TRV Litigation Update - July 2020

The Surfrider Foundation is suing the U.S. International Boundary and Water Commission (USIBWC) to address violations of the Clean Water Act affecting the waters of the U.S.-Mexico border region. The lawsuit alleges that the USIBWC has allowed unpermitted discharges into the waters of the U.S. through its Flood Control Conveyance in violation of the Clean Water Act (CLICK HERE for more background on the lawsuit). 

Recently, the parties to the case have filed a joint motion for a 12-month stay. A stay is the act of temporarily stopping a judicial proceeding through the order of a court.

The request for a joint stay was based on the enactment of the United States-Mexico-Canada Agreement (USMCA) on January 29, 2020, which appropriated $300 million to the Environmental Protection Agency (EPA) to address transboundary pollution in the Tijuana River Valley.

The reason for the parties’ request is as follows:

• Congress recently appropriated $300 million to the EPA to address transboundary pollution. The EPA, which is not a party to the case, initiated a process to evaluate the feasibility of potential infrastructure projects that would address the pollution that underlies the lawsuit.
• The Parties in the lawsuit believe that staying the litigation while the EPA process moves forward is the fastest and most efficient means of addressing future transboundary flows in the Tijuana River Valley, and is important to facilitate full engagement by all stakeholders.
• Further, the stay will allow the EPA to gather information that may reduce disputed factual issues, including those that may require expert testimony.
• Additionally, the USIBWC committed to spend up to $2 million in the near-term to purchase equipment it needs to mitigate transboundary pollution while the EPA Process is underway. Surfrider intends to monitor the USIBWC and hold them to this commitment. If, at any time during the stay, we conclude that the USIBWC is not upholding their end of the bargain, we can end the stay prematurely and resume litigation.

Surfrider supports the temporary stay in our Clean Water Act litigation and looks forward to charging ahead with other parts of our campaign, including engagement in the EPA process under Section 821 of the USMCA.  We continue our ardent commitment to fight for clean border water.