SAN DIEGO (CN) – A first-of-its-kind lawsuit by southern California cities and the San Diego Unified Port District over polluted waterways at the U.S.-Mexico border survived dismissal Wednesday when a federal judge found the agencies have standing to bring claims for Clean Water Act violations.
U.S. District Judge Jeffrey Miller advanced most of the claims by the San Diego County cities of Imperial Beach and Chula Vista and the San Diego Unified Port District, granting the plaintiffs leave to amend their complaint.
The judge noted the case is the first “in which a court addressed a CWA claim in which polluted waters enter the United States from another country.”
The SoCal agencies sued the International Boundary & Water Commission – United States Section and Veolia Water North America – West in March over inadequate and failing wastewater infrastructure at the U.S.-Mexico border that has allowed sewage and pollution to foul beaches and the Pacific Ocean in the United States.
The IBWC owns the South Bay International Wastewater Treatment Plant located in the Tijuana River Valley to treat sewage and wastewater from Tijuana, Mexico, as it crosses the border into U.S. waters.
Veolia contracts with the IBWC to operate the treatment plant along with water-capture basins in five canyons along the border. It must comply with the terms of a National Pollution and Discharge Elimination System (NPDES) permit in its operation of the plant.
State Attorney General Xavier Becerra gave notice in May he also intends to sue over sewage spills and pollution along the border.
Attorney Matthew Edling of Sher Edling in San Francisco represents the plaintiffs. He said they considered Miller’s order a win as they move forward with claims for Clean Water Act violations.
In his 22-page order, Miller rejected Veolia’s argument that since “its operation of USIBWC’s wastewater treatment facilities does not produce, add to, or exacerbate the pollution that originates in Mexico” it cannot be held accountable for the injuries plaintiffs suffered.
“Although Veolia is not the source of the pollution, the NPDES Permit under which it operates does require Veolia to work to contain and clean up wastewater that comes into the canyon collectors from Mexico. Failure to do so, as plaintiffs allege, contributes to the amount of wastewater that makes its way into the Tijuana River Valley and, eventually, the Pacific Ocean,” Miller wrote.
But the judge found he can’t yet make a determination about whether the movement of polluted water constitutes a discharge in violation of the Clean Water Act.
“[T]he border complicates matters,” he wrote.
“The factual record has not been developed to allow the court to rule on whether the flood control conveyance and New Tijuana River are meaningfully distinct or whether the flood control conveyance is a tributary,” Miller added.
Miller also allowed the claim that defendants violate their NPDES permit by discharging water from the canyon collectors to survive.
But he dismissed plaintiffs’ claim for violations of the Resource Conservation and Recovery Act, finding the IBWC’s transportation of waste through flood control conveyance “is passive in nature.”
According to Miller, “defendants cannot actively control wastewater beyond the limitations of the current infrastructure” – which has a capacity of just 25 million gallons per day – so they also cannot “exercise control over waste that flows through the canyon collectors but is not diverted to one of the drains for treatment at the South Bay plant.”
Miller gave the plaintiffs 14 days to file an amended complaint.
A spokeswoman for the IBWC did not return an email request for comment.