Federal officials could soon be the target of another lawsuit linked to the region’s persistent cross-border sewage problem. San Diego Coastkeeper announced its intention to sue in December, a move that could revive other legal challenges.
The environmental advocacy group filed a 60-day notice of intent to sue the International Boundary and Water Commission (IBWC). The IBWC routinely violates the state-issued sewage discharge permit at the federal government’s South Bay sewage plant.
The notice is required to give an agency time to correct the disputed issue, but San Diego Coastkeeper’s executive director, Phillip Musegaas, does not expect a resolution in two months.
“We have tried along with many, many other groups and elected officials to take a softer route. To find funding. To encourage IBWC to work more quickly, but none of that, thus far, has worked,” Musegaas said.
The sewage infrastructure south of the border is broken, allowing billions of gallons of sewage-tainted water to flow into the United States. Tijuana lacks a functioning sewage treatment plant and has had numerous pipe and pump station failures that keep the Mexican city from stopping cross-border flows.
That means the Tijuana River Estuary and the ocean off the county’s southern coasts are frequently unsafe for swimming.
Contaminated flows have overwhelmed the sewage capture and treatment facilities on this side of the border. That’s a violation of the IBWC’s discharge permit, which requires the plant to meet federal Clean Water Act standards.
“Fecal coliform or enterococcus, sewage bacteria indicators, have to be at a low enough level so that they don’t threaten public health or degrade the environment,” Musegass said. “The South Bay treatment plant has limits on a number of chemicals. Because it treats sewage from Tijuana, that sewage also has toxic chemicals and hazardous substances in it.”
“For the last ten years, we’ve had underinvestment in this plant. There hasn’t been appropriate maintenance. There haven't been appropriate operations. Which is why we are in the debacle we are in now.”Paloma Aguirre, Imperial Beach mayor
The problem is not new, but the region’s pollution regulators, the San Diego Water Quality Control Board, are working with the IBWC instead of punishing the federal agency.
“The board is aware of the violations,” Musegaas said. “The board has the authority to take strong enforcement actions and to date they have not. And so we are stepping in as citizens, as a clean water advocacy group, to take action to hold IBWC accountable.”
Regional board officials have repeatedly issued citations, but regulators held back on fining the federal agency for violating terms of its discharge permit.
A Supreme Court decision in the early 1990s — the U.S. Department of Energy v. Ohio — limits punitive fines issued against a federal agency.
“In that, the Supreme Court has specifically ruled that unless Congress has specifically waived sovereign immunity, sovereign immunity applies under the Clean Water Act and other federal statutes,” said David Gibson, the chief officer of the San Diego Regional Water Quality Control Board. “Federal immunity has not been waived for the International Boundary and Water Commission.”
Critics have long pointed out that municipalities on the U.S. side of the border would face massive fines for releasing that much sewage-tainted water into the environment.
In 2020, the city of San Diego was fined more than $2.5 million for a 6.7-million-gallon sewage spill into Tecolote Creek.
State regulators gave the federal agency until August to make much needed repairs to the aging sewage treatment plant.
But the $18 million the IBWC pledged to spend on repairs falls well short of the $300 million needed to rehabilitate the plant.
“While we cannot issue punitive fines, we can work with them and ensure they understand the expectations of the Clean Water Act,” Gibson said.
Imperial Beach officials are looking for more.
“For the last 10 years, we’ve had underinvestment in this plant,” said Paloma Aguirre, the mayor of Imperial Beach. “There hasn’t been appropriate maintenance. There haven't been appropriate operations. Which is why we are in the debacle we are in now.”
The town’s beaches have been off-limits to swimmers and surfers for more than two years, and that’s brutal for a community that celebrates its connection to the ocean.
“We’re in the worst situation we’ve ever been in. So we need to use every single tool available to us to make sure that the agencies that are in charge of protecting public health, that the agencies that are in charge of wastewater treatment, agencies that are in charge of the protection of our environment — that they’re all held accountable and responsible,” Aguirre said. “Because right now we have a crisis that is the biggest public health and environmental crisis of our region, if not the nation.”
Six years ago, Imperial Beach, with the Port of San Diego and Chula Vista, led the effort to sue the federal government. The city and county of San Diego, the Regional Quality Control Board, the Surfrider Foundation and others had separate lawsuits.
Those lawsuits were settled a year ago in exchange for a promise that federal officials would do more to stop the polluted flows. But flows have gotten worse.
Imperial Beach officials are taking a hard look at canceling the settlement and going back to court.
Settling is not an option for the impending Coastkeeper lawsuit.
“What we want is a court ordered — federal court — legal agreement that will hold IBWC accountable if they don’t meet these deadlines,” said Musegaas.
The lawsuit could be filed in March.
IBWC officials referred KPBS to the Department of Justice for comment. The federal agency declined the opportunity.
