City of Imperial Beach v. Int'l Boundary & Water Comm'n, Case No.: 18cv457 JM (JMA)

• Decision Date: 11 December 2018
• Docket Number: Case No.: 18cv457 JM (JMA)
• Citation: 356 F.Supp.3d 1006
• Court: U.S. District Court — Southern District of California
• Parties: CITY OF IMPERIAL BEACH; San Diego Unified Port District; and City of Chula Vista, Plaintiffs, v. INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES SECTION; and Veolia Water North America West, LLC, Defendants.

356 F.Supp.3d 1006

CITY OF IMPERIAL BEACH; San Diego Unified Port District; and City of Chula Vista, Plaintiffs,

v.INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES SECTION; and Veolia Water North America West, LLC, Defendants.

Case No.: 18cv457 JM (JMA)

United States District Court, S.D. California.

Signed December 11, 2018

Matthew K. Edling, Meredith Segan Wilensky, Timothy Robin Sloane, Victor M. Sher, Sher Edling LLP, San Francisco, CA, John N. Carter, Office of the Port Attorney, San Diego, CA, for Plaintiffs.

Debra J. Carfora, U.S. Department of Justice Environment & Natural Resources Div., Andrew Stephen Coghlan, Environmental Defense Section US Department of Justice, Washington, DC, Thomas Bienert, Bienert Miller & Katzman, PLC, San Clemente, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO DISMISS

JEFFREY T. MILLER, United States District Judge

On September 26, 2018, Defendants the International Boundary & Water Commission – United States Section ("USIBWC") and Veolia Water North America – West, LLC ("Veolia") (collectively, "Defendants") filed separate motions to dismiss. (Doc. Nos. 32, 33.) Plaintiffs the City of Imperial Beach, San Diego Unified Port District, and the City of Chula Vista (collectively, "Plaintiffs") oppose the motions. (Doc. No. 37.) Having carefully considered the matters presented, the court record, and the arguments of counsel, the court grants in part and denies in part both motions.

BACKGROUND¹

This case arises out of the management and operation of facilities in the Tijuana River Valley intended to direct and treat water flowing from Mexico across the international border into the United States. On September 27, 2017, Plaintiffs sent Defendants a Notice of Intent ("NOI") indicating Plaintiffs' intent to sue Defendants for violations of the Clean Water Act ("CWA"), 33 U.S.C. § 1365(b), and the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. § 6972(a)(1)(B). (Doc. No. 31.) The NOI informed Defendants that their discharge of pollutants into the Tijuana River Valley violated both the CWA and RCRA. On March 2, 2018, Plaintiffs initiated this action against Defendants.

(Doc. No. 1.) On June 12, 2018, USIBWC and Veolia moved to dismiss the First Amended Complaint ("FAC"), arguing in part that Plaintiffs failed to state a RCRA claim. On August 29, 2018, the court granted in part and denied in part Defendants' motions to dismiss, dismissing Plaintiffs' RCRA claim with leave to amend. (Doc. No. 26.)

On September 12, 2018, Plaintiffs filed the operative Second Amended Complaint ("SAC"). (Doc. No. 31.) The SAC alleges three causes of action: (1) against USIBWC, for discharges of pollutants from the flood control conveyance without a National Pollutant Discharge Elimination System ("NPDES") permit in violation of the CWA, 33 U.S.C. §§ 1311(a), 1342 ; (2) against both Defendants, for discharges of pollutants from the canyon collectors in violation of the CWA and the NPDES Permit; and (3) against both Defendants, for contribution to an imminent and substantial endangerment in violation of RCRA. Defendants' motions to dismiss followed on September 26, 2018.

I. The Parties

A. Plaintiffs

The City of Imperial Beach is a California General Law City and municipal corporation, organized and existing by virtue of the laws of the State of California. The San Diego Unified Port District is a public entity created by the San Diego Unified Port District Act, California Harbors & Navigation Code, Appendix 1, § 1 et seq. The City of Chula Vista is a California Charter City and municipal corporation, organized and existing by virtue of the laws of the State of California and the Charter of the City of Chula Vista.

B. Defendants

The USIBWC is an agency and instrumentality of the United States government charged with addressing transboundary issues arising out of agreements between the United States and Mexico, including the Treaty of February 3, 1944, for the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande ("1944 Treaty"). Veolia is a limited liability company incorporated in Delaware and headquartered in Massachusetts. Veolia contracts with USIBWC to operate and maintain the South Bay International Wastewater Treatment Plant ("South Bay Plant") and its associated facilities.

II. The International Boundary and Water Commission

The International Boundary and Water Commission ("Commission") is a bi-national body comprised of the USIBWC and the Comisión Internacional de Límites y Aguas ("CILA") in Mexico. Both sections of the Commission exercise the rights and obligations of their governments under the 1944 Treaty. Under the 1944 Treaty,

Neither Section [the USIBWC or CILA] shall assume jurisdiction or control over works located within the limits of the country of the other without the express consent of the Government of the latter. The works constructed, acquired or used in fulfillment of the provisions of this Treaty and located wholly within the territorial limits of either country, although these works may be international in character, shall remain, except as herein otherwise specifically provided, under the exclusive jurisdiction and control of the Section of the Commission in whose country the works may be situated.

(Doc. No. 33-2 ("1944 Treaty") Art. 2.)

III. South Bay Plant

Decisions of the Commission are recorded in Minutes. In 1990, the Commission entered into an agreement known as Minute 283 to address the border sanitation problem in San Diego, California, and Tijuana, Baja California. (Doc. No. 16-2 ("Minute 283").) Among other things, Minute 283 led to the construction of the South Bay Plant.

The South Bay Plant is located in the Tijuana River Valley in the City of San Diego, San Diego County, California. The South Bay Plant was designed to handle 25 million gallons per day, based on a 30-day average, "to treat sewage generated in excess of the capacity" of facilities in Mexico. (Minute 283 at 4.) USIBWC owns the South Bay Plant, and Veolia operates it. The South Bay Plant and its associated facilities are subject to the terms of NPDES permit No. CA0108929 (the "NPDES Permit"). The NPDES Permit authorizes discharges of pollutants at the South Bay Ocean Outfall only, and only after such pollutants have gone through secondary treatment at the South Bay Plant. All other discharges are prohibited.

(SAC at 17.)

The primary influent to the South Bay Plant is sewage from Mexico. (SAC ¶ 58.) While a CILA Diversion exists in Mexico to divert flows in the Mexican Tijuana River into the transboundary sewage system, it "frequently malfunctions, allowing sewage to flow past the Diversion and across the U.S./Mexico Border." (SAC ¶ 59.)

C. Canyon Collectors

Water that crosses the border into the United States from Mexico west of the flood control conveyance does so at six discernible locations: Yogurt Canyon, Goat Canyon, Smuggler's Gulch, Canyon Del Sol, Silva Drain, and Stewart's Drain. USIBWC owns and Veolia operates and maintains canyon collectors at five of these locations, excluding Yogurt Canyon.

(SAC at 16.)

The canyon collectors are among the facilities that operate under and are subject to the South Bay Plant NPDES Permit. They are "designed to capture and detain polluted wastewater the moment it crosses the U.S./Mexico Border into the United States." (SAC ¶ 66.) Each concrete collector abuts the border and spans the opening of one of the drainage points. The canyon collectors collect and direct wastewater into a shallow detention basin. Wastewater in the detention basin is then directed to a screened drain inlet ("collector inlet") regulated by a valve. When open, the water in the detention basin is accepted into a pipe system and conveyed to the South Bay Plant for treatment and eventual discharge at the South Bay Ocean Outfall. When closed, the water cannot drain into the treatment system, and instead overflows the detention basin and travels into the downstream drainages. Waste that does not flow through the treatment system collects in the canyon collector basins.

IV. Flood Control Conveyance

In 1978, USIBWC constructed a flood control conveyance designed to capture as much as 135,000 cubic feet of water per second from the Tijuana River as it crosses the border from Mexico into the United States. (SAC ¶ 43.) The flood control conveyance is a discrete, concrete-lined conveyance with banked sides that begins at the United States border with Mexico. It directs water, sewage, and other waste into an area of the Tijuana River Valley west of the historical course of the Tijuana River, in which the Tijuana River had not previously flowed.

The flood control conveyance is not subject to the NPDES Permit, and Veolia is not involved in its operation. Plaintiffs allege that USIBWC routinely discharges pollutants and solid and/or hazardous waste, captured from the Mexican portion of the Tijuana River, out of the flood control conveyance.

At times, the flow of wastewater in the flood control conveyance is slowed or completely halted. USIBWC recently constructed temporary earthen berms at the border between the United States and Mexico to reduce the volume of flow into the flood control conveyance from the Tijuana River in Mexico, redirecting those flows south into the CILA Diversion. However, Plaintiffs note that the berm is not designed to protect against high volume flows and may wash out with even the slightest amount of precipitation. The berm also temporarily detains wastewater, causing water to pool in the flood control conveyance. In addition, Plaintiffs allege that the structure of the flood control conveyance was intentionally designed to slow the flow of water.

(SAC at 14.)

LEGAL STANDARDS

I. Rule 12(b)(1) – Lack of Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction. "Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only...