[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
 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

                                   ____

                    U.S. GOVERNMENT PRINTING OFFICE
36-686                      WASHINGTON : 2007
_____________________________________________________________________________
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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia    JOHN L. MICA, Florida
PETER A. DeFAZIO, Oregon             DON YOUNG, Alaska
JERRY F. COSTELLO, Illinois          THOMAS E. PETRI, Wisconsin
ELEANOR HOLMES NORTON, District of   HOWARD COBLE, North Carolina
Columbia                             JOHN J. DUNCAN, Jr., Tennessee
JERROLD NADLER, New York             WAYNE T. GILCHREST, Maryland
CORRINE BROWN, Florida               VERNON J. EHLERS, Michigan
BOB FILNER, California               STEVEN C. LaTOURETTE, Ohio
EDDIE BERNICE JOHNSON, Texas         RICHARD H. BAKER, Louisiana
GENE TAYLOR, Mississippi             FRANK A. LoBIONDO, New Jersey
ELIJAH E. CUMMINGS, Maryland         JERRY MORAN, Kansas
ELLEN O. TAUSCHER, California        GARY G. MILLER, California
LEONARD L. BOSWELL, Iowa             ROBIN HAYES, North Carolina
TIM HOLDEN, Pennsylvania             HENRY E. BROWN, Jr., South 
BRIAN BAIRD, Washington              Carolina
RICK LARSEN, Washington              TIMOTHY V. JOHNSON, Illinois
MICHAEL E. CAPUANO, Massachusetts    TODD RUSSELL PLATTS, Pennsylvania
JULIA CARSON, Indiana                SAM GRAVES, Missouri
TIMOTHY H. BISHOP, New York          BILL SHUSTER, Pennsylvania
MICHAEL H. MICHAUD, Maine            JOHN BOOZMAN, Arkansas
BRIAN HIGGINS, New York              SHELLEY MOORE CAPITO, West 
RUSS CARNAHAN, Missouri              Virginia
JOHN T. SALAZAR, Colorado            JIM GERLACH, Pennsylvania
GRACE F. NAPOLITANO, California      MARIO DIAZ-BALART, Florida
DANIEL LIPINSKI, Illinois            CHARLES W. DENT, Pennsylvania
DORIS O. MATSUI, California          TED POE, Texas
NICK LAMPSON, Texas                  DAVID G. REICHERT, Washington
ZACHARY T. SPACE, Ohio               CONNIE MACK, Florida
MAZIE K. HIRONO, Hawaii              JOHN R. `RANDY' KUHL, Jr., New 
BRUCE L. BRALEY, Iowa                York
JASON ALTMIRE, Pennsylvania          LYNN A WESTMORELAND, Georgia
TIMOTHY J. WALZ, Minnesota           CHARLES W. BOUSTANY, Jr., 
HEATH SHULER, North Carolina         Louisiana
MICHAEL A. ACURI, New York           JEAN SCHMIDT, Ohio
HARRY E. MITCHELL, Arizona           CANDICE S. MILLER, Michigan
CHRISTOPHER P. CARNEY, Pennsylvania  THELMA D. DRAKE, Virginia
JOHN J. HALL, New York               MARY FALLIN, Oklahoma
STEVE KAGEN, Wisconsin               VERN BUCHANAN, Florida
STEVE COHEN, Tennessee
JERRY McNERNEY, California
VACANCY

                                  (ii)

  


            Subcommittee on Water Resources and Environment

                EDDIE BERNICE JOHNSON, Texas, Chairwoman

GENE TAYLOR, Mississippi             RICHARD H. BAKER, Louisiana
BRIAN BAIRD, Washington              JOHN J. DUNCAN, Jr., Tennessee
DORIS O. MATSUI, California          WAYNE T. GILCHREST, Maryland
JERRY F. COSTELLO, Illinois          VERNON J. EHLERS, Michigan
TIMOTHY H. BISHOP, New York          FRANK A. LoBIONDO, New Jersey
BRIAN HIGGINS, New York              GARY G. MILLER, California
RUSS CARNAHAN, Missouri              ROBIN HAYES, North Carolina
JOHN T. SALAZAR, Colorado            HENRY E. BROWN, Jr., South 
MAZIE K. HIRONO, Hawaii              Carolina
HEATH SHULER, North Carolina         TODD RUSSELL PLATTS, Pennsylvania
HARRY E. MITCHELL, Arizaon           BILL SHUSTER, Pennsylvania
JOHN J. HALL, New York               JOHN BOOZMAN, Arkansas
STEVE KAGEN, Wisconsin               CONNIE MACK, Florida
JERRY MCNERNEY, California           JOHN R. `RANDY' KUHL, Jr., New 
ELEANOR HOLMES NORTON, District of   York
Columbia                             CHARLES W. BOUSTANY, Jr., 
BOB FILNER, California               Louisiana
ELLEN O. TAUSCHER, California        JEAN SCHMIDT, Ohio
MICHAEL E. CAPUANO, Massachusetts    CANDICE S. MILLER, Michigan
GRACE F. NAPOLITANO, California      THELMA D. DRAKE, Virginia
MICHAEL A ARCURI, New York           JOHN L. MICA, Florida
JAMES L. OBERSTAR, Minnesota           (Ex Officio)
  (Ex Officio)

                                 (iii)

                                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

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  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 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 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 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?"
    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 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 treatment 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.
    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 completion 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 
looking 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 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?
    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, 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.
    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?
    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.
    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.
    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 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 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 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.
    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.
    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 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 commitment 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 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 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?
    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.
    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 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 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 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 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.
    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 significantly 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.
    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 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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