended obligation to assume control over water quality in the Tijuana River," Coghlan said.

The treaty referred to is a 1944 agreement between the United States and Mexico that originally charged the commission with handling sanitation issues in the Tijuana River Watershed.

"Now, Mexico might agree to build some works within its border, upgrade some works in its borders through process of negotiation. But the ultimate outcome of any such negotiation is in many ways pre-figured. The United States Government is the entity that's left ultimately holding the bag. The buck would stop with the United States Government. That's the rub," Coghlan concluded.

"Plaintiffs overwhelmingly prevailed on Defendants' motions to dismiss and were permitted to proceed to discovery on all of their causes of action. Discovery is ongoing. The Port has been coordinating on case management with the other plaintiffs in the related cases. Simultaneously, the parties have attended multiple settlement conferences before Magistrate Judge Linda Lopez. The parties have discussed seeking amendments to the existing case management schedule and conference date to facilitate additional discovery, the Federal Government's analysis of pollution control infrastructure and related measures, and further settlement discussions," said Brianne Page, a public information officer for the Port of San Diego.

According to the complaint, tens of millions of gallons of waste have flowed into the water supply of affected communities in the course of hundreds of overflows and spills spanning from January 2015 to February 2018.

Veolia and attorneys representing the commission did not respond to a request for comment by press time Wednesday.