For years, the beaches of Coronado have been periodically shut down by governmental authorities as millions of gallons of raw sewage wend their way up the coast from Tijuana.
Rainfalls create runoff from storm waters which combines with human waste that emanates from pipe leaks at the deteriorating San Antonio de Los Buenos sewage treatment plant in Punta Bandera. For good measure, add industrial toxins from maquiladoras, border factories that dot the Otay Mesa landscape.
It flows into the Tijuana River Valley and out to the Pacific Ocean, eventually making its way to the shores of Coronado.
The valley navigates along an environmentally sensitive area, a vast watershed covering a 1,735-square-mile area straddling the United States and Mexico. Throughout the region, human safety and plant and animal health are at risk, never mind the intolerable stench that seriously impacts the quality of life.
Sewage keeps on coming
And while these two sovereign States have attempted to stem this binational disaster, the sewage keeps on coming.
Non-state actors (NSAs) like non-governmental organizations and citizen advocacy groups as well as local cities like Imperial Beach have stepped into the fray, but hopefully not the sewage.
But lawsuits are one thing; finding more permanent fixes are quite another matter.
The International Boundary and Water Commission (IBWC) is the international agency created by a treaty between the U.S. and Mexico, tasked to deal with transborder water issues along the U.S.-Mexico border.
The agency has its antecedents in the Treaty of Guadalupe Hidalgo 1848 that concluded the U.S.-Mexico War.
A subsequent treaty between the two countries, one of many, is the 1944 United States-Mexico Treaty for Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande.
This treaty created the process by which “Minutes” – further ad-hoc arrangements of a binational nature can be fashioned to respond to changing conditions.
Treaty regimes, like pipes, need repair
These treaty regimes, like the pipes in the water treatment plant south of the border, however, are old and in need of repair.
The IBWC system may have worked 80 years ago, but most critics view the current mandate, structure, and jurisdiction of the IBWC as inadequate to handle the complexities involved with water management on the border.
In the end this system still relies on the Foreign Affairs Ministry in Mexico and the U.S. State Department and the respective Congresses of each country to fund activities.
There have been thoughtful attempts to update the work and reach of the IBWC. In 2015, the agency established three working groups related to water quality, sediment, and sand solid waste, all comprised of stakeholders from both side of the border through its Minute 320.
A Binational Core Group was established, comprising representatives of the IBWC, federal, state and local authorities and non-governmental organization from both countries, “to assist with the formulation of recommendations regarding transboundary issues in the Tijuana River Basin.”
Power of the purse
And while mechanisms to provide for the participation of citizens and public interest groups and recommendations can be helpful, these mechanisms do not have the power of the purse.
Moreover, some NSAs, for all their good intentions, may be unaccountable to citizens and the community.
It may be time again for the two country partners to work out a new treaty to create a permanent set of solutions for the ongoing sewage spills, rather than rely on the understaffed IBWC.
The entry into force of the 2020 United States-Mexico-Canada Agreement , the trade agreement among three sovereign States that replaced the North American Free Trade Agreement is a case in point.
The new treaty resulted in a $300 million fund to address the Tijuana River sewage crisis, breathing new life into a set of remedies to begin to solve this seemingly never ending problem. Of course, those funds, after a procurement bidding process, are earmarked for contracts to corporations, other NSAs, to re-address the sewage issues.
Time for a new response
And the Mexican authorities need to step up their efforts to keep the country’s toxic waste from seeping into the U.S. side.
It is time to dispense with the endless cycles of feasibility studies and studies of those studies.
The binational region, the shared environment, and the quality of life on both sides of our shared border necessitate a new and robust binational response. It is time for both countries to not rely on the plethora of NSAs on the ground (or rather mired in the sewage).
After all, a safe and healthy environment is one of the public goods that sovereign States should provide to its citizens as part of the social contract.
James Cooper is Professor of Law and Director of International Legal Studies at California Western School of Law in San Diego. He is the author of Same as It Ever Was, a law review article on the Tijuana River sewage crisis that was published last year in the Cardozo International and Comparative Law Review and co-director and producer of an accompanying documentary video.
