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36–686 PDF 2007

ADDRESSING SEWAGE TREATMENT IN

THE SAN DIEGO - TIJUANA BORDER

REGION: IMPLEMENTATION OF

TITLE VIII OF PUB. L. 106-457, AS

AMENDED

(110–55)

HEARING

BEFORE THE

SUBCOMMITTEE ON 

WATER RESOURCES AND ENVIRONMENT

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JULY 10, 2007

Printed for the use of the 

Committee on Transportation and Infrastructure

(

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

JULIA CARSON, Indiana 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ACURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

VACANCY 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

RICHARD H. BAKER, Louisiana 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

(II)

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT

EDDIE BERNICE JOHNSON, Texas, Chairwoman 

GENE TAYLOR, Mississippi 

BRIAN BAIRD, Washington 

DORIS O. MATSUI, California 

JERRY F. COSTELLO, Illinois 

TIMOTHY H. BISHOP, New York 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

MAZIE K. HIRONO, Hawaii 

HEATH SHULER, North Carolina 

HARRY E. MITCHELL, Arizaon 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

JERRY MCNERNEY, California 

ELEANOR HOLMES NORTON, District of 

Columbia 

BOB FILNER, California 

ELLEN O. TAUSCHER, California 

MICHAEL E. CAPUANO, Massachusetts 

GRACE F. NAPOLITANO, California 

MICHAEL A ARCURI, New York 

JAMES L. OBERSTAR, Minnesota 

(Ex Officio) 

RICHARD H. BAKER, Louisiana 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

FRANK A. LOBIONDO, New Jersey 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TODD RUSSELL PLATTS, Pennsylvania 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

JOHN L. MICA, Florida 

(Ex Officio) 

(III)

(V)

CONTENTS Page

Summary of Subject Matter .................................................................................... vi 

TESTIMONY 

Marin, Carlos, United States Commissioner, International Boundary and 

Water Commission, United States and Mexico ................................................. 6

Nastri, Wayne, Regional Administrator, U.S. Environmental Protection Agency, Region 9 ........................................................................................................... 6

Simmons, Jim, Managing Partner, Bajagua, LLC ................................................ 27

PREPARED STATEMENT SUBMITTED BY MEMBERS OF CONGRESS 

Boozman, Hon. John, of Arkansas ......................................................................... 36

Costello, Hon. Jerry F., of Illinois .......................................................................... 40

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Marin, Carlos ........................................................................................................... 41

Nastri, Wayne .......................................................................................................... 48

Simmons, Jim ........................................................................................................... 50

SUBMISSIONS FOR THE RECORD 

Simmons, Jim, Managing Partner, Bajagua, LLC, Power Point slide presentation ..................................................................................................................... 96

Development Agreement between the United States Section of the International Boundary and Water Commission, United States and Mexico, and 

Bajagua LLC, submitted by the Subcommittee ................................................. 109

vi


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36686.002
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36686.003
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36686.004
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36686.005
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36686.006
(1)

ADDRESSING SEWAGE TREATMENT IN THE 

SAN DIEGO TIJUANA BORDER REGION: IMPLEMENTATION OF THE TITLE VII OF P.L. 

106-457 AS AMENDED 

Tuesday, July 10, 2007

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

SUBCOMMITTEE ON WATER RESOURCES AND ENVIRONMENT, 

Washington, DC. 

The Subcommittee met, pursuant to call, at 2:13 p.m., in Room 

2167, Rayburn House Office Building, Hon. Eddie Bernice Johnson 

[Chairwoman of the Subcommittee] Presiding. 

Ms. JOHNSON. I call the Subcommittee to order, and I would like 

to ask unanimous consent that Mr. Bilbray join us up here. 

This afternoon, the Subcommittee is meeting to discuss the issue 

of sewage treatment in the San Diego and the Tijuana border region. Over the years, the Subcommittee has become well aware of 

the sewage treatment problems faced by the San Diego-Mexico border region. We have also witnessed how the U.S.-Mexico border region has experienced tremendous growth over the past few decades 

with the cities of San Diego and Tijuana, Mexico, though on opposite sides of the border, growing closer together both physically and 

economically and linking the faiths of the two cities. 

We have also discovered that what happens in one city has had 

an impact on the other, and this is especially true in the case of 

the sewage treatment needs of the border region. Unfortunately, 

the wastewater treatment systems for the City of Tijuana, Mexico 

have not kept pace with the city’s growing population. Untreated 

sewage flowing from Mexico to the Tijuana River and into the Pacific Ocean has adversely impacted the South Bay communities of 

San Diego County, the river valley, estuary, and the coastal waters 

of the United States. These flows continue to pose a serious threat 

to public health, to the economy and to the environmental region. 

To address these problems, this Committee has twice considered 

and approved legislation sponsored by our colleague, Mr. Filner, 

and other Members of the San Diego delegation to, once and for all, 

stem the flowing tide of untreated or partially treated sewage that 

enters this country every day. 

The proposal advocated by Mr. Filner and by his colleagues from 

the San Diego community is a comprehensive attempt to address 

both the short-term and the long-term sewage treatment needs of 

the region, taking into consideration the expectations of continued 

population growth in the next few decades. Unfortunately, 7 years 

2

after legislation was enacted to implement this proposal, the citizens of the San Diego region continue to wait for a comprehensive 

solution to this issue and continue to face the likelihood of beach 

closures and waters contaminated with untreated sewage. Over the 

years, the Subcommittee has continued to follow implementation of 

the Tijuana River Valley Estuary and the Beach Sewage Cleanup 

Act. In fact, this is the second time that this Subcommittee has 

asked the administration to provide an update on the implementation of the law. 

I hope that today’s hearing will shed light on why progress seems 

to be slowed and why concerns have been raised on whether this 

administration might be changing its position on how best to solve 

this problem. 

I will ask Mr. Boozman for a statement. 

Mr. BOOZMAN. Thank you, Madam Chair. 

For years, Congress has been trying to address a public health 

and environmental problem that exists along the U.S.-Mexican border. Raw or partially treated sewage from the Tijuana, Mexico area 

flows into the United States and ends up on California beaches. In 

2000, Congress addressed this problem by authorizing the United 

States to contract with a facility in Mexico for wastewater treatment services that would meet Clean Water Act standards. That 

authorization was contained in public law 106-457, the Tijuana 

River Valley Estuary and Beach Sewage Cleanup Act of 2000. That 

law required the United States and Mexico to negotiate a new treaty minute and a contract for wastewater treatment services in the 

Tijuana, Mexico area. The treaty negotiations were completed in 

2004. 

However, before a contract for wastewater treatment services 

could be signed, the Tijuana River Valley Estuary and Beach Sewage Cleanup Act authorization had to be extended and updated. 

This Committee reported legislation H.R. 4794, which provided the 

necessary authority. The project in this legislation was not controversial, and the bill was enacted into law in late 2004. It became 

public law number 108-425. 

It is now 7 years after this wastewater treatment project was 

first authorized. Over these past 7 years, the parties have been 

working towards implementing the wastewater treatment project 

seemingly without much controversy. Now, all of a sudden, at this 

late date, for reasons that have not been well-articulated which we 

look forward to hearing of today, it appears that certain parties 

may be looking to fundamentally change the direction of this 

project. Many are concerned that changing the direction of the 

project at this late date could mean even further delays in addressing the sewage pollution problems in the San Diego border region. 

Today, we have asked for testimony from three of the principal 

parties involved in this issue—the United States section of the 

International Boundary and Water Commission, which operates 

under the foreign policy guidance of the Department of State and 

represents the United States and boundary water, sanitation, 

water quality, and flood control issues in the border region with 

Mexico; the EPA, which is responsible for implementing water 

quality issues under the Clean Water Act; and the Bajagua Project, 

LLC, the company that has contracted with the IBWC to provide 

3

wastewater treatment services in the San Diego-Tijuana border region. 

We want to hear from the witnesses about the status of implementing the wastewater treatment project authorized by the Tijuana River Valley Estuary and Beach Sewage Cleanup Act in 2000 

as amended in 2004, including: 

Why is it taking so long to get the project built? What issues 

stand in the way of completing the project? Why are some looking 

to fundamentally change the direction of this project at this late 

date? When can we expect to see the project completed? How much 

will the project cost by the time it is finally completed? Will the 

project satisfy all of the region’s wastewater and treatment needs 

and resolve the longstanding sewage pollution problems in the region? 

Thank you, Madam Chair. 

Ms. JOHNSON. Thank you very much. 

The chair now recognizes Congressman Filner. 

Mr. FILNER. Thank you, Madam Chair, and I strongly and greatly appreciate this hearing. 

What may seem like a parochial issue in this Member’s district, 

I think, is really an international problem. We are dealing, of 

course, with the Mexico-U.S. border region, severe environmental 

issues at that border, all across it—water and sewage is one of 

them—and the solution of this problem can be a model for the way 

the two countries cooperate or it could be a model for how we continue not to make progress on these very important issues. 

When you talked about the previous legislation and my bill, actually, they were very closely coordinated with our colleague’s from 

San Diego, Mr. Bilbray. I think, together, we have now 50 years 

that we have been up to our neck or sometimes drowning in sewage, and I would ask unanimous consent that he be allowed to sit 

with the Committee during this hearing. 

Ms. JOHNSON. Any objections? I hear none. 

Mr. FILNER. Thank you, Madam Chair. 

This is an issue which has plagued San Diego and our region for 

60, almost 70 years probably. We have the Tijuana River that flows 

north from San Diego—I am sorry—north from Mexico through the 

City of Tijuana and then through my district, emptying out to the 

Pacific Ocean. When Tijuana does not have sufficient sewage capacity, all of the sewage that may be dumped in strange places in 

that city end up in the Tijuana River, again, contaminating our 

beaches and presenting health problems for our citizens. It took 

many, many, many years to come to a consensus to build a waste 

treatment plant on our side of the border, which was authorized at 

the beginning of the 1990s and which opened up, I guess, around 

1997. We broke ground in 1995. Okay. When the plant opened, 

Madam Chair, it was obsolete. 

It treated half of the flows that we needed it to, and it treated 

it only to what is called the ′′advanced primary level′′ and was not 

meeting the secondary levels required by law, but Congress had 

put a cap on expenditures, and that is as far as they could go, so 

we were left with the problem of not only doubling the capacity of 

an already existing plant, but in upgrading the level of treatment. 

I would say, for almost a decade, we have wrestled with those 

4

questions, and the result were the laws that you indicated which 

were passed by voice vote in the Congress, that were signed by two 

presidents—one Democrat and one Republican—and that were supposed to be the law of the land which mandated the building of a 

secondary treatment facility in Mexico that would be carried out by 

a private firm and that would bill the United States for treating 

the sewage. It seemed to us to be an incredibly win, win, win, win, 

win, win proposal. 

Not only would we get the plant built at the levels required by 

law in the United States, but it would be done in the most environmentally sensitive way that we know about; it would be done in 

Mexico so as not to take up land for that in the United States, and 

in fact, it would produce water that could be recycled for Mexico. 

This is a major problem in both the City of Tijuana, through the 

State of Baja and in Mexico in general, and this was an incredibly 

innovative way to deal with that issue. None of the plans that have 

ever existed in the United States called for the recycling of water 

to tertiary standards. 

So this helps Mexico; it helps the United States, and it would be 

done over time so that Congress would not be responsible for one 

major hit in terms of money. IBWC, the International Boundary 

and Water Commission, was supposed to take charge of that, and 

it has gone a long way toward making that project, in fact, close 

to implementation. It decided that it was the environmentally preferred alternative. It gave all of the necessary legal decisions to go 

ahead, and we thought we were going to, in fact, meet a court-mandated rule in San Diego—a court-mandated provision—that calls 

for secondary treatment by September of next year. 

For some reason—and that is why we are here today—all of that 

has come to halt. As to what looked like the implementation after 

more than a decade of the discussion of not only meeting the Clean 

Water Act standards but of allowing tertiary treatment in Mexico, 

all of that now is at a standstill, and we are back to where we were 

maybe before 1990. That is why we are here today, to figure that 

out and to figure out how to move forward from there. 

I appreciate again your allowing us to focus on this issue. 

Ms. JOHNSON. Thank you, Mr. Filner. 

Pursuant to the unanimous consent request, I recognize Mr. 

Bilbray for an opening statement. 

Mr. BILBRAY. Thank you, Madam Chair, and I appreciate the 

Committee and the Chair for allowing me to sit with the Committee. 

Madam Chair, I no longer have the privilege of representing the 

southern region of San Diego County, but I do have a history with 

this, not only as an elected official, but I grew up on the border, 

as a young man, going down to the beach and seeing the big red 

signs with ′′pollution′′ on it, not from Americans but from a foreign 

government. My involvement with this issue goes back to when I 

was 25 years old as a new city council member in 1976. In 1980, 

I, literally, almost went to jail over trying to raise awareness of 

this issue as a new mayor at 29 years old, saying, ′′Where is the 

EPA? Where is the IBWC? Where is the environmental community? Does anybody care about this working class neighborhood?′′

5

The fact is that, in 1980, we had 42 million gallons of raw sewage pouring onto our beaches in the summer. By 1985, we finally 

got everybody to the table, and the United States and Mexico negotiated a minute order that basically said, ′′Mexico, we know you 

want to treat your sewage on your side. We have concerns about 

your discharge issues and their impact on the estuary. So send over 

your sewage. We will treat it.′′ Mexico said, ′′Fine, but we want a 

guaranteed right to always call it back because we want to use this 

for reclamation.′′ In fact, the issue was raised by then Ambassador 

Gavin, as you will remember, because there was a request for a 

loan to pump water into Tijuana from the Colorado River, and the 

big issue was ′′What are you going to do with this water when you 

get it? You cannot handle the sewage you have now.′′ That agreement was put together where we said we would treat it, that Mexico would provide the pipes and get it to that location. 

Well, then you ended up having the situation of changing technology. Let me sensitize this. Mr. Filner’s community is willing to 

take a sewage treatment plant in their neighborhood to treat another country’s sewage. It takes extraordinary political, you know, 

bravery of the Member from San Diego to do this. What happened 

was that we saw that there was an alternative to have expandable—we know that 25 mgd is just the first step. You have got to 

go out beyond that. 

In looking at that, the proposal was to use a public-private sector, treat as much of it as possible in Mexico—after all, that is 

where it was—and on election day, the day I was voted out of office, Bill Clinton signed into law what I authored, with Mr. Filner’s 

coauthorship, to have this public-private partnership signed into 

law, and frankly, they signed it into law and waited until that day 

because they were afraid, I am sure, that there might be political 

benefits to a candidate at that time, but with that aside, it got 

done. I, actually, worked with and for Bajagua at trying to get the 

Bush administration to be as involved in this issue as the Clinton 

administration was because the Clinton administration actually 

ended up being very supportive. 

The foot-dragging that has gone on consistently on this issue is 

just extraordinary while the beaches are still being closed, and I 

just have to say that I think that this is an example that a lot of 

people should look to, the fact that, in the 30 years I have been 

there and in the 60 years we have had this problem, I have never 

seen a bureaucrat who has been fired or anybody who has not gotten paid because the sewage problem was not taken care of. At 

least with the public-private sector, it is an outcome-based environmental strategy. If the sewage is not treated, the company does not 

get paid, and you know, if the company does not get paid, somebody is going to get fired down through the process. There is a little incentive there to protect the environment. That is what we are 

looking at here, but now what is being proposed is to go back to 

10 years ago to a plan that had been worked out in 1985 and to 

only go with a 25 mgd and just take care of what is important for 

the law, not for the environment and, basically, finish this job and 

walk away from it. 

That is my concern, and I think that we have got to really talk 

about where do we go from here. Everybody understands that 25 

6

mgd does not do the job. We have a moral obligation to protect our 

people from a foreign government’s impact, and that means a lot 

more than 25 mgd. 

So I appreciate the chance to be able to be here. Frankly, my 

concern is that my children are second generation sewage kids. I 

do not want my grandchildren to be surfing in Mexican sewage in 

the next decade and be the third generation. With your help, 

Madam Chair, we will be able to stop that generational gap, okay? 

Thank you. 

Ms. JOHNSON. Thank you very much. 

We are pleased to have two very distinguished witnesses on our 

first panel today. First, we have the Honorable Carlos Marin, the 

Commissioner of the United States section of the International 

Boundary and Water Commission. Next, we have Mr. Wayne 

Nastri, the Administrator of Region 9 of the U.S. Environmental 

Protection Agency. 

We are pleased that you were both able to make it this afternoon. Your full statements will be placed into the record, so we ask 

you, if you will, to try to keep your remarks to a summary of about 

5 minutes each. We will continue to proceed in the order in which 

the witnesses are listed on the call of the hearing.

TESTIMONIES OF CARLOS MARIN, UNITED STATES COMMISSIONER, INTERNATIONAL BOUNDARY AND WATER COMMISSION, UNITED STATES AND MEXICO; AND WAYNE NASTRI, 

REGIONAL ADMINISTRATOR, U.S. ENVIRONMENTAL PROTECTION AGENCY, REGION 9

Ms. JOHNSON. So, Mr. Marin, you may proceed. 

Mr. MARIN. Madam Chairwoman and Members of the Subcommittee, thank you for the opportunity to discuss the U.S. section of the International Boundary and Water Commission’s efforts 

to address the ongoing problem of Tijuana sewage and the particular steps we have taken to implement the Tijuana River Act. 

I would like to begin by noting a few points. 

I am a licensed Professional Engineer and a 27-year career employee of the U.S. International Boundary and Water Commission. 

I have had firsthand experience in building wastewater treatment 

plants in Mexico from my days as U.S. Project Manager for the 

IBWC at a treatment facility in Nuevo Laredo, Mexico. The IBWC 

has over a century of experience in binational cooperation and is 

engaged in a number of joint projects. Any binational project undertaken by the IBWC that is located in Mexico is under the jurisdiction of the Mexican section. My authority stops at the border. 

Pursuant to the Clean Water Act and international agreements 

with Mexico and at a cost shared by the U.S. and Mexican governments, the U.S. IBWC has constructed and now operates the South 

Bay International Wastewater Treatment Plant on the U.S. side of 

the border off the San Diego coast, and it treats 25 million gallons 

per day of sewage from the Tijuana area that would otherwise flow 

untreated into the United States and discharge that effluent in an 

outfall approximately 3.5 miles into the Pacific Ocean. 

Due to the urgent need to provide some level of treatment, operation began in 1997 at the advanced primary level. In late 2000, 

Congress enacted the public law to provide for the secondary treatVerDate 0ct 09 2002 17:30 Feb 13, 2008 Jkt 000000 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 P:\DOCS\36686 HTRANS1 PsN: JASON
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ment of the effluent in Mexico, if such treatment is not provided 

in the United States, as well as additional Tijuana sewage flows 

under a private-public partnership arrangement. 

To achieve the objective of the public law, the U.S. IBWC concluded a new agreement with Mexico, completed the final environmental impact statement and issued the Record of Decision, in 

which was its election of the construction of the treatment facility 

in Mexico. The U.S. IBWC entered into a development agreement 

with Bajagua, LLC, on February 14th, 2006, giving the company 

exclusive rights to pursue the development of the Mexican facility. 

It should be noted that this is a highly technical and complicated 

project. The IBWC does not view its role as being limited to that 

of a conduit or a pass-through of U.S. funding. The IBWC has an 

international law responsibility to ensure that the project is developed in a viable, effective and professional manner and that all elements are considered with applicable U.S. and Mexican law. It cannot be overemphasized that IBWC is under a court order to achieve 

full compliance with the Clean Water Act by September 30th, 2008. 

In light of this legislation, we face possible fines and other sanctions for noncompliance. 

A number of tasks remain to be accomplished under the development agreement. Bajagua notified us that it would be unable to 

meet the May 2nd, 2007 milestone set forth in the development 

agreement, requesting an extension to the deadline, and they subsequently informed us that it would be unable to achieve compliance of the September 30th, 2008 court-ordered deadline. Fortunately, the administration has begun to consider a contingency 

plan for achieving compliance. The President’s fiscal year 2008 

budget requests funding for the U.S. IBWC to begin construction 

of secondary-level treatment at the existing South Bay facility, 

which is viewed as a more efficient and less expensive solution. 

This agency has worked diligently to advance the public law in 

both sections of the IBWC and has invested a significant amount 

of staff time and resources to that effort. However, due to the number of factors that are beyond the U.S. IBWC’s control, a permanent solution proves to be evasive. We know much more today 

about the complexity of implementing this legislation that was 

passed in 2000. In 2000, we did not know the true costs of the 

Bajagua Project to the American taxpayers. Yet, today, based on 

the financial analysis conducted by an independent consultant, we 

know that the project has the potential of reaching $1 billion over 

a 20-year period of a sole-source contract. We also do not know how 

long it will take to make the Mexican facility a reality. I cannot, 

in all honesty, tell you that, nor can Bajagua. There are many critical steps still pending which require Mexico’s full participation, 

support and concurrence. One cannot predict the alacrity of the 

Mexican bureaucracy, a bureaucracy we must engage on the Federal, State and local levels and which often changes with each election cycle. 

In closing, let me state that our ultimate goal is to afford the citizens of Southern California protection from renegade Mexican sewage and to operate our facility in accordance with U.S. law. 

8

Madam Chair, thank you for the opportunity to testify today. I 

would be pleased to respond to any questions you or other Members of the Subcommittee may have. 

Ms. JOHNSON. Thank you very much. 

The Chair now recognizes Mr. Wayne Nastri, Administrator of 

Region 9, San Francisco. 

Mr. NASTRI. Thank you, Madam Chair and Members of the Subcommittee, and Congressman Bilbray. 

It gives me great pleasure to be here today before you to describe 

the efforts the EPA has undertaken to address the issues here in 

Tijuana-San Diego. 

Since the 1930s, raw sewage flowing into the United States has 

posed a serious threat to public health and to the environment and 

to the economy of South Bay communities of San Diego. Congress, 

recognizing this in 1987, passed the Water Quality Act, which authorized and appropriated to EPA $239.4 million to construct a 

wastewater treatment facility and ocean outfall in Northern San 

Diego County, and I want to be clear that that $239 million was 

for the construction of a full secondary treatment facility. That facility was going to treat the sewage from Tijuana, Mexico which 

would otherwise have been in the United States and have contaminated the Tijuana River, the estuary and our coastal beaches. 

With these funds, the EPA provided a grant to the United States 

International Boundary and Water Commission to construct the 

South Bay International Wastewater Treatment Plant. The EPA 

also provided funds to the City of San Diego to construct an ocean 

outfall that treated and conveyed the water 3.5 miles into the Pacific Ocean. The plant became fully operational in 1999, and it was 

approached in a phased manner. 

In order to expedite treatment of the Tijuana sewage, the first 

phase was constructed as an advanced primary as an interim 

measure with the full intention of going to secondary treatment. 

Secondary treatment is required under Federal law in order to protect human health and the environment, and it was anticipated to 

be initiated shortly after the primary treatment facility became 

operational. 

In 2000, the EPA had requested of Congress an increase to the 

spending cap because of cost overruns. Congress, recognizing the 

cost overruns and other issues, chose an alternative approach with 

the Estuaries and Clean Waters Act of 2000, the public law 106-

457. Under public law 106-457, it requested that the IBWC begin 

negotiations with Mexico to construct a secondary treatment plant 

known as the ′′public law facility,′′ and that would serve to upgrade 

the South Bay International Wastewater Treatment Plant as well 

as to treat additional Tijuana sewage. 

We have not been a party to the negotiations between the IBWC, 

Mexico and Bajagua—the company selected to implement the requirements of public law 106-457. Therefore, we are really not in 

a position to update the Subcommittee on the negotiations or on 

the specifics of the implementations of public law 106-457. The 

EPA has responded to requests by both the IBWC and Bajagua, 

LLC for assistance. In fact, we authorized the IBWC to utilize the 

remaining grant funds to support the development and the compleVerDate 0ct 09 2002 17:30 Feb 13, 2008 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 P:\DOCS\36686 HTRANS1 PsN: JASON
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tion of the 2005 Environmental Impact Statement prepared in accordance with the National and Environmental Policy Act. 

The EIS selected the public law facility as the preferred alternative for the secondary treatment component to the South Bay 

International Wastewater Treatment Plant. Most recently, my office has also provided comments on the requests for the proposal 

prepared by Bajagua, LLC to design, build and operate a contract 

for them to complete the public law facility in Mexico. Until secondary treatment is provided, the South Bay International Wastewater Treatment Plant will continue to violate the Clean Water 

Act, and inadequately treated sewage continues to pollute the waters of Southern California, but all of the news is not bleak. In fact, 

the performance of the international wastewater treatment plant is 

exemplary, so let me share some of the good news about that. 

It is fully operational at the advanced primary level, and Southern San Diego County is no longer experiencing the effects of daily 

sewage contamination to the rivers and beaches. The EPA and the 

IBWC are continually working to optimize the treatment plant to 

achieve peak operational performance, and we recognize that we 

must continue our efforts to ensure that the rivers and beaches are 

free from sewage and contamination year round. We stand ready 

to work with all agencies and stakeholders to move forward with 

compliance with the Clean Water Act, including secondary treatment requirements, creating a foundation for a sustainable future 

for decades to come. 

Thank you. 

Ms. JOHNSON. Thank you very much. 

The Chair now recognizes Mr. Filner for the first round of questions, and you may take this seat. 

Mr. FILNER. [Presiding.] You know how much I tried to get out 

of this particular assignment, right? 

Thank you for being here, and thank you for being involved with 

this issue for so long. I am sure, like Mr. Bilbray and myself, you 

feel like there has been too much sewage for too long, and you 

would like to get out of it. 

Let me just ask Mr. Marin: You signed a Supplemental Environmental Impact Statement that said the so-called ′′Bajagua Project′′ was the preferred alternative. You signed, I guess, the Record of 

Decision, and you signed documents giving Bajagua the authority 

to go out to bid on contracts. We have met many, many times over 

the last number of years since you have been both the acting and 

the permanent commissioner, and you told me—and we worked on 

that assumption—that you were aggressively implementing the 

laws that were passed in the attempt to solve these problems. 

In all of that time, you never mentioned once that you were look- ing for another alternative, and all of a sudden, $66 million appears in the President’s budget. Money does not appear like that 

out of nothing. I did not request it. Mr. Bilbray did not request it. 

Nobody in Congress requested it. How did that money get in there, 

and how long have you been working on this situation when, supposedly, we were trying to implement the public laws from 2000 

and 2004? 

Mr. MARIN. Sir, in response to your question, I can tell you that 

the U.S. section, in combination with the Mexican section, has put 

10

a lot of resources and a lot of time and a lot of financial resources 

into trying to get the public law requirements adhered to and, you 

know, executed. 

One of the things, again, as you mentioned, is I did sign the 

Record of Decision selecting the Bajagua Project as the preferred 

alternative, but that was based on the requirements that Bajagua 

had already advanced its project. Yet, they had already selected a 

site, and they had already done some design and so forth. That 

would be the only way that the court-ordered date would be met. 

It is a September 30th, 2008. Unfortunately, things change as time 

goes on. 

The project is no longer at the same site as was proposed. There 

is no design prepared at this moment. Again, there was a conceptual design that was proposed, and so far, that has cost—again, it 

is a factor in which maybe the decision has been to change, and 

right now, I cannot say that we are changing course. We might be 

pursuing two different alternatives. As to the $66 million budget, I can tell you that there was a very 

tedious effort by several Federal agencies that were involved to see 

how this project could be implemented. First of all, in the development agreement, too, there was a May 2nd date that needed to be 

complied with. There were a lot of requirements that had to be met 

by Bajagua on that date. That was not complied with, and so that 

date was also in the President’s budget. So, once the President’s 

budget was implemented and the date came about, then the alternative plan was there in order to proceed in order to meet the clean 

water standards. The only alternative was what was originally 

planned and designed back in the 1990s. The design of the secondary treatment plant was completed at the time. Again, unfortunately, the funding was not there to construct it. So that was based 

on the reviews that we conducted. That was the only option that 

we had in order to be able to meet the clean water requirements 

for——

Mr. FILNER. Did you ask for the $66 million? 

Mr. MARIN. No, sir. That was, again, the administration’s——

Mr. FILNER. Who asked for it? I mean, money does not just appear. 

Mr. MARIN. We provided—how do you say—the technical background as to how much it would cost, and again, the budget, the 

$66 million, was basically a consensus of Federal agencies that this 

would be the best approach to take since we could not, again——

Mr. FILNER. If you pursued that approach, would you meet the 

court-ordered deadline? 

Mr. MARIN. No, sir. 

Mr. FILNER. Okay. So there is no way, apparently, that we are 

going to meet the 2008 court-mandated deadline? 

Mr. MARIN. Not at this point. 

Mr. FILNER. So since neither alternative—why have you stopped 

working on the first alternative, which you said was environmentally the most preferred, which you said was the best? In fact, 

if you read all of the supporting documents, you ripped apart this 

alternative of secondary treatment in the United States. You 

ripped it apart in your document. So why didn’t you keep pursuing 

the first alternative? 

11

Mr. MARIN. Again, we provided, or, by letter, I requested that we 

suspend our agreement with Bajagua in order, again, to be able to 

review the situation as it is now. Again, there was no compliance 

to the development agreement. 

Mr. FILNER. That is not true. They missed a deadline. 

Mr. MARIN. They missed several deadlines. 

Mr. FILNER. But they made several, right? 

Mr. MARIN. They did, but there are very few, and I can tell you 

the critical ones were not met. 

Mr. FILNER. And did you have any possible role in delaying that? 

Mr. MARIN. Sir, there is a lot—again, this is an international 

project, and there are a lot of factors that influence what is happening there. It is not something——

Mr. FILNER. Including your not being able to go to meetings, including your taking too long to——

Mr. MARIN. No. I am sorry, but I know Bajagua, and again, I 

mentioned in the previous meeting that they had put together a 

list of areas in which we, according to them, had delayed, but I can 

tell you we can spend all afternoon contradicting every single one 

of those. 

Mr. FILNER. You just said you know how difficult and complex 

the negotiations are, and then you are saying that, oh, well, they 

did not respond. So you recognize how difficult it is. We are just 

very upset that you did not put all of your resources into trying to 

make that happen since we passed two laws in this Congress to do 

that, and I mean that was very upsetting to those of us who have 

tried for so long, and you are seemingly going back to a proposal 

which was rejected a decade ago which may take another decade 

to come to fruition. 

Remember, the first plant that is there took more than a decade, 

I think, Brian, to get into action, and it was obsolete when it was 

open. So we are trying to get all around that. 

I am going to come back to you, Commissioner, and also to you, 

Mr. Nastri, but I will yield to my friend from Arkansas, Mr. 

Boozman. 

Mr. BOOZMAN. Thank you, Mr. Chairman. 

I guess I am confused about this. We have a situation where, in 

the past, we have had, you know, a lot of effluent coming from 

Mexico. The Tijuana area has grown in the last 10 years.You know, 

we had a partial solution that treated 25 million; is that right? 

Now, probably, what is it? What is the total effluent now, 75 million or 70 million? 

Mr. NASTRI. In terms of the treatment——

Mr. BOOZMAN. As far as the amount that needs to be treated that 

is coming out of the—so I guess my point is that we have got a 

much worse situation now than we did 10 years ago even though 

we have had a partial solution. 

I do not understand how your solution—and I really do not know 

your solution, Mr. Marin. I do not see how that addresses that at 

all. 

The other thing, Mr. Nastri, is that you said that it is good news 

that we do not have these spikes and stuff, but because it is just 

phase 1 coming out of the treatment plant, if you tested that water, 

12

it does not meet the EPA standards because of phase 2’s not being 

there, does it? 

Mr. NASTRI. It does not meet the secondary standards, Congressman. 

Mr. BOOZMAN. So all that means is that the reality is, when you 

walk down the beach, you do not see the visible feces and stuff like 

that, but you have still got the dissolved crud in the water that is 

there all the time. In fact, to me, that is even more dangerous because at least when you see the stuff, you know, if you are out 

there, you realize there is a danger there. 

Mr. NASTRI. I can understand your perspective, but the fact of 

the matter is that, when you look at the water quality standards 

now as opposed to 10 years ago, we are much better off today than 

we were 10 years ago when we did not have the facility operational. 

Mr. BOOZMAN. Do you agree with his solution? 

Mr. MARIN. Do I agree? 

Mr. BOOZMAN. No. Does Mr. Nastri? 

Mr. Nastri, as to the EPA, do you support what they are trying 

to do? 

Mr. NASTRI. What we support is getting secondary facilities constructed, and we support getting it done in the most expeditious 

way possible. I think you are right. 

Mr. BOOZMAN. Are you concerned about the other 50 million or 

35 million, whatever it is, that is not being addressed at all? 

Mr. NASTRI. The issue that you are raising addresses future capacity, and there are a number of plants that are about to be on 

line or are about to be constructed or are about to actually be completed and become operational through loans developed and acquired by Mexico through the Japanese banks, and there are other 

facilities that will address that capacity. So will we need that capacity right away? No. Will we need that capacity in 2015? Yes. 

Will we need that capacity in 2023? Yes, but right now, because the 

plant is in violation, our primary goal is to get the plant in compliance, and so our goal is to do it in the most expeditious way. 

As you and the Members of the Committee have noted, it has 

been 7 years, and we seem to be no closer to secondary treatment 

than we had been 7 years ago. So, when you ask me as a representative of EPA what our opinion is, I am going to tell you that I want 

to respond in a way that gives me the most assurance, and the only 

way that I have that assurance is if it is something that we, as an 

agency, have control over. The U.S. EPA does not have control over 

the construction in Mexico. 

Mr. BOOZMAN. But as a plan, I mean as far as looking at plans, 

if you could snap your fingers and know that, you know, the proposed thing in Mexico is actually done and is going to be constructed, that is a much better plan as far as solving the whole 

problem than just getting the secondary, isn’t it? 

Mr. NASTRI. The Bajagua plant, as described to me earlier today, 

in going to secondary and tertiary treatment and utilizing more of 

the water is certainly a better approach, and that was the basis for 

the preferred environmental approach described in the EIS. It is 

that you are actually treating more to a higher standard as opposed to 25 million within the IWTP. 

13

Mr. BOOZMAN. As to what you are trying to do, Mr. Marin, do 

you have the legal authority to do that? I mean, is there statutory 

authority in place now? The legislation that we passed seems to be 

different than what you are doing. Do you have the legal authority 

to even do this? 

Mr. MARIN. The public law, sir, identifies that, if there is no 

other alternative in the United States, that secondary can be considered or that other alternative can be considered in the United 

States even at the same time as the Bajagua Project. 

If I could add to what Mr. Nastri here has said on the water deliveries or on the quantity of water that is available in Mexico, 

right now, we are treating 25 million gallons a day of sewage at 

our plant, again, to advanced primary standards. Mexico also has 

a lagoon system in which they are treating 25 million gallons a 

day, and that was upgraded 2, 3 years ago. 

What I can say is that there are about 8 million to 12 million 

gallons of raw sewage going into the Pacific Ocean about 6 miles 

south of the border. Again, as Mr. Nastri has mentioned, there are 

two plants under construction using the Japanese credit, the Japanese credit plans. Those will be treating sewage to secondary, and 

they also will be aligned later in 2008. So, right now, the way it 

is seen is that there is enough capacity to treat the sewage that 

is being generated in Mexico. There is no renegade sewage in the 

Tijuana River, and there are, yes, occasional discharges in some of 

water, but we also have facilities to capture those and put them 

back in our plant. 

Mr. BOOZMAN. One last thing, Mr. Chairman, if you will indulge 

me. 

So is your problem in not doing what Congress has asked you to 

do in the sense of what we have put in legislatively? Is it with the 

plan or is it with Bajagua? Is it the implementation of the plan 

with the company that was selected? 

Mr. MARIN. Well, I think, sir, again, there are several factors 

right now that are, I guess, preventing the continuation or at least 

the advancement of the Bajagua Project. It is not—I do not have 

anything——

Mr. BOOZMAN. Like I said, do you have a problem with what we 

have legislatively asked you to do? 

Mr. MARIN. No, sir. 

Mr. BOOZMAN. Do you disagree with that or do you disagree with 

the group that is trying to——

Mr. MARIN. No, sir. I just am looking to see what is the most efficient and effective way of getting secondary to our plant to be 

meeting the secondary requirements and, therefore, to alleviate the 

court-ordered deadlines and sanctions that may come. 

Mr. BOOZMAN. Okay. Thank you, Mr. Chairman. 

Mr. FILNER. Mr. Boozman, I would ask unanimous consent to 

give Mr. Bilbray a chance to ask some questions of these witnesses. 

So ordered. 

Mr. BILBRAY. Thank you, Mr. Chairman. 

Commissioner, you said there is no renegade flows going into Tijuana. Are you willing to go down there now to wade in the Tijuana 

River with me? 

14

Mr. MARIN. Yes, sir. I had photos taken yesterday that show that 

there is nothing there. 

Mr. BILBRAY. You are saying that, right now in the flood-controlled channel, there is no pollution? 

Mr. MARIN. Yes, sir. 

Mr. BILBRAY. I will make a call over to the county health department, and I will love to see them verify that. 

Mr. MARIN. I will meet you there, sir. 

Mr. BILBRAY. So it has got no flows going through it now? 

Mr. MARIN. I do not think so. No. We operate that plant when 

there are flows coming across. 

Mr. BILBRAY. The interceptives? 

Mr. MARIN. Yes, sir. 

Mr. BILBRAY. Gull Canyon has no problems? 

Mr. MARIN. No, sir. 

Mr. BILBRAY. In fact, I will have my staff give the county a call 

to see what the latest numbers are on the Tijuana River. The fact 

is—what was your estimate in 1995 of building the total plant, secondary and primary? 

Mr. MARIN. I am not familiar——

Mr. BILBRAY. Okay. What was your estimate of building a 25-

mgd primary? 

Mr. MARIN. Right now? 

Mr. BILBRAY. What was it in 1995? 

Mr. MARIN. I do not have that figure, sir. 

Mr. BILBRAY. How much over were you? Do you know how much 

you were over? 

Mr. MARIN. No, sir. Let me just put it this way. 

Even though I have a 27-year career with the boundary commission, that project was not under my authority. 

Mr. BILBRAY. So you have no idea what the original projections 

were for the construction of the existing IBWC project? 

Mr. MARIN. No, sir. I was building another wastewater treatment 

plant at that time. 

Mr. BILBRAY. Do you have any idea now what you are projecting 

the 25-mgd secondary is going to be? 

Mr. MARIN. $94 million. 

Mr. BILBRAY. $94 million. That will treat 25 mgd to secondary? 

Mr. MARIN. Yes, sir. 

Mr. BILBRAY. Previously treated? 

Mr. MARIN. Yes. 

Mr. BILBRAY. So the problem I have here is that you do not have 

the numbers as to how much you underestimated your original projections. So I have got your projections now. I have no way of judging how much farther over you are going to go, but we all know 

it was grossly underestimated in the previous first stage of construction. 

Will you agree with that? 

Mr. MARIN. Yes, sir. 

Mr. BILBRAY. Okay. Do you see where there is a little credibility 

problem here? 

Mr. MARIN. Well, again, if I may add, we also had this estimate 

from Montgomery Watson, which is also one of the 40 top engineering firms in the United States. 

15

Mr. BILBRAY. I understand that. The difference is——

Mr. FILNER. Those are private firms that you are trusting. Very 

interesting. 

Mr. MARIN. I believe Bajagua is doing the same thing, sir. 

Mr. BILBRAY. And that is fine. The fact is that history has proven 

that, when you build it on the border with all of the problems that 

we have along the border with floods and with the fact of an uncontrolled situation along the border, there are a lot of unforeseen 

things. 

Mr. MARIN. Correct. 

Mr. BILBRAY. Okay. So the record of the in-house operation of 

IBWC has been less than stellar. It has been frustrating, okay? I 

understand both sides. This is 25 mgd to go to secondary. 

What is the next step? Where do we go? Are we finished with 

this treatment issue? In other words—well, let me just back up and 

say this. Has there ever been enough capacity in the Tijuana region for treating sewage? 

Mr. NASTRI. Not to my knowledge. 

Mr. BILBRAY. Has there ever been a plant that has come on line 

as to its original projection on ′′time′′? 

Mr. NASTRI. I am not aware of any within Tijuana. 

Mr. BILBRAY. Okay. I am only saying this because those who 

have worked on this know that it has always been over budget, 

that it has always been late on ′′time′′ and that it was not just because it is a bureaucracy; it is because we are working across the 

border. 

The trouble, as I am looking here, is that you are taking 

timelines and projections based on scenarios that are not justified 

by the record of the agency that is executing it or as to the location, 

and I am not just saying the agency. It is a tough environment. 

Those of us who work in binational issues understand it is a different world. Frankly, that is why we are more comfortable with 

the concept of, if you do not get the sewage treated, you do not get 

paid. I would love to be able to challenge the Commission with let 

us do this 25 mgd on the basis that you only get paid after, that 

you get the Federal money and the taxpayers’ money after you 

start treating the sewage, and that is the challenge that we are 

getting into. So we have never been on time. We have never had 

enough capacity. Now you are telling me they are going to be on 

time, and we will have plenty of capacity. 

Mr. NASTRI. Congressman, you have asked me questions specific 

to Tijuana, and as I mentioned earlier, the EPA had a cap placed 

on spending for upgrading wastewater treatment facilities within 

the Tijuana area. I can provide you examples of where, in fact, we 

have been on time, where we have been on budget within Mexico, 

and I can point to my colleague——

Mr. BILBRAY. Has it applied in Tijuana? 

Mr. NASTRI. As it applies to Tijuana, again, because of the restriction on the spending cap, the EPA has not been able to move 

forward. 

Mr. BILBRAY. Well, first of all, I had a question of if the spending 

cap were after you had overruns or before you had overruns? 

Mr. NASTRI. It was after. 

16

Mr. BILBRAY. Okay. See, that is what I mean. It was a reaction. 

All you have got to say is—Tijuana is the fastest growing region 

in Mexico. In fact, it is probably the fastest growing region in 

North America, but you have got a whole dynamic there that you 

can try to apply certain areas to, but this is one of them that we 

get into. 

What is the IBWC’s plan for the next phase? Are you going to 

be coming to this Congress, to this Committee, asking for funding 

for the next 25 mgd up to secondary, Mr. Commissioner? 

Mr. MARIN. Again, right now, in the President’s budget, it calls for $66 million. I know the House has removed that wording from 

the budget, but the Senate has put it back in. 

Mr. BILBRAY. Commissioner, I am not saying that. 

EPA, you can answer this, too. 

Are we saying, ′′We do not need any more treatment. We are not 

going to expand the IBWC plant at all anymore′′? 

Mr. MARIN. No. We will expand the plant to secondary. 

Mr. BILBRAY. Okay, to secondary, but you are not going to increase the volume of treatment at that site anymore? 

Mr. MARIN. No, sir. No. Well, no. Excuse me. 

That plant—with the program that we are implementing, it can 

expand the plant immediately to 50 mgd and then ultimately for 

100 mgd. 

Mr. BILBRAY. What I am saying is—here is my question to you. 

Are you willing to tell this Committee now, ′′look, once we get this 

done next year, we are going to be coming with′′—— Mr. MARIN. No. No, sir. I do not think—again, the flows are not 

there in Mexico. 

Mr. BILBRAY. So, in other words, what you are saying is——

Mr. MARIN. Mexico can take care of their own——

Mr. BILBRAY. —and what you are telling this Committee is that 

there is no longer going to be a problem after this year with Tijuana sewage? 

Mr. MARIN. Maybe not for many years. 

Mr. BILBRAY. You honestly believe that we will not have to worry 

about that? The people at Pearl Beach and the people in San Diego 

have now been assured by their government not to worry about it, 

that Mexico is taking care of all of the problems and that we do 

not need to make any more of an effort? 

Mr. MARIN. We will work, Congressman, to take care of the 

issues with Mexico if things—again, right now, our agreement is to 

take care of the 25 mgd from Mexico. 

Mr. BILBRAY. Let me say this publicly just in closing, Mr. Commissioner. I did not support the original proposal to treat sewage 

in the United States. I liked the idea that Mexico had a treatment 

facility in their country and that it was not in our neighborhoods, 

and most Americans would agree that it is much better that Mexico treats their sewage in their neighborhoods and not in ours, so 

I am not arguing with that, but then the Commission, in working 

with the EPA, fought tooth and nail to get Mexico to allow the sewage to be treated in the United States. Bob Filner’s district was allowed the privilege of hosting a foreign country’s treatment facility. 

Finally, I agreed to that. We went with it. We passed a law in 

2000 that I authored and that Bob cosponsored. The President of 

17

the United States had a chance to veto that bill on Election Day 

in 2000. He did not. The executive branch signed it. I will be very 

frank with you. 

My opinion is that the people who are working under you have 

spent every day since 2000 to de facto veto that legislation and to 

obstruct the implementation even though it was explicit in how it 

should be executed. The bureaucracy is vetoing a duly passed piece 

of legislation, and I see this as a major violation of the separation 

of powers. I do not see anywhere in the Constitution that the executive branch gets a second shot at vetoing a bill. That is what I 

see has happened. When you introduce an amendment to finance 

a whole different project without even talking to the people about 

where you are going and how you are doing it, I mean the whole 

illusion was we are moving; we are moving; we are moving, and all 

at once, it shows up in the budget. It does not happen overnight. 

I think Mr. Filner is right on that. I have just got to tell you that 

I think you guys have done everything you can since 2000 to make 

sure it does not happen, and the project is still not done. 

I yield back, Mr. Chairman. 

Mr. MARIN. I seriously disagree with your statement, sir. 

Mr. NASTRI. I certainly disagree with that, that EPA has fought 

to oppose this project. In fact, we have tried to be expeditious in 

our response in providing assistance to both Bajagua and to the 

IBWC. 

Mr. BILBRAY. My question is would either one of you support the 

concept of a public-private partnership——

Mr. NASTRI. I do not know enough to have a position on that particular matter, sir. With regard to public-private partnerships, I am 

a big proponent of those. In fact, we have done many, addressing 

primarily air quality issues, not only within San Diego-Tijuana, not 

only within California, but in fact, we have developed a model that 

has been used throughout the Nation. So I am a big proponent of 

public-private partnerships. 

Mr. BILBRAY. I just think it is so much more the nature of bureaucracy to do what you are used to, and you are used to contracting with a private company to build a project but not to operate it and to be responsible for the outcome. Frankly, as a victim, 

as somebody who grew up as a victim of the lack of government 

action, I have a lot more faith in a contractor’s being held accountable, because he will not get his money. You guys get paid no matter if the sewage flows or not. That is our biggest problem. All of 

us get paid if the sewage flows or not. Frankly, I would love to see 

us all a little sensitized, and if we have got to use contracting as 

a way to sensitize that—I did it at the county; I did it at the city—

then I think that those of us in the Federal Government ought to 

be brave enough to try new things. 

Thank you very much, Mr. Chairman, and I appreciate it, and 

I know it is a frustrating situation, but it is something that we are 

all going to have to be held accountable for. 

Mr. FILNER. Thank you, Mr. Bilbray. I think your characterization of a de facto veto of two pieces of legislation is accurate. 

Commissioner Marin, I was shocked that you did not know how 

much the secondary treatment will cost. If you listened to Mr. 

Nastri’s testimony, he puts it at $239 million, and I think we have 

18

heard that that was $100 million under budget, which is why it 

could not be constructed, the full secondary. 

I know both Mr. Bilbray and I, who are in the area almost daily 

when we are home, find it very difficult to believe your statements, 

Commissioner Marin, about the lack of problems and to believe 

your written testimony, Mr. Nastri, which you did not repeat, I noticed, in your oral statement that Southern San Diego County is no 

longer experiencing the effects of daily sewage contamination to 

their rivers and beaches. That is an amazing statement. I mean, 

I will join you and Mr. Bilbray and Commissioner Marin and step 

foot in that or I will dare you to do it. 

I mean, do you find that statement just completely out of touch 

with reality, Mr. Bilbray? 

Mr. BILBRAY. Well, I was out there 3 weeks ago, riding horses 

along there, and it was flowing 3 weeks ago. 

Mr. FILNER. Where do you get that information? You say it is no 

longer experiencing the effects of daily sewage contamination on 

rivers and beaches. Who told you that or how do you know that? 

Mr. NASTRI. We collect the information. I think I was trying to 

make the distinction, Congressman, with all due respect, between 

wet weather flows and dry weather flows and what it is we are trying to accomplish. We are not saying that there will be no sewage 

ever. We are saying that, under dry weather conditions, we will collect the sewage——

Mr. FILNER. That is not what you said here. 

Mr. NASTRI. What I said was——

Mr. FILNER. There is nothing about—oh, in dry weather. You 

said the treatment plant is no longer experiencing the effects of 

daily sewage contamination in its rivers and on its beaches. 

Mr. NASTRI. That is true. 

Mr. FILNER. You are absolutely wrong. 

Mr. BILBRAY. Would the gentleman yield? 

Mr. FILNER. Yes. 

Mr. BILBRAY. Okay. Now we are using wordsmithing. Will you 

admit that? Will you admit that? 

Mr. NASTRI. I made the distinction that there are different conditions——

Mr. BILBRAY. Wait a minute. When the red sign goes up telling 

the kids ′′stay out of the water,′′ when the red sign goes up and 

says ′′this water is not safe to touch,′′ is there a caveat saying ′′wet 

weather′′ or ′′dry weather′′? 

Mr. NASTRI. The signs usually go up in wet weather conditions, 

sir. 

Mr. BILBRAY. And the point being that, if we do not keep our 

beaches open, the kids do not give a damn if it is dry or wet weather. The fact is, if you do not have the capacity—you are using the 

caveat ′′we have capacity for dry weather.′′ Excuse me. Historically, 

dry weather has never been a problem there. Historically, the wet 

weather has always been a problem. So what you are doing is ignoring the true problem, the tough problem. That is wet weather 

flow. Are we going to go to Boston and tell Boston that they do not 

have to have sewer overflow systems? Will the center just talk 

about San Francisco? We require it as a minimum standard 

throughout this country, but what you are saying is the standard 

19

for those who live along the border is only dry weather, not wet 

weather. 

Will you admit this: If we do not have capacity for wet weather, 

we have not solved the problem? Will you admit that? 

Mr. NASTRI. We have not solved the full problem caused by Mexico. Within the United States, we are addressing both the wet 

weather and the dry weather flows as you suggest. The issue about 

the authority, though, to address what EPA can do——

Mr. FILNER. As the administrator for the 9th district, I find your 

statement so out of touch with reality. I have trouble with, you 

know, listening to anything you have to say. Let me ask you three 

things. Let me make three points quickly. 

I think the whole point was, when you made your statement—

and we have it on the record—about control, you want control, and 

you did not have it on this project, so you were prepared to scuttle 

it. That is what you want. It has nothing to do with the court order 

or anything; it was control, and that is in your own words. So I find 

that incredible. That is the definition of ′′bureaucrat.′′ That is all 

you are concerned with. I will tell you that you are focused on dealing with the law that your 25 million gallons per day will be turned 

to secondary. You are not an environmentalist if you can say that 

you have done your job and that that is what you are going to do. 

You are going to upgrade this to secondary. We have done our job. 

What about the 50 million gallons? What about recycling? What 

about the sludge that is there? This is not the best solution, and 

you know damn well it is not. This is a solution to meet the purely 

technical, legal situation with no regard for the well-being of our 

constituents or of the environment because, if you were concerned 

about that, you would not testify like this. You would say, ′′Look, 

I will fulfill the 25 million gallons secondary, but I will also then 

figure out how to do tertiary like Bajagua does. I will figure out 

how to do 59 million gallons like Bajagua does. I will figure out 

how to recycle the water like Bajagua does.′′ All you say is ′′I want 

control, and I am going to meet the law, and we are going to leave 

it at the completely obsolete standard of 25 million gallons per 

day.′′ I mean I find that disgraceful for an administrator of the 

EPA, and you said—by the way, I will give you a chance to answer. 

You said this is the most expeditious way to get that secondary. 

I want you to say that again on the record when you know that 

the Congressman from the district is going to fight that appropriation every step of the way. Do you know how easy it is to give away 

$66 million as opposed to getting it? I am going to fight that. The 

people will go to court about your process, your activated sludge 

process. They will go to court on many different grounds, and you 

will never see the light of day of that project. 

Mr. FILNER. Do you now say it is the most expeditious way to 

get there. 

Mr. NASTRI. Congressman, thank you for giving me a chance to 

respond to your comments. First, as a regional administrator of the 

USEPA, I uphold the law. We will do that. 

Mr. FILNER. The law. 

Mr. NASTRI. We will do that. When you ask me what is the best 

way to do it, I say give it to me, give it to EPA, we will take care 

of it, we will get it done. 

20

Mr. FILNER. The Congress said a different way. We told you what 

the way was. We passed two laws. 

Mr. NASTRI. We have complied and provided assistance necessary. You asked a question today what will it take and I am trying to give you my honest answer to that. 

With regard to meeting the law, absolutely we will do whatever 

is necessary within the authority granted to us certainly by Congress and others. 

The challenge though, sir, and the challenge which we have met, 

is working with Border 2012 Commission. It is working with Mexico to just the very questions that you asked us. It is working with 

Mexico to find ways where we don’t have the authority to get them 

to do things that otherwise wouldn’t be done. It is working along 

the entire U.S. border. It is working——

Mr. FILNER. It is not working. I live there. 

Mr. NASTRI. Sir, we don’t have the authority to move forward in 

such a manner. That is why we are using those partnerships——

Mr. FILNER. You are not solving 59 million gallons a day, you are 

solving 25 and you are doing it in a way which is not necessarily 

environmental sensitive and does not recycle the sewage. Why is 

that a better way? The claim is the Bajagua Project does meet the 

law, right? The secondary treatment, if it was implemented, it 

would meet the law? 

Mr. NASTRI. Yes, it would. 

Mr. FILNER. They are closer to meeting the deadline than this—

I learned a new word, ′′chimera′′—of a secondary edition—because 

we are going to fight that. We have a Republican, we have a Democrat, anybody who wants to give away $60 million will be pretty 

well aware of what we think, and we will be at those conference 

committees and everywhere and you ain’t going to get it. 

It is not even the question of that. It is a question that you have 

come up with an alternative. Actually we mandated one knowing 

that alternative. It was found to be not sufficient, another one was 

pointed out—regardless of your statements that you assisted. I 

think if we had court testimony on it, we would have testimony on 

how EPA and IBWC resisted the implementation of that law since 

it was passed. And you would be looking for a way not to do it, and 

there has been one reason and you said it, control. 

Mr. NASTRI. Congressman, I said control because if that is how 

you asked to us proceed we would do so. We have provided assistance, technical resources, and we will continue to do so. If you 

asked if we have a preference, I have no preference on whether it 

is Bajagua, through a national wastewater treatment plant. The 

preference we have now does come into compliance. The preference 

is that we work in partnership with Mexico, with all the stakeholders, to come up with a way that is acceptable. 

Part of the challenge here is to take the history from the last 10, 

15 years and learn from it. I can tell you when I came into this 

position the financial management of the border fund is something 

that caused me great concern. We permitted a number——

Mr. FILNER. I don’t give a damn about that. We are talking about 

treatment of sewage from Mexico today and how we are going to 

get them to comply with the law and comply with the environment. 

I will call on Mr. Boozman. 

21

Mr. BOOZMAN. Thank you, Mr. Chairman. I am not emotionally 

in this thing in the sense of I didn’t grow up in San Diego. I live 

in Arkansas in the center of the country. I have been on the Committee since 2001, on Water Resources the entire time and on 

Transportation. I think you do agree that the intent of the law in 

2000, and then I tweaked the law in 2004, really wasn’t a direction 

that is different than what you are taking now. 

And for somebody who tries to get things done, goes through the 

process, it is very irritating to do those things and then not have 

the agencies carry it out. And I really see that that is what is happening, and I think you would agree that we are hearing it. We are 

the ones who did it, Mr. Filner is on the Committee, Ms. Johnson, 

we agree our intent was not to do what you are doing now. 

On the other hand, I am willing to listen if you are telling me 

that because the Japanese are going to build treatment plants, we 

are not going to have a problem in a few years. I will listen, but 

you are going to have to give me evidence that that is the case. 

Right now I am a little confused. I have an excellent relationship 

with EPA. In Arkansas we have a lot of rivers and streams and 

enjoy working with you guys, but things are a little tougher, it 

seems, with the standard as far as getting rid of the phase 1 stuff 

and feeling like everything is okay now. I understand you want to 

get to phase 2 to bring it into compliance that way, but you are 

still not dealing with—you have as big a problem now because of 

the growth of Tijuana and the surrounding region as you did when 

we started this thing 10 years ago. 

Is that not right? 

Mr. NASTRI. I said we have a big problem, and I certainly hope 

I didn’t convey that we were resting on our laurels with the advanced primary because we certainly agree and I thought I acknowledged that the outfall is continuing to discharge in a manner 

that is not in compliance with the Clean Water Act. It is in violation and posing a risk to the health of our nearby populations, to 

the community, to the beaches, to the rivers, absolutely, and that 

is why EPA has provided funding and is doing everything they can 

to move this project forward. 

As I mentioned before, we are not party to the negotiations with 

the IBWC, we are not party to negotiation with Bajagua. We are 

providing resources when asked. And I would ask if you are aware 

of any type of incidence where EPA has delayed or hindered, make 

me aware of it, because I am not aware of such issues. 

Mr. BOOZMAN. I guess my point is we have a problem and so the 

Committee, they scratch their heads and the staff and the Members, and we look at this and say well, we have this problem, let’s 

come up with a solution that gets you your secondary into compliance and then it also treats the other because of the growth of the 

city on the other side and then especially keeping it on the other 

side which—so we are going to treat that too. We come up with 

that solution. That to me is a good solution. What we are talking 

about is backing off and doing the second phase of that, which for 

me again is not the legislative intent of what we were trying to do. 

Is that not right? Isn’t the better solution to the problem the one 

that we came up with? If we can get—and this is a separate issue 

that we are going to talk about in a little bit, but if we can get the 

22

companies to get the thing built the way that we want to get it 

done. 

Mr. NASTRI. I think your intent as you describe it, had it been 

met in the way that it was desired, the answer to your question 

would be yes, but the challenge has been as the commissioner has 

described. Here is where I get to the issues of control. I can control 

what my agency does, I can control what my staff does, I can’t control what other agencies do or do not do. 

So having said that, what we rely on are people making schedules, people meeting commitments. If those commitments and 

schedules haven’t been met for whatever reason, and I will not 

comment, they just haven’t been met, the issue is do we have confidence and can it be done. 

Mr. BOOZMAN. Thank you, sir. 

Mr. NASTRI. Sure. 

Mr. BOOZMAN. We went for years trying to work out the treatment or whatever. What does Mexico think about this? Do they 

mind us pulling the plug or do they want us to pull the plug on 

this? 

Mr. MARIN. Let me tell you Mexico supports the Bajagua Project. 

It would be dumb for them not to do it. It is a free project——

Mr. BOOZMAN. Are we having any kind of legal obligation with 

them? 

Mr. MARIN. Normally it is a 50/50 split. That is what we would 

do with Mexican projects. I believe that is in the 1944 treaty. This 

one is a whole free project to Mexico. 

Mr. BOOZMAN. You negotiated it. Somebody did. 

Mr. MARIN. Yes, we were joined with Mexico to build this plant. 

Mr. BOOZMAN. You came up with an assignment. I guess my 

question was when we came up and signed it do we have a legal 

obligation or an oral obligation to do our treaty? I don’t understand. 

Mr. MARIN. Let me say Mexico has already paid the U.S. for secondary treatment of their sewerage. They paid us when the first 

plant was constructed, and of course our agreement with them was 

this plant would go to secondary and they paid us in advance. In 

fact they made their last installment this year. Right now it is an 

obligation to the U.S. to provide secondary—again Mexico——

Mr. BOOZMAN. That is another obligation that we haven’t talked 

about. So we have that obligation sounds like, but do we have an 

obligation either by treaty or by a moral obligation? Since we spent 

a lot of time working on an agreement and both sides signed the 

paper, are we bound to doing what we said we would do? 

Mr. MARIN. Not necessarily. We will work together to get the 

project done, but there is no definite and specific commitment that 

this project had to be done. 

Mr. BOOZMAN. What I would like to do, Mr. Chairman, with your 

permission, is we have several questions that we would like to submit to the witnesses. I yield back. 

Mr. FILNER. Yes. 

Mr. BOOZMAN. Thank you. 

Mr. FILNER. Before I call Mr. Bilbray, you said you had to have 

confidence in the agencies you deal with. That is the problem here. 

We have a problem because the IBWC didn’t fulfill its original comVerDate 0ct 09 2002 17:30 Feb 13, 2008 Jkt 000000 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 P:\DOCS\36686 HTRANS1 PsN: JASON
23

mitment of building a 25 million gallon per day facility that would 

treat at secondary standards. Why deal with IBWC if you can’t 

trust them? 

Mr. Bilbray. 

Mr. BILBRAY. I guess I want to come back and visit this issue of 

where we are going, because problem is I don’t see us going beyond, I see an abandonment of a long-term agenda. 

I would like to ask EPA, how many beach closings have occurred 

because of the lack of secondary treatment at the outfall? 

Mr. NASTRI. I don’t have the exact number. I can get that to you, 

sir. 

Mr. BILBRAY. Well, let me say I would—you may want to ask 

your staff about that. 

Mr. NASTRI. I absolutely will. 

Mr. BILBRAY. Because my information from the county of San 

Diego, which does the testing, zero, zero, that the health risk of not 

going to secondary to that today is zero. You want to guess what 

percentage of the closures in that area was because of wet weather 

flow? 

Mr. NASTRI. Yes, I would say probably 100 percent. 

Mr. BILBRAY. Can we agree that the public health threat here is 

wet weather flow and so from the EPA’s point of view, separate 

from these guys, wet weather is the end all? If you ignore wet 

weather—let’s pull up our tent, except for what you said, and I understand what you said. My concern is that the law is sufficient, 

it is not enough to do just the law. In this situation where you 

want to take your kids into that water the secondary is not what 

is going to threaten their lives. My kids are recommended to have 

hepatitis A and B inoculation because of exposure from a foreign 

government lack of action and the lack of action of our government, 

and that is why I am coming back down to this issue. We can’t 

walk away, you are not going to be done with this, ladies and gentlemen, until you take care of wet whether flow, and there are a 

few of us who will go to our grave dragging this back up. 

Commissioner, in 2001, within months of the passage of the legislation, you had staffers who weren’t under your supervisor at the 

time, but were actively working within the coalition, saying there 

is no accountability if we have a private contractor implement. And 

they publicly stated, and in private discussions would be there, 

they didn’t want to do this project. 

Now, you think about what I feel like working my entire life in 

this, finally getting all the players together, he will take up treatment plant in his district, we will get the money for you, we have 

everything together, and you have somebody who says, Congressman, I don’t care what you guys do, we are not going to do it, we 

are not here to serve the law, we are not going to follow the congressional mandate, we are insulated from that. 

And you know the problem with the commission because it is a 

hybrid formed in the 1840s, basically not under the supervision of 

anybody, has created a mindset that basically has been insulated 

from political reality. And now you have a situation where you 

have mid management people telling Congressmen and telling the 

public, we don’t care what the law is, we don’t have to do it, we 

don’t like it. That is the kind of thing why I am outraged, that is 

24

why I am sitting up here on this dais. It is not my Committee, it 

is not even my district, but it is my country that says the executive 

branch is not supposed to be not above the law, they should be executing the law. I don’t see where we go with this thing if you play 

with that. 

I still come back to every cent that is wasted, every cent not 

spent as effective as possible, I say this to EPA, every cent not 

drained to protect the value is an act against the environment because that is a cent that could have been used somewhere else. My 

concern is here, if we are going to treat 25 mgd to secondary for 

$1.75 instead of $1.05, that is an act against the environment for 

us to sit and just say, don’t worry, we will find the money somewhere else, we will find more money. That is why I am saying you 

will pay the price and fulfill the law, but you are not going move 

the agenda for protecting the environment. And no one passed the 

Clean Water Act ever thinking it would hurt the environment and 

never assumed that we would waste money and not be as the most 

effective as we can. We will go another 25 mgds, Commissioner, the 

wet weather flows will be brought up. 

Is the State Department willing to close the border for every day 

that the beaches are closed, are you willing to shut the port of 

entry? No. Why not? Is Mexico more important than tourism on the 

beach of Coronado? 

There is a real double standard here, but it is not important 

enough to you to do those kind of things. That is why I say it will 

come down the pike. I will do everything I can while I am in Congress and if it means shutting off and eliminating the privilege of 

crossing the border to protect our environment, I will be willing to 

do it, but wet weather flows are important, they are the ones going 

out there, and that is one of the threats, that is what is closing our 

beaches. 

Mr. NASTRI. Congressman, I agree that the wet weather flows 

are a big challenge, but even if we proceed in the Bajagua format, 

that still will not address the wet weather flows. 

Mr. BILBRAY. So you agree that Mexico is part of the Minute 

order, Commissioner, why we are giving them such a deal on treatment? We give them a great deal on treatment, they are supposed 

to focus on the wet weather flow, they are supposed to put it in 

pipes, which will increase the volume that we need to treat. So that 

is my concern. If you take the existing flows, you have to remember 

we have to project, we don’t know what the wet weather flows 

would be. For us to say we don’t need anymore at this time is not 

viable, it is not responsible. If they do their job, our job will increase substantially but the environment will benefit. 

That is why I get mad. I was there when we negotiated, Mexico 

was supposed to put it in a pipe and we are supposed to make sure 

it doesn’t pollute the ocean. They will do their part. The trouble is 

I don’t think we will be doing ours. 

Mr. FILNER. Let me make one more point. When I first heard 

about the Bajagua proposal, the thing that intrigued me the most 

was the recycling the water. The government of Mexico, the State 

of Baja, the City of Tijuana all are desperate for water. I understand there are discussions about the Colorado River distribution 

because Mexico is a party to that and both your agencies I suspect 

25

will be involved in dealing with the allocation of water resources. 

It seems to me to undermine a project for producing 50,000 mgd 

of reclaimed water is harmful to the future of water resources in 

the whole Colorado Basin, let alone southern California. 

Why wouldn’t you be jumping on that? I don’t understand it, a 

million gallons a day of reclaimed water in an area desperate for 

water, why can’t you help on that? Do you have any other plans 

to give us reclaimed water? 

Mr. MARIN. Sir, that reclaimed water is not for U.S. beneficial 

use. 

Mr. FILNER. I said give it to Mexico so we don’t have to worry 

about Mexico’s claim anywhere else. 

Mr. MARIN. There is an issue on the Colorado River and California location, California has been reduced to the 4.4 plan, 5.42. 

That is water that is seeping from the canal into Mexico——

Mr. FILNER. What are you doing to help the region with more 

water? I just don’t—you should be jumping on this thing with everything that you have got. You could leave office by saying you 

made sure the region had 50,000 gallons more where you don’t 

have to worry about the Mexico and regional thing. 

Mr. MARIN. Sir. 

Mr. FILNER. Do you have any other plan? 

Mr. MARIN. To provide the Colorado River water to the U.S. system to Tijuana. 

Mr. FILNER. How much is that? 

Mr. MARIN. It depends on——

Mr. FILNER. How much is it? 

Mr. MARIN. There is other——

Mr. FILNER. How does that compare to 50 million? 

Mr. MARIN. It is not U.S. water, it is Mexico water. We are concerned about the U.S. 

Mr. FILNER. We are treating the sewage, which is what your job 

is and claiming and making sure our neighbor to the south has resources. And you are saying that is not our job. 

Mr. NASTRI. Make sure the water quality standards are being 

met. 

Mr. FILNER. That is why we are getting upset, because of the 

kind of bureaucratic answers we are getting here. Your job is to 

fulfill the law, our job is to help the region. 

Mr. BOOZMAN. Thank you. One thing real quick, when will the 

court hear the matter of extending the deadline, the September 

2008? And what is the IBWC, what are you guys going to argue 

when you go to court? 

Mr. MARIN. Sir, that request was filed this morning. It was sent 

by the Justice Department to our regional control order or the 

judge—I am not familiar exactly who it was sent to, but it has been 

filed and we will request an extension for construction of the plant. 

When we get a response, that is a different issue. 

Mr. BOOZMAN. And the argument? 

Mr. MARIN. Again that there will be right now pursuing dual 

course secondary to the U.S. and the Bajagua Project. Basically the 

extension is to be able to mediate one of those two deadlines. 

Mr. FILNER. Which deadline are you trying to meet with that? 

26

Mr. MARIN. 2008—the request that we are fighting is for an extension of time, to be able to construct our plant or finish the 

Bajagua——

Mr. FILNER. What date is that? 

Mr. MARIN. March, 2010. 

Mr. FILNER. You think you are going to build—even Mr. Nastri 

is looking at you with some incredulity. March 2009? 

Mr. MARIN. 2010. 

Mr. FILNER. You don’t have any money yet. You are claiming the 

environmental lift thing has been done but it ain’t because it is a 

new project. You haven’t dealt with the Congressional problems 

and lawsuits and you will do it by——

Mr. MARIN. Based on the EPA and CEQ the environmentalists 

have prepared. 

Mr. FILNER. I wished you worked on the other one as much as 

this one. I am sorry. 

One more question. 

Mr. BILBRAY. Originally, there was a little thing called litigation 

between Surfrider and Sierra Club. Has Sierra Club, Surfrider and 

the judge, I guess Judge Rooster, have they signed off on going to 

activate sludge, now going back to the original, have they assured 

you they have no problems with you now going back? 

Mr. MARIN. The lawsuit that was filed, sir, was a lawsuit to request that the IBWC consider other alternatives, it was not to say 

they would not accept activated sludge. There was an additional 

decision in 1999 that clarified that situation. We would have to go 

back again to update those requirements. 

Mr. BILBRAY. In other words, you would have to—you agreed to 

give priority to the ponding over the activated sludge. So you would 

have to go back and renegotiate that with those parties and that 

judge or you show them that you fulfilled your requirement? 

Mr. MARIN. Yes, sir. 

Mr. BILBRAY. So we would go back to where we were 10 years 

ago? 

Mr. MARIN. The issue about not being able to use it——

Mr. BILBRAY. Activated sludge, and you don’t to worry about lawsuits? 

Mr. MARIN. As far as the decision a few years after that. 

Mr. BILBRAY. Yes. The Sierra Club and Surfrider have told you 

they are okay with activated sludge now, they changed their position. 

Mr. MARIN. I haven’t read the documents recently to tell you yes 

or no. I know the decision is made that we did what the lawsuit 

required, for us to go look at different alternatives in order to address the issue there. 

Mr. BILBRAY. I would strongly ask you to go back and touch base 

with those litigations to see if they changed their position. As far 

as I know, Mr. Chairman, there is no change at all in their positions. 

Mr. FILNER. We thank you, Mr. Marin and Mr. Nastri, for your 

presence, and we thank you for helping us to understand the situation. 

27

Mr. MARIN. If I may, Congressman Filner, I have some photos 

taken on July 16 of the river, it is basically dry, if you want pictures. 

Mr. FILNER. That is because of all your efforts? What is that supposed to prove? 

Mr. MARIN. The Congressman was saying there are flows in the 

system. 

Mr. FILNER. Have you pictures of all the——

Mr. MARIN. This is Tijuana. 

Mr. FILNER. He asked about——

Mr. MARIN. We have facilities at those sites. 

Mr. BILBRAY. Next time why don’t you send someone to the Hollister Street Bridge and test the water at the Hollister Street 

Bridge, and I challenge you to wade in the water at the Hollister 

Street Bridge. 

Mr. MARIN. It wouldn’t be the first time. 

Mr. FILNER. It may be the last. 

Mr. BILBRAY. I assure you——

Mr. FILNER. Anything additional to submit we would be happy 

to argue with you right now. 

The second panel will please join us. Representing the Bajagua 

firm, we have Jim Simmons, who is Managing Partner. 

You have the floor. 

TESTIMONY OF JIM SIMMONS, MANAGING PARTNER, 

BAJAGUA, LLC 

Mr. SIMMONS. Thank you. Thank you, Mr. Chairman. My name 

is Jim Simmons. I am the Managing Partner of the Bajagua Project 

and a principal in the project. I have provided you today with written testimony which you all have in your possession, and I decided 

not to represent that testimony after listening to the process that 

has gone on here today. I will say this, and I think it is extremely 

important for us to try to characterize what we are trying to accomplish here. 

Mr. FILNER. Just for a second, is Commissioner Marin or Mr. 

Nastri in the room? 

VOICE. They left. 

Mr. FILNER. They left. They don’t want to hear this testimony? 

Just for the record, they left before your testimony. Thank you. 

Mr. SIMMONS. I certainly hope they come back. 

We find ourselves at a historical moment, it is also a little bit 

hysterical. I think we are at a point now where we have come full 

circle with a public project partnership put in place by Congress 

twice and asked to move forward with the project on the border to 

bring together a process that will bring several things for the 

United States and several things for the country of Mexico. 

Mr. Chairman, as you are so painfully aware, Mexico has been 

brought to the table to negotiate from a fairly weak position over 

the years, has looked to the United States to try to resolve issues 

they don’t consider their problem. They don’t have a sewage problem in the City of Tijuana, they have a water problem. The objective put on the table and brought forward was a proposal to create 

value, to create a commodity so that the City of Tijuana, the State 

of Baja and the country of Mexico can look at that and say it is 

28

incumbent to make use of this commodity and develop our neighborhoods based on clean water. We have a mechanism to develop 

clean facilities where we have something we can sell. 

Up to this point in the history of this project, and I look back to 

remind all of you on February 27th, 1944, that was 5 days after 

I was born, this treaty was put in place to resolve this issue. I 

would love to see this resolved before I am passed from this planet. 

I think it is a question now of how do we bring together the final 

steps of this process. We have put a huge amount of information 

before you and in front of the IBWC and others that says if we 

work together we come up with a facility that produces 59 million 

gallons today of secondary treated water, right now that is what is 

being charged in Mexico 5 million gallons, not one single drop is 

being treated to secondary standards, whether it comes out of San 

Antonio, Buenos Aires, whether it comes out of ITP, none is being 

treated to a secondary level. When we get our plant on-line everything we produce will be a minimum of secondary. We will provide 

the beginning of a process in Mexico where they will have a commodity that they desperately need. It is a process by which they 

will eventually be self-sufficient in their treatment. It is the only 

mechanism available to the United States to get out from under 

this long-term burden of paying for sewage across the border. 

Under the plan that the Commissioner has proposed to you to 

take 25 million gallons a day and treat that, that is an ongoing 

process under the treaty. There is no way out. This Congress will 

be asked for the next 100 years to pay for that 25 million gallons 

a day. Under our process it comes to an end in 25 years, the plan 

is paid for. There is a tertiary facility in place who has the financial ability to take over the process, and this country will finally 

step back and take a deep breath and say finally I am not paying 

for the treatment of Mexico sewage. 

It is a concept that when we proposed it to Congress it was 

passed unanimously twice, because what happens here is that I 

and my partners will step up with a checkbook and we will write 

a check for the entire amount of money that it takes for the project, 

we will not ask the Congress for one dime. At the end of the day 

I will come to you and say I am now producing secondary treatment water, and I would like to you pay me for the production of 

that water. And you will test it, you will say yes, sir, you have produced it, and we agree we will pay you for that. As long as you do 

that, we will continue to pay you for it. 

We have assumed the risk and appropriations, we have a bank 

that has financed us, all of the pieces are in place. 

I realize I am over my 5 minutes, I really could go on for a long, 

long time. I will defer to questions on this process. 

But in conclusion let me say this, we are virtually at the gate, 

we have identified the site in Mexico, we are currently working on 

the site. We have been given rights-of-way on the top of the berm 

to put the pipelines, which saves us from breaking streets and 

spending extra money to put pipelines in streets. 

We have been given a concession for the reuse of the water for 

20 years. That is the economic engine that runs the entire process. 

Give me that economic engine and I will turn this into something 

that makes sense for you, the United States, to Mexico, and we will 

29

finally see an end to this problem, because instead of sewage being 

something that runs on beaches, it will be something that Mexico 

will seek to capture to bring the economic value back which they 

desperately need. 

I thank you for your time and attention. I will answer any questions I can and elaborate on anything I have said. Thank you. 

Mr. FILNER. Thank you, Mr. Simmons. If the IBWC was cooperating with you, when could you have a plant open that would meet 

the requirements of the scenario? 

Mr. SIMMONS. The Clean Water Act implementation of the process we believe we could be in the ground up and tested and fully 

operational in 25 months. 

Mr. FILNER. From the time——

Mr. SIMMONS. From the time they tell me to go. That could be 

today if they would tell me that. 

Mr. FILNER. All right. For the record, Administrator Nastri and 

Commissioner Marin just walked in, so maybe you should answer 

my question again. 

Mr. FILNER. I asked, assuming there was cooperation from the 

IBWC since we already have the EPA cooperation, could you open 

a plant that implemented or was in compliance with the Clean 

Water Act? 

Mr. SIMMONS. We believe we could open it 25 months from the 

time the restriction is lifted on us to move forward and we met 

with our three qualified bidders. That is the schedule they have 

given me. It would take 6 months to put all the filing negotiation 

in place and sign a contract, 19 months to build the plant. There 

are some mechanisms to shorten that. I have gone over those 

mechanisms with the Commissioner and those mechanisms involve 

while we are negotiating in that 6-1/2 month period, Bajagua itself 

could begin site preparation, we could look at ordering the pipe 

now in the beginning of the process rather than waiting for the orders to come after the contract is signed. There are several other 

mechanisms that may shorten the time 3, 4, 5 months. 

What we are looking for is an opportunity to put this in the 

ground. On the outside if I am set free to move forward and get 

full cooperation from the IBWC and the agencies involved, I will 

have it in the ground in 25 months. I have not been threatened 

with a lawsuit and don’t have the same difficulties in front of me 

in terms of finding money from Congress. I will come to you and 

ask you to consider paying me until 2009. That would only be for 

the first few months. 

Mr. FILNER. So when Mr. Nastri said he was interested in the 

most expeditious way of complying with the law, would you say 

your way would be a way to do that? 

Mr. SIMMONS. Absolutely. 

Mr. BOOZMAN. Initially, again we enacted a couple laws, this 

didn’t appear to be very controversial, you went through the process and got as far as you got and now you are having troubles. Why 

is that? How have you gotten crossways with the administration? 

Mr. SIMMONS. Well, I think there is a lawsuit hanging over the 

IBWC and they certainly don’t want to be an agency sanctioned by 

the court for not complying with the Clean Water Act. And I think, 

as the Commissioner put very clearly, this is a complicated project 

30

that involves two national governments, two state governments, 

and several city governments, and his fear is putting all those 

pieces together in a timely way will be more difficult than he can 

deal with. Therefore, he wants to have a plan that will take him 

to his objective of not being sanctioned by the court in order to resolve that sole issue, to make sure he is not sanctioned by the 

court, and therefore in the process lose the vision and the ability 

to see past that and to treat into the future and to create this 

mechanism that will allow this reclaimed water to become a reality. 

I think that that fear is unfounded. If I get the same effort and 

cooperation into helping me with Mexico and things on the other 

side of the border that he has convinced you to put the $66 million 

toward, we will make it work. We are virtually at the door of doing 

that. I have three qualified bidders. Within 2 weeks I could have 

an RFP in their hands and they could be out to bid and we could 

go into construction within 6 months. 

Mr. BOOZMAN. So I guess everyone agrees, as you said and as we 

had testimony earlier, it is a complicated situation in getting these 

things done. So you don’t feel like your timetable is overly optimistic? 

Mr. SIMMONS. I don’t feel as though my timetable is overly optimistic, and I didn’t feel that my previous timetable was overly optimistic had I been given the level of cooperation I believe I should 

have gotten. At this point there are——

Mr. BOOZMAN. Where do you think you haven’t gotten the cooperation specifically? 

Mr. SIMMONS. I think that the International Air and Water Commission could have made a significantly bigger effort to help us 

work through the problems in Mexico. They started off by telling 

us we couldn’t deal with Mexico without them being present, and 

then it was extremely difficult to make them present. So we have 

essentially abandoned that position and we have gone on to work 

with Mexico on our own and we have been very successful. 

I recognize that providing documentation for everything I will 

say to you right now, that is important and we will do that. We 

have convinced Mexico and, as the Commissioner said, Mexico ultimately would be rather stupid if they didn’t take this process forward, but they have made an investment here. He made it clear 

they already paid for secondary, it wasn’t clear it had to be secondary to the United States. They already made the payment, it 

can be in their country. He also made it clear that Mexico needs 

the water and they understand that implicitly. It is also very important that when I walk across the border in a public-private 

partnership that we do that together and make ourselves available 

to each other in a more expedient manner than we previously have. 

My contention is if we can find a mechanism to motivate each 

other to work closely together, we will accomplish this and get it 

done. And I am pleading with the IBWC and the EPA and with 

this Congress to help us do that. 

The reason I am pleading is because again it is a historic process 

that needs to succeed so that when this border has a fundamental 

change and how it moves forward treating infrastructure and water 

31

and how we share the Colorado River and how we do business with 

Mexico, this is an extremely important component. 

I would welcome the participation of Region 9 EPA in the process 

along with IBWC as a fresh breath to come to the table and help 

the differences be worked out. Help us work with Mexico. There is 

significant strength in that approach, and I would welcome that. 

We need to break through the barrier and make this process go forward. 

Mr. BOOZMAN. Thank you, Mr. Chairman. 

Mr. FILNER. Mr. Bilbray? 

Mr. BILBRAY. Mr. Simmons, I am trying to look where do we go 

from here. If instead of going to using our money on site in the Tijuana Valley for secondary and the next allocation to look for is to 

expand the IBWC project to 50 million, another 25 million, could 

you handle, are you going to be on line to handle that next 25 million by the time we can complete an expanded facility? 

Mr. SIMMONS. Yes, our capacity will be at 59 million in the initial 

stage of construction. 

Mr. BILBRAY. My argument is this, my frustration is everybody 

saying, don’t let him do that, whatever, and I would like everybody 

doing their part, but don’t try to do it all. I think the big one right 

now is to start planning now for expanding the existing facility, do 

what it can do and get you working on doing the secondary, the 

reclamation. Let me tell you, Bob’s community, it will be tough selling another 25 mgd in his community let alone going to some of 

the other stuff we have talked about. 

My question is the original proposal for Mexico was to go with 

the plant on the Alamar, not far from where you are proposing a 

plant. The United States negotiators, A-5, Mexico City raised the 

issue that there was no control over the quality of the waste that 

was going to be disposed of in the Alamar and thus into Tijuana. 

That was Mexico’s original plan. 

In lieu of that you asked, or offered, let us treat it, you give us—

in fact the money Mexico paid was supposedly exactly what they 

were projecting for their costs, saying we will build it in our country and by building it in our country we have some enforcement. 

The assumption at that time was there is no way to have any 

control over the quality of the treatment unless we have it in the 

United States. If you were treating in Mexico, what would be the 

way for us to make sure that the quality of the treatment was up 

to the standards that we require, not Mexican secondary, but U.S. 

secondary, what would help you or your payments or what would 

be the hammer for us to make sure, do we have any enforcement 

capability to make that you treat the sewage that comes up to secondary and then no sub-treated effluent is coming back down that 

outfall? 

Mr. SIMMONS. Mr. Bilbray, I can tell you that this Committee in 

the formulation of the law both times foresaw that that could be 

a problem and put in a mechanism that is the ultimate control; 

that is, the quality of that flow, that specifically states that if we 

don’t meet U.S. discharge standards with both the Clean Water Act 

and the California Ocean Plan that we will not get paid. It is simply direct to the pocketbook. It was a mechanism put in place by 

this Committee. 

32

Mr. BILBRAY. What do you think the results would be to the operator or the manager of that plant if they stopped getting payments from the Federal Government because that manager wasn’t 

treating the sewage to a proper level? 

Mr. SIMMONS. Obviously the management would be changed, the 

company would be changed. You have several involvements here, 

not only the U.S. Government has a stake in this, but the bank and 

bondholders, you have the principals who have to put up $30 million of its own money to build the plant. The monitoring in the 

process to make sure the standards are reached is going to be significant. 

Mr. BILBRAY. What you have proposed is that we can fulfill the 

outcome base concerns, that was the reason for siting originally in 

the United States, but because you have the lack of civil service 

protection there is a possibility of even more accountability that 

unlike this happening with our in-house government operation 

somebody doesn’t get the sewage treated, somebody is going it lose 

their job? 

Mr. SIMMONS. Correct. I think most importantly, Congressman, 

is that the original concept of asking Mexico to allow us to control 

this was there are absolutely no sanctions that the U.S. Government can place upon the Mexican government if they don’t perform, and that was the wisdom that this Committee applied to this 

law that said, look, we will tie it to the pocketbook of the private 

company; if that private company does not perform, they will not 

get paid. 

So I think it is a new twist in the process that provides a mechanism of control, an ultimate one in my view, and it also gives an 

opportunity for this facility to rise to a point where it treats to way 

above secondary and keeps the water in Mexico. So the amount of 

discharge along with the quality of the discharge is improved. 

Mr. BILBRAY. Thank you very much, Mr. Chairman. And I think 

the issue was that we never trusted anything in Mexico because we 

always assumed it to be a government-operated facility and there 

was no way for us to be putative or to have an enforcement handle 

on Mexico, but the argument that if you have a private company 

that is getting paid a fee for service, you get a denied fee because 

the service was not fulfilling, something we have not been able to 

do with other projects. 

Thank you very much. 

Mr. FILNER. If I recall, you have an engineering background. 

Mr. SIMMONS. I have—no, I have a planning background. 

Mr. FILNER. Planning. 

Until today when we had earlier meetings with Senator Feinstein and others, I guess I had not realized how far the thinking 

or how far back 10 years of thinking had gone for the $66 million, 

which I guess is to build an activated sludge system, the additional 

not sewage capacity, but technical capacity, to treat to secondary 

standards and your deal as far as I could see. 

Aside from that, what problems are in line with that alternative? 

Why is that good or bad for this Nation? 

Mr. SIMMONS. I think if you look at what it costs to put that in 

place to simply treat only the 25 million gallons for secondary and 

if you look at the costs per thousand gallons treated, it is signifiVerDate 0ct 09 2002 17:30 Feb 13, 2008 Jkt 000000 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 P:\DOCS\36686 HTRANS1 PsN: JASON
33

cantly greater than the overall cost per thousand gallons to go to 

a 59 million capacity. 

In the process of keeping up with the growth in the Tijuana region, which is prolific, if one must plan ahead, at least 5 or 6 years 

out, we are planning out 17, 18 years trying to put it ahead of 

where it is today. If this facility is built on the U.S. side of the border and it has to go through the process that it needs to go through 

there, we are still looking at some spikes. If there are failures and 

problems with this, it doesn’t have the buffering capacity that the 

Bajagua facility has and the potential for continued contamination 

on the border exists and it is not a good expenditure of U.S. funds 

to address that simple one-step solution to provide the 25 and ignore the rest. The 25 million gallons is an important component, 

it provides the basis upon which the whole 59 can be built. 

Mr. FILNER. And as far as the process itself, the activated sludge, 

what is your sense of that as——

Mr. SIMMONS. All of the facilities are activated sludge in one 

sense or another, it is a group of bugs that eat the sewage. When 

you get a toxic spike, significant numbers of them die. The facility 

that is being proposed on the U.S. side is a facility that uses clarifiers and other mechanisms to provide the treatment. It is a relatively small community of biologic effort and so when you get a 

toxic spike that small community of microbes is killed relatively 

easily and so you end up with a whole system that goes down rather than a portion of the system. The mechanism that we have intended to put in place was specifically designed to deal with the 

fact that Mexico has not been successful nor very successful in 

dealing with their toxic spikes, with their pretreatment program, 

and our system has a very big buffer. 

I can give you a very good analogy. If you have a teaspoon of 

cream and you drop it in a cup of coffee it turns lighter. If you drop 

that same teaspoon in a swimming pool, you don’t see it. It isn’t 

quite that dramatic. We planned over the years to be sure if the 

toxic situation doesn’t get resolved in Tijuana, and at this point it 

is not resolved, that we would have a buffering capacity to deal 

with it, and I think that is why we proceeded the way we have. 

I will add this. We are in what we call a design/build mechanism 

for building. Under the design/build, the designer has the ability to 

make changes in what we proposed as our conceptual project. 

Those changes have to relate to two things, he can do it cheaper 

and prove to us and to the IBWC that he is doing it with proven 

technology so we don’t end up with a situation where someone has 

invented something in their garage and they can sell it to us for 

$15 and it doesn’t work. We focus only on the ponds as the preferred alternative. It is a very safe alternative. It does work and 

it will provide the buffer we need to prevent that kind of discharge. 

The reason we don’t want the discharges to get out of context 

with the law, if we don’t stay within the law we don’t get paid, so 

we are buffering to prevent that. 

Mr. FILNER. Aside from political or funding issues, which I raised 

with the earlier panel, cost effectiveness, the capacity, the technology, the specific technology, and the inability to reuse the water, 

it is an inferior kind of plant. 

34

Mr. SIMMONS. Absolutely. I think the only reason there is any 

fear to move forward with a Mexican facility is that the U.S. has 

an inherent difficulty believing Mexico can be controlled in a way 

that can be productive for the United States or completely controlled, and that is the reason we provide this bridge between the 

public and the private sectors that is based on two things. It is 

based on private funds providing the first steps of making sure this 

thing works and then the Congress simply paying for a service. It 

also provides a bridge that brings to Mexico the one thing that has 

always been missing in these dealings with Mexico, and that is 

they now have a valuable commodity that they want to protect and 

preserve. Without that, before that they were simply dealing with 

a problem, now they are dealing with actually making money and 

increasing their ability to provide water to their citizens. It is a 

huge step in the right direction for Mexico. 

Mr. FILNER. On behalf of Mr. Bilbray, are you sure no illegal microbes won’t be able to cross, right? 

Mr. SIMMONS. That is correct. We have them identified, so we 

can pick them up. 

Mr. FILNER. Last chance? 

We thank you, Mr. Simmons, we thank——

Mr. SIMMONS. Mr. Chairman, one more statement. I have with 

me today a letter to Senator Feinstein that is from the Imperial 

Valley Irrigation District. As you know, they are the guys who are 

directly involved with relining of the canal and providing water to 

San Diego and the cross border issues, and they are writing to say 

they are very much in favor of the Bajagua Project going forward, 

providing this extremely valuable resource to the City of Tijuana. 

Mr. FILNER. Thank you for joining us——

Mr. BILBRAY. I want to thank you very much. I appreciate that. 

Let me say, both the EPA and the IBWC, thank you for coming 

this far out east. I am in a grumpy mood because I had to give up 

a day of surfing in my district to talk about pollution problems in 

someoneelse’s district, at a plant in somebody else’s district, and a 

problem from someone else’s country. I think this is what the system is supposed to do, and this is why we have oversight. Let me 

tell what you a pleasure it was to surf where the water was clean, 

warm, and the surf was good. I hope people can enjoy their water 

the way I have enjoyed mine. 

Mr. FILNER. We have I think been helped today. Everybody 

wants an expeditious compliance with Clean Water Act in terms of 

the water that is now being dumped in the ocean that does not 

meet those standards. We want to meet those standards, as was 

said, expeditiously, but we also want it cost effectively in a way—

again, I hasn’t known any of you people before you came with the 

proposal and what I found very important about it, cooperation between Mexico and the United States, water for a desperate nation, 

the ability to treat what we foresee as capacity in the future. 

Mr. FILNER. That is all very important. I was disappointed to 

have our commissioner and administrator define the issue in such 

narrow terms that we will miss an opportunity to do these broader 

things. And I think if I gave Mr. Nastri a choice to look back and 

say, ′′Yes, I got a 25-million-gallon-per-day plant in compliance 

with the Clean Water Act′′ versus ′′Wow, we got 59 million gallons 

35

a day treated in a more environmental way, a more cost-effective 

way, and gave water to Mexico,′′ I think the legacy that you would 

prefer would be the latter. And I think we have that opportunity, 

and whether he wants it or not, we are going to give him the 

chance to have that legacy. 

Thank you so much. This meeting is adjourned. 

[Whereupon, at 4:15 p.m., the Subcommittee was adjourned.]

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