John C.R. Jones

Tijuana River mouth, Imperial Beach

What happens when toxic wastewater escapes cleansing, crosses an international border, picks up more pollutants, dodges treatment again, and finds its way onto beaches? Lawsuits. After decades of spills, of human and environmental health threats, the lawsuits have begun.

But no matter which country spawned the millions of gallons of untreated sewage, bacteria, pesticides, chemicals, and heavy metals, the discharges didn't end on this side of the border, where secondary treatment is required before water is released to the ocean. On Sept. 5, the U.S. International Boundary and Water Commission was again sued for Clean Water Act violations at its South Bay International Wastewater Treatment Plant; this time by the San Diego Water Board.

The commission owns the plant, which treats sewage from Tijuana and discharges it to the ocean through the South Bay ocean outfall, a four-and-a-half-mile pipe near Imperial Beach. The plant's pollutant discharge permit allows it to discharge pollutants only at the South Bay ocean outfall, and only after secondary treatment at the plant.

But the suit claims numerous illicit discharges have occurred since 2015; more than 12 million gallons of untreated wastewater spewed into the Tijuana River, the estuary and the ocean. The treatment capacity of the South Bay plant is 25 million gallons per day, and the South Bay Ocean Outfall is 100 million gallons and is shared with the city of San Diego, which discharges 25 million gallons per day, according to the water board. Others at war over dirty water in the Tijuana River Valley enjoyed a small victory on August 29, when district judge Jeffrey Miller ruled, in a decision that mostly went their way, that the case can go forward. The suit was brought by Imperial Beach, Chula Vista, and the Port of San Diego against the water commission and Veolia, the contractor that runs the South Bay plant. The plaintiffs in that case alleged that Veolia failed to contain flows in the five canyon collectors meant to capture dry-weather flows from Mexico, and send it to the plant. The judge agreed that Veolia's permit requires them to do so.

Surfrider has also filed a lawsuit. Their case has been assigned to the same judge, says Gabriela Torres, Surfrider Foundation policy coordinator. "We are waiting to see if our case will be joined with the city of Imperial Beach lawsuit." The San Diego Water Board's case won't join any others since they are alleging separate causes for action, says David Gibson, executive officer. "The Court may choose to combine cases, but that is not requested in the litigation."

Unlike the first lawsuit, the board did not include Veolia — but like Surfrider's case, the focus is on violations of the Clean Water Act that began in 2015. According to the complaint, discharges of waste from the canyon collectors closed beaches in Imperial Beach more than 200 days in 2015 and about 150 days in 2016 and 2017.

Since spills have been occurring for decades, why focus on just those years? "The suit covers the period since the permit was reissued by the Water Board with more specific, enforceable requirements" for operating the facilities, Gibson says. As for health impacts to the Tijuana River watershed, what about wildlife — or the potential for superbugs to arise? Gibson says the Board isn't requiring any specific studies on wildlife, but "may issue an Investigative Order to the commission that will require bacterial indicators and pathogen monitoring on a weekly basis and other constituents on a monthly basis."

Environmental blows to the Tijuana River Valley are so deep, plaintiffs in the first case argued, a whole new river was born. A flood control conveyance that begins at the border directs wastes into an undeveloped area, where the Tijuana River never before flowed. The discharges carved a new river channel downstream, they claim. The water commission “significantly upended the natural hydrology of the Tijuana River Valley.” But the flood control conveyance isn't subject to the permit, and Veolia isn't involved in its operation. The judge said no factual record exists to allow the court to rule on whether the flood control conveyance and New Tijuana River are distinct, or if the flood control conveyance is a tributary. So he dismissed the claim for violations of the Resource Conservation and Recovery Act, allowing it to be amended within 14 days. The defendants "can't control wastewater beyond the limits of the infrastructure." Veolia blamed the sewage problems on Tijuana's failing system. While a diversion exists in Mexico to divert flows in the Tijuana River into the transboundary sewage system, it “frequently malfunctions, allowing sewage to flow past" it and across the border. But the lawsuits describe failures that could be prevented on this side. Gibson says the water board's suit "specifies causes for action resulting from the deficiencies in the operation of the water commission facilities, not as a result of a lack of effective source control in Mexico."