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FEATURED STORY September 30, 2022

Turning The Tide: Court Battle For Cleaner Water

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THE SITUATION:

On the coast of southern California, and along the border with Mexico, residents and tourists enjoy spending time at public parks and beaches—when water conditions aren't hazardous to their health.

In 2017, the Tijuana Slough National Wildlife Refuge and the city of Imperial Beach, California, experienced 167 days of park closures and 64 days of beach closures because of a steady discharge of water pollutants flowing through the Tijuana River Valley. Massive spills of up to 240 million gallons of raw sewage also contaminated area waters, even reaching the Pacific Ocean. More recently, the Tijuana Sloughs—part of a large, protected area of wetlands south of San Diego—were closed due to sewage contamination over more than 500 days in two years.

These are just a few examples after a decade of water quality violations, taking a toll on human health, the environment, residents, tourism, and even training for lifeguards and Navy SEALs.

THE CHALLENGE:

Surfrider Foundation, a grassroots advocacy organization and longstanding McDermott pro bono client, took action to address these repeated violations of United States Clean Water Act (CWA) standards, and of the National Pollution Discharge Elimination System (NPDES) permit issued to the International Boundary and Water Commission-United States Section (USIBWC), pursuant to the CWA. In addition to other responsibilities, USIBWC is the federal agency that oversees and maintains the US portion of the Tijuana River and a plant for treating sewage before discharging it into the Pacific Ocean.

Surfrider asked a pro bono team* at McDermott, led by Margaret Warner, Jiaxiao Zhang and Krista Reed, to help them bring a citizen lawsuit against USIBWC under a provision of the CWA.

At around the same time, a group of southern California cities with the San Diego Unified Port District, and the state of California (on behalf of the Regional Water Quality Board, which administers USIBWC's NPDES permit), filed related lawsuits against USIBWC under the CWA and Resource Conservation and Recovery Act. The State Lands Commission and the City of San Diego also intervened in the related lawsuits. With plaintiffs from three parallel lawsuits involved, Surfrider and its pro bono team needed to coordinate closely with legal, policy and technical representatives for the public entities and cities.

OUR OBJECTIVE:

Surfrider and the McDermott team demanded increased water quality monitoring, improved infrastructure, increased treatment processes and facilities, and increased capacity at the border to avoid and address issues like raw sewage spills. To make the necessary changes, USIBWC needed funding to improve infrastructure.

THE OUTCOME:

After a court battle that began in 2018 and lasted nearly four years—including two prolonged stays that partially addressed the parties' ability to work during government shutdowns, the COVID-19 pandemic, and environmental scoping and evaluative studies of potential solutions—Surfrider and the other plaintiffs worked out a resolution.

Heartened by increased activity under new USIBWC leadership, including operational, reporting and monitoring activities at the sewage treatment plant that resulted from negotiations, Surfrider and the other plaintiffs agreed to dismiss the cases against USIBWC. In exchange, among other actions over a seven-year period, USIBWC agreed to construct and maintain berms and deploy sandbags and other equipment to prevent or minimize flow events, increase routine maintenance, reduce more than 75% of contaminated pollution year-round, conduct additional water quality monitoring and regularly provide stakeholders with information on its progress.

The settlement agreement also aligned with an influx of $300 million in committed federal funding for implementing the US Environmental Protection Agency's (EPA's) Comprehensive Infrastructure Solution, which aims to reduce the amount of polluted transboundary flows entering US sections of the Tijuana River Valley, and other legislative efforts.

DIG DEEPER:

Surfrider's team was prepared to go to trial against USIBWC in the fight for clean water, but they also needed to comply with the court's early neutral evaluation program. The court mediated conferences and settlement negotiations with USIBWC's counsel at the US Department of Justice (DOJ), Surfrider and the other plaintiffs, which were helpful to work through the issues and potential solutions.

Initially, USIBWC and DOJ were elusive in potential compromises. In addition to budgetary limitations and USIBWC's reluctance to commit to actions requiring coordination on bilateral issues with its Mexican counterparts, DOJ was wary of how the outcome in this matter could set precedent for other administrative agencies facing citizen lawsuits.

Standing alongside the state, cities, and other public entity plaintiffs, the Surfrider team made a strong, unified case in their demands of USIBWC. Ultimately, the ongoing litigation with multiple parties put pressure on the federal government to find a comprehensive, global solution that would allow for a full resolution of the case, rather than settling some of the claims or settling with just one or two of the three plaintiffs' groups. Throughout the process, Surfrider leveraged its unique insights from decades of championing clean water in the Tijuana River Valley.

Once the $300 million in EPA funds were approved, additional negotiated equipment had been procured and used, and it became clear to Surfrider that the government solution should come close to the full-scale Surfrider Stakeholder Solution they had tailored for the Tijuana River Valley, it made sense to settle. With the agreement in place, Surfrider can turn its attention to encouraging and monitoring those efforts and applying greater resources toward continued advocacy.

"McDermott's outstanding commitment and talented professionals enabled Surfrider Foundation to bring suit to address the most egregious water quality violations in the nation," said Angela Howe, senior legal director for Surfrider Foundation. "Ultimately, this litigation will help solve the chronic beach closures, immense threat to public health and long-standing water quality violations in the Tijuana River Valley. We are exceedingly grateful for McDermott's pro bono efforts on our behalf."

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