While Tijuana Sends Sewage Over Border, US Avoids Source Of Stink

By MacKenzie Elmer, the Voice of San Diego

August 19, 2024

For decades, San Diegans have been trying to hold the federal government responsible for sewage spilling into the United States from Tijuana via the International Boundary and Water Commission or IBWC, the binational federal agency that cleans some of the sewage as it crosses the border.

They’ve sued the IBWC. They’ve written it up hundreds of times for breaking environmental laws. Some of the most radical citizens of the California town that’s most impacted, Imperial Beach, called on the United States to take Mexico to the Hague, the international court that handles disputes between nations. And every step of the way the federal government has said: It’s not our fault.

The most recent example was this week when the IBWC rejected the notion it could be held accountable for smells emanating from the Tijuana River, which gets contaminated by raw sewage and trash as it snakes its way through its namesake metropolis in Mexico. The San Diego Air Pollution Control District declared the IBWC’s equipment was to blame for over 150 odor complaints in nearby communities. The IBWC said, you’ve got the wrong guy.

In the meantime, 54 million gallons of polluted water flowed down the river channel and into the United States at a time of year when the riverbed should be naturally dry.

And so, another effort to hold the U.S. federal government accountable for the sewage crisis fell flat because the source of the problem involves the politically complex task of investing heavily in the infrastructure of a foreign city in a poorer country notorious for corruption. All the while, the angst of South Bay communities and their political leadership desperately seeking justice continue to fire at the wrong target.

The San Diego Air Pollution Control District, which enforces local air quality rules, put the IBWC on notice last month that some of its broken equipment was to blame for odor around South Bay. The IBWC responded that the source of the smell is the Tijuana River, not our treatment plant or pipes and pumps we use to clean 25 million gallons of Tijuana sewage each day. That came in a letter IBWC sent the district Tuesday. It rejected allegations that it violated local odor nuisance laws.

Voice of San Diego mapped the addresses of the complainants and found that nearly all of the people called in from within the city of Imperial Beach, Nestor or San Ysidro lamenting that their neighborhoods have smelled like sewage for years. Only a handful pinned the smell on a broken wastewater pump that local pollution cops blamed in their official report.

Paula Forbis, an air pollution control officer told CBS 8 on Aug. 1 that though levels of hydrogen sulfide (an indicator of sewage) the agency measured in the air weren’t high enough to pose a health risk, it was enough for the district to impose an air quality violation on the IBWC.

Punishing the federal government by writing them up for breaking the law has proven to be ineffective beyond bad publicity, history shows. The feds have what’s called sovereign immunity, a legal concept carried over from British doctrine that means the King can do no wrong. (In this case, the king is the federal government.) Usually, pollution violations are brought against a person or even a company, which the federal government is not.

That’s why the IBWC hasn’t paid any penalties associated with over 580 Clean Water Act violations from the San Diego Regional Water Quality Control Board since 2020, records show. Violations include undertreating Tijuana’s sewage before discharging it to the ocean, or water that’s so dirty it’s devoid of the necessary oxygen organisms need to survive, or too many solids (poo, et al.) left behind in the water after treatment. The board doesn’t know how much the IBWC would owe the state for those violations, something the board is now calculating after inquiries from Voice.

The notion that the feds get off basically scott-free for violating the federal government’s own laws is a problem, legal experts say. Patrick McDonough, an attorney for San Diego Coastkeeper which filed a lawsuit over those water quality violations against the IBWC and its private contractor that operates the plant, Veolia, said sovereign immunity strips regulating agencies of their “teeth.”

“Financial penalties are strong motivators. Without them, there seems to be no way to create the sense of urgency needed to combat the crisis,” McDonough said.

But it’s not clear that the penalties for violating local pollution laws would be steep and impactful enough to force the federal government to do anything other than what it’s already committed to doing: Treat as much of Tijuana’s sewage as the IBWC can with the budget Congress gives it. Such penalties and litigation are more successful between U.S. governments that have to play by the same rules. Take Pure Water for example, the city of San Diego’s multi-billion water recycling solution to a federal mandate that it stop sending undertreated sewage into the Pacific Ocean from a treatment plant in Point Loma. Lawsuits from groups like Coastkeeper and Congressional pressure on San Diego forced the city to agree to a compromise: Build a massive wastewater to drinking water recycling system.

But forcing the federal government to take ownership of a problem in a foreign country is a much bigger leap.

The U.S. got close in 2008 when the sewage crisis solution was a $539 million, U.S.-taxpayer funded sewage treatment plant in Tijuana called Bajagua. The feds killed the controversial project that drew ire from environmentalists and auditors that concluded the plan was full of uncertainty and cost overruns. Lately there’s been little appetite to spend U.S. funds on projects the country can’t control in Mexico. That’s what happened with the most recent appropriation of $300 million from a U.S.-Mexico-Canada treaty. Nearly all of that money was promised toward playing catch up to the booming population and toilet-flushing capacity of Tijuana by building more sewage treatment infrastructure in the U.S.

IBWC’s leader, Commissioner Maria-Elena Giner, seems to be trying to expand the U.S. footprint in Tijuana. A recent press release stated that she’s working on new ways to figure out the sources of the summertime flows with Mexican officials. That includes weekly meetings between the two countries, tracking sources via satellite aerial photography, and asking permission to inspect the length of the river for unknown contamination sources.

This sewage contamination problem isn’t new. It’s been a problem ever since Tijuana began to transform into a metropolis around the 1940s. The river flows northward carrying with it whatever contamination finds its way into the concrete channel in the rapidly-urbanizing city home to over 2 million people, manufacturing plants, countless newcomers seeking to migrate, and makeshift communities without wastewater infrastructure.

The feds aren’t totally blameless. Voice revealed last year that its treatment plant is so old and underfunded by Congress that it has been breaking down. It’s a similar story with the piece of infrastructure that triggered the Air Pollution Control District’s investigation: A broken pump responsible for pumping leaking sewage between Tijuana and San Diego to the treatment plant at Hollister Road. That pump is over 25 years old, Rogers with IBWC wrote in his updates on the agency’s attempt to fix it. Wastewater and sand flowing from a construction site without erosion control in Tijuana’s Matadero Canyon contributed to the pump’s failure, he told the air pollution cops.

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