The purpose of this Article is to examine recent developments in the long-standing struggle by the United States and Mexico to cope with managing cross-border wastewater. Two notable legal developments have occurred recently that are fundamental to understanding the situation today. One is legislative, and the other is judicial. Neither has received scholarly comment. The first is the enactment of Tijuana River Valley Estuary and Beach Cleanup Act, which was signed into United States' law in 2000. It signified a significant change in policy by Congress. Prior to the enactment of the Cleanup Act, the international agreement contained in Minute 283 specified that both the primary and the secondary wastewater treatment required by the federal Clean Water Act was to be done in the United States. However, the Cleanup Act authorized the Secretary of State to negotiate and execute an agreement providing for secondary treatment to be done in Mexico. The second development occurred on the judicial front. It resulted from the failure of the United States to comply with federal and California water quality permit standards contained in the International Wastewater Treatment Plant's NPDES permit. This permit contains effluent limitations for total suspended solids (TSS) and chemical and biological oxygen demand (CBOD5) consistent with "secondary treatment," as required by the Clean Water Act. It also includes effluent limitations for acute and chronic toxicity and ammonia in order to implement California water quality standards, including requirements based on standards contained in the California Ocean Plan and San Diego Basin Plan. In early 2001, California filed suit against the United States for failing to meet its permit obligations. This action was considered necessary because the doctrine of federal sovereign immunity limited California's other options to effectively deal with the situation. The suit was filed in federal district court over the continuing operation of SBIWTP in violation of the secondary treatment requirements imposed by federal and state law. In the litigation, California has not taken a position on where the secondary treatment should occur, only that it should occur as promptly and under a court-supervised schedule of implementation. Taken together, these developments are certain to provide a strong impetus to breaking the current logjam of political inaction. Until this happens, the United States will continue to operate the SBIWTP in violation of its obligations under international agreement with Mexico as well as under federal and state law.
John H. Minan,
Recent Developments in Wastewater Management in the Coastal Region at the United States-Mexico Border,
San Diego Int'l L.J.
Available at: https://digital.sandiego.edu/ilj/vol3/iss1/3