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79–801 PS











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DECEMBER 12, 2001

Printed for the use of the

Committee on Transportation and Infrastructure


DON YOUNG, Alaska, Chairman

THOMAS E. PETRI, Wisconsin, Vice-Chair
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
STEPHEN HORN, California
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JOHN L. MICA, Florida
SUE W. KELLY, New York
JOHN R. THUNE, South Dakota
RICHARD W. POMBO, California
JIM DEMINT, South Carolina
ROBIN HAYES, North Carolina
ROB SIMMONS, Connecticut
HENRY E, BROWN, JR, South Carolina
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SAM GRAVES, Missouri
MARK R. KENNEDY, Minnesota
BILL SHUSTER, Pennsylvania

NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
BOB CLEMENT, Tennessee
ELEANOR HOLMES NORTON, District of Columbia
BOB FILNER, California
FRANK MASCARA, Pennsylvania
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GENE TAYLOR, Mississippi
JAMES P. MCGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania
BRIAN BAIRD, Washington
MICHAEL M. HONDA, California
RICK LARSEN, Washington



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JOHN J. DUNCAN, Jr., Tennessee

STEPHEN HORN, California
SUE W. KELLY, New York
RICHARD W. POMBO, California
HENRY E. BROWN, Jr., South Carolina
DENNIS R. REHBERG, Montana, Vice-Chair
BILL SHUSTER, Pennsylvania
  (Ex Officio)
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GENE TAYLOR, Mississippi
JAMES P. McGOVERN, Massachusetts
BRIAN BAIRD, Washington
FRANK MASCARA, Pennsylvania
ROBERT A. BORSKI, Pennsylvania
BOB FILNER, California
BILL PASCRELL, Jr., New Jersey
MICHAEL M. HONDA, California
  (Ex Officio)



     Bilbray, Hon. Brian P., San Diego Regional Chamber of Commerce, Alexandria, VA
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    Dawson, John R., Director, Office of Mexican Affairs, U.S. Department of State

     Gonzalez, Marco A., Esq., Chairman, San Diego Surfrider Foundation, San Diego, CA

    Hunter, Hon. Duncan, a Representative in Congress from California
    Letter, Art, General Manager, Tijuana Valley County Water District, San Diego, CA
     Ramirez, Hon. Carlos M., Commissioner, U.S. Section, International Boundry and Water Commission, El Paso, TX


    Hunter, Hon. Duncan, of California


     Bilbray, Hon. Brian P
    Dawson, John R

     Gonzalez, Marco A.,

    Letter, Art
     Ramirez, Hon. Carlos M
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Bilbray, Hon. Brian P., San Diego Regional Chamber of Commerce, Alexandria, VA:

City of San Diego, memorandum (contained in the subcommittee file)

    Letter, Art, General Manager, Tijuana Valley County Water District, San Diego, CA, letters and articles


    Murphy, Hon. Dick, Mayor, City of San Diego, CA


Wednesday, December 12, 2001
House of Representatives, Subcommittee on Water Resources and Environment, Committee on Transportation and Infrastructure, Washington, D.C.

    The subcommittee met, pursuant to call, at 10:00 a.m., in Room 2167, Rayburn House Office Building, Hon. John J. Duncan, Jr. [chairman of the subcommittee] presiding.
    Mr. DUNCAN. We are going to have a Journal vote in just a few minutes, but I would like to go ahead and call this subcommittee meeting to order.
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    Congressman Hunter our friend is here but has to attend a conference meeting on the Department of Defense authorization bill, and so we are going to go a little bit out of order and, rather than Congressman DeFazio and I giving our opening statements, we are going to allow him to go ahead and give his opening statement first so he can get on to the Journal vote and the meeting.
    Congressman Hunter, it is an honor to have you here with us this morning.


    Mr. HUNTER. Thank you, Mr. Chairman. It is always good to be here with the Chairman—.
    Mr. DUNCAN. Your microphone is not on.
    Mr. HUNTER. Okay. I am all the way to the right.
    Once again, it is good to be here with my colleague, the Chairman of the Duncan Caucus; and thank you for letting me testify a little bit early here.
    Mr. Chairman, I have a written statement I would like to ask to be included in the record; and I will simply summarize this statement, if I could.
    Mr. DUNCAN. Your full statement will be placed in the record. All full statements of witnesses will be placed in the record, and they will be allowed to summarize if they wish.
    Mr. HUNTER. Thank you, Mr. Chairman.
    Mr. Chairman, last year, working with the San Diego congressional delegation, the Congress unanimously passed and the President signed into law the so-called Tijuana River Valley Estuary and Beach Sewage Cleanup Act of 2000. That was passed to address this cross-border sewage project that we have had plaguing the border between San Diego County and Tijuana for the last 70 years.
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    Over the years, we have had a lot of discussion about possible alternatives on how to approach this problem. And in 1987, pursuant to a treaty between the U.S. and Mexico, we agreed to treat 25 million gallons per day of Tijuana sewage at a facility in the United States. As folks who have followed this saga know, it took 10 years to build a treatment facility. Upon completion, we found out it was woefully undersized.
    So, right now, we have got about 70 million gallons a day of sewage being produced and released into the Tijuana River. Those folks who have followed this know that that directly impacts our beaches in San Diego County and requires quarantines on a regular basis.
    The need for immediate and appropriate action is the primary reason that this title was passed. It is unanimously supported, I might say, by all of our delegation as well as by the full house. We have bipartisan support. There was an urgency attached to the legislation when it was written last year, and we gave at that time a 60-day time frame to commence negotiations. We are now more than 300 days past that unanimous legislative mandate, and all of us are very concerned that we apparently have a lack of interest by the IBWC in proceeding to implement that requirement that we gave IBWC to commence negotiations and to move this project forward.
    Right now, I would simply say that, to kind of summarize, Mr. Chairman, and I look forward to the testimony today from the Commissioner, we have a plan that is a practical plan that allows treatment of sewage in Mexico where it is generated. It is one in which the private sector does this and in which we pay a set amount of money for the treatment of the sewage that is generated and so we get a return on our investment. It can be calculated. It is a finite thing. It is a practical business arrangement that is being proposed.
    The Commissioner wants to go back to what is known as the activated sludge, which is essentially a classic sewage plant built on the American side of the border. The reason that doesn't work is because some of the Mexican sewage—because of the large number of maquiladora plants on the Mexican side you have sludge that is created by sewage from that complex that is extremely toxic. And this dynamic of breaking sludge down that takes place in sewage plants across the country doesn't work well here because there is such a toxic base to this that it halts this biological breakdown process. The result is that you end up having some dangerous stuff going out into the Pacific Ocean, and that has been fairly well documented by a number of technical analyses and reports.
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    So there has been litigation that the net result of which was a judgment which directed that alternatives be examined. The alternative of choice is this idea of having a treatment plant using a series of ponds on the Mexican side of the border that eliminates this problem of the activated sludge. And yet the head of the IBWC doesn't want to do this. It appears to be somewhat reluctant in moving forward. It is, as I understand, the reason for the hearing today.
    So what I would urge is that we have a new beginning here and that we move ahead with this program to build this plant in Mexico and that we move on with it and we solve this problem that has been clouding the beaches of San Diego County for over 70 years now.
    Thank you for letting me testify early.
    Mr. DUNCAN. Thank you very much, Mr. Hunter.
    I am going to go next to Mr. DeFazio.
    Mr. DEFAZIO. Thank you, Mr. Chairman.
    Mr. Chairman, this is an issue that has been before this committee for nearly 2 decades, and we all thought it was resolved a few years ago. As our colleague points out, we have run into some bureaucratic inertia. I am hopeful that this committee can move us past that point.
    My understanding is that the individual head of that Commission is suffering under the illusion that we can return to an already rejected plan placing a settling pond on the San Diego side. That is not going to work. It is essential that we move forward with the international agreement and the treatment on the Mexican side.
    I am hopeful that the leadership of this committee and the members from the affected area will get this in gear. I will do whatever I can to help.
    For the rest of the hearing, I would ask that Mr. Filner assume this esteemed seat of ranking membership at the side of the Chairman.
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    Mr. DUNCAN. All right. Thank you very much, Mr. DeFazio.
    This in most ways of course is primarily a local issue, so I assume we will not have nearly as many members as we usually have at our hearings. On the other hand, because of the location on the border, this becomes a national and even international issue.
    In the last Congress, the Transportation and Infrastructure Committee moved legislation to address the problem of inadequate sewage treatment in the San Diego-Tijuana border region, the Tijuana River Valley Estuary and Beach Sewage Cleanup Act of 2000. This legislation was enacted as part of Public Law 106-457. Today's hearing is to conduct an oversight on the implementation of this legislation.
    Inadequate wastewater treatment has plagued the San Diego-Tijuana border region for a long time. The U.S. and Mexican governments have been working together closely to resolve this problem. Currently, there are treatment plants in both San Diego and Tijuana. However, these plants do not have the capacity to treat all of the sewage generated in the Tijuana area. As a result, untreated or partially treated sewage ends up on San Diego beaches, creating an environmental and public health hazard for U.S. citizens.
    In addition, the treatment that does take place does not meet the Clean Water Act standards, making the U.S. section of the International Boundary and Water Commission vulnerable to lawsuits under the Clean Water Act. To comply with the Clean Water Act, the International Boundary and Water Commission must make sure that any wastewater that it discharges from its South Bay plant meets secondary treatment standards.
    Since the mid-1990's the Commission has put forward two proposals to achieve this. The first proposal, the activated sludge that Congressman Hunter mentioned, was blocked by a lawsuit brought by the Surfrider Foundation and the Sierra Club. The second proposal, building settling ponds next to the South Bay plant in San Diego, was blocked by opposition from the local San Diego community.
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    Recognizing this stalemate and recognizing the need for a comprehensive solution to the issue of sewage treatment capacity in the San Diego-Tijuana border region, last year the Congress provided for a third alternative. This law authorizes the International Boundary and Water Commission to solve its secondary treatment problem by contracting with a private company for sewage treatment services. Obtaining this contract would allow the private company to build a new plant in Mexico that will provide both increased sewage treatment capacity and increase the water supply for the region.
    The legislation recognizes that such an arrangement would require the U.S. to enter into an agreement with Mexico. The law requested the Secretary of State to enter into these negotiations within 60 days. Unfortunately, over a year has passed since the Tijuana River Valley Estuary and Sewage Beach Cleanup Act was enacted into law, but formal negotiations with the government of Mexico have not even begun.
    The purpose of this hearing is not to point fingers over the causes of delay but determine how we can move forward in an expeditious manner to solve this problem. I am pleased to announce that yesterday the State Department received clearance to begin negotiations with the government of Mexico on implementation of this Act. The Director of the State Department's Office of Mexican Affairs is here today and can answer questions about this.
    I also understand that the Mexican government is interested in entering into negotiations with the U.S. on this matter. An advisor to the Mexican government on the northern border affairs is here today and can speak on that issue.
    I have also been told that the Commissioner of the International Boundary and Water Commission has decided to return to earlier proposals to provide secondary treatment at the South Bay plant using activated sludge. It is not clear that this step will result in progress towards solving the sewage treatment problem on the San Diego-Tijuana border. We are looking for the best long-term solution to this problem.
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    I am looking forward to hearing from the witnesses. Unfortunately, we do have this Journal vote that is going on. I assume that the best thing to do would be to go ahead, because I am sure Mr. Filner will need to take his full 5 minutes. So we will recess at this time, and we will come back.
    Mr. FILNER. Mr. Chairman, while Mr. Hunter is here, may I make one point before we recess? I do want to thank you for the hearing. Thank you for being here.
    The purpose of Mr. Hunter being here is that he has been involved in this issue for 20 years. He happens to be a member of the Republican party. I have been involved in this issue for 15 years. I happen to be a member of the Democrat party. Mr. Bilbray is here, who has been with this issue for 25 years.
    Mr. HUNTER. He is an Independent.
    Mr. FILNER. I want to make a point to the Commissioner and to everyone that this is a bipartisan project, and long-term thought has gone into this law. It was not just thrown into the hopper and somebody just took off with it--without thought. There was a lot of thought.
    Ms. Bodine, thank you for working so hard on this. The staff of this committee raised every issue that the Commissioner is raising in public about this law. We had discussions over many, many, many months with staff, the full chairman of this committee, the ranking member of this committee, the chairman of the subcommittee, the ranking member. This was a long process. It was thought out. It was developed over a long period of time in a bipartisan way by people that have dealt with this issue for decades.
    Thank you, Mr. Chairman.
    Mr. DUNCAN. Thank you very much. We will be in recess.
    Mr. HUNTER. Thanks for letting me come in and give my statement early. Appreciate it. Let's have a new beginning here.
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    Mr. DUNCAN. Thank you, Duncan.
    Mr. DUNCAN. All right. We will resume this hearing in just a moment.
    I am going to call on Mr. Filner for any additional comments he wishes to make, but I would like to ask our panel of witnesses to please have a seat at the table.
    This first panel will consist of Ms. Luz Maria Davila, who is a public relations representative from San Diego, California, here representing the Commission.
    Well, I understand there has been some confusion about Ms. Davila being here, and she will not be here to testify today.
    So we will have Mr. Art Letter, who is the General Manager of the Tijuana Valley County Water District from San Diego. We will have a former Member, the Honorable Brian P. Bilbray, testifying here, representing the San Diego Regional Chamber of Commerce; and the San Diego Surfrider Foundation represented by Marco Gonzalez, Esquire, who is Chairman of that Foundation.
    We are pleased that all three of you would take time out from your very busy schedules to be here with us. We will have you begin your statements in just a moment as soon as Mr. Filner has a chance to make any additional comments that he wishes to make.
    Mr. FILNER. I thank the Chairman. Again, thank you so much for this oversight hearing in an area that is not yours and a local problem, although, as you said in your opening statement, it is really an international problem.
    More important, Mr. Chairman, and I think you and your staff realize this, Congress has an oversight function. We passed a law here a year ago that had some dates and deadlines, and the law has not been fulfilled. And it is an important function of this Congress to make sure that our laws are implemented and followed with the intent of the Congress. So that is the importance of this hearing.
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    The problem has been stated by Mr. Hunter very well. We have anywhere from 50 to 100 million gallons every day of raw sewage flowing through the United States through my district into the Pacific Ocean. I don't think any other Congressman can say that. And it is because of geography. It is because the City of Tijuana is growing very rapidly and is not able to fully sewer their city. Until they do, it is U.S. citizens and our constituents that are affected with health and other problems. So we must resolve the problem.
    We thought we did. We have an international treatment plan authorized about a decade ago. It was built on the border. But through delays and for other reasons, it is not functioning at the full secondary treatment level it should and is only able to treat what now has become barely half the problem.
    So, this Congress and various Congressmen wrestled with this and came up with a solution for the comprehensive treatment of this sewage issue which has plagued us for more than half a century.
    As I mentioned earlier, this was a bipartisan approach. Congressman Bilbray, who was then in the Congress but who has represented this area on the county board of supervisors and on the city council and the mayoralty of Imperial Beach, and I worked together and worked out an innovative solution, a public-private partnership that would not only use the most environmentally advanced standards but would comprehensively solve the problem and, in addition, Mr. Chairman, nobody has mentioned this yet, but it would treat water to a standard that it could be returned to Mexico for use, whether that be agricultural, commercial or even potable.
    Mexico is in grave need of water. We saw this as a win-win-win-win-win situation. Not only do we solve the sewage problem comprehensively, but we could send reclaimed water to Mexico. We hoped the problem would be permanently solved. But something happened between the intent of the Congress a year ago and now. Virtually nothing has happened to implement the law, and we are here today to find out why and to move forward.
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    The Commissioner, who was recently appointed to the International Boundary and Water Commission, has made public statements and has written publicly that this will of Congress has no force, that there are too many problems with it, that he didn't have the authority, didn't have the money, whatever. This is a classic bureaucratic obfuscation of what Congress wanted.
    He is dealing with problems in his public statements that we had dealt with a decade ago, that we had solved, that we had gone through. As I said earlier, every issue that he has raised in public was debated in this Congress, was gone over with the meetings and the chairs and ranking members and was consciously dealt with in the legislation.
    So we think we have a good law. We think it has to be implemented. And we know through statements of President Fox's cabinet members, including the border czar, as we call him, Mr. Ruffo, who said that Mexico is strongly supporting this and is just waiting for the United States to begin its negotiations. The Under Secretary for Foreign Affairs, Mr. Berruga, has sent a letter that said the same thing to the State Department. And yet this country has not responded.
    So it is time that, as Mr. Hunter said, we move forward; and I appreciate, once again, you and your staff have been marvelous, Mr. Chairman. We appreciate this oversight hearing.
    Mr. DUNCAN. Thank you very much, Mr. Filner.
    We will begin now with the statements of witnesses. All written statements, all full statements and exhibits will be placed in the record, and witnesses are allowed to summarize their statements.
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    Mr. DUNCAN. Mr. Letter, you may begin.
    Mr. LETTER. Thank you, Mr. Chairman, members of the subcommittee and staff, and especially to Congressman Filner and Congressman Hunter, although he did have to leave.
    I am here today representing the Board of Directors of the Tijuana Valley County Water District who are local government elected officials. They represent over 20,000 citizens who live, work and recreate in the communities and neighborhoods in and around the Tijuana River Valley located at what we like to call the southwestern-most corner of the mainland United States. We also very much appreciate you taking the time, in what I know must be a very hectic schedule for all of you this week, to focus on helping us solve our problems. As has already been stated, these are secondary sewage treatment problems, these are recycled water problems, renegade sewage problems, contaminated surface water problems and the like.
    I just wanted to say that Mr. David Gomez, who is President of the Board of Directors of the District, is also here in the audience today. If I could just recognize him so you all know who he is.
    I will just try to move quickly through this. There is no point in rehashing some of what has already been said about the nature of the problem. I think that it is both a sewage treatment, renegade sewage and contaminated surface water problem as well as a water supply problem. So I will just move along down to the bottom of page 1 of my written testimony.
    The Tijuana River Valley is comprised of approximately 5,000 rural acres, centrally located within a rapidly growing and vibrant binational metropolitan area.
    Some of the very important assets—these are, by the way, in addition to the subject of the beach estuary and the shoreline that you have heard so much about—assets that you will end up protecting and enhancing by following through on the legislation include protecting one of the largest and potentially most important natural estuaries on the West Coast of the Americas; nationally recognized nesting habitats for several endangered species that are considered important by the Federal Government of the United States; the emergence of a 2,000 acre regional park that is being developed by the County of San Diego; a still active but diminishing agricultural base in the Valley; a growing recreation-oriented equestrian base in the Valley; and also a rather sizable by southwestern semiarid standards groundwater basin which the District, who I represent, and the City of San Diego are actively attempting to develop.
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    These are all very important to us, economic, social and environmentally sensitive assets that we know are increasingly being impacted and degraded by this worsening border sewage situation.
    I am going to move along. I am not going to take the time to go through the very twisted and tortured history of all this because I have the sense that members of this committee and the staff already pretty much know about most of this. But just a couple of cogent points that I wanted to raise.
    I believe that if Commissioner Ramirez had spent the last 6 years on the ground in the Tijuana River Valley working on these problems as I have I think he would end up having a very different opinion and impression of what is the best way to solve this problem, and I think that is part of what, you know, we think we are all dealing with here. We have a new Commissioner. We think he really does want to solve the problem, but we just don't think he has the understanding necessary at this point to help us solve the problem.
    Moving along to page 3 of my testimony, approximately this time last year we were all celebrating the passage of the legislation because we genuinely believed that we were now on the way towards completing the project. Legislation was, in our opinion, quite specific in providing a road map for the USIBWC and the USEPA to follow. We believed that the negotiations for either a new Treaty Minute or an amendment to the existing Treaty Minute 283 would start early this year.
    From March to August of this year, we were bombarded with a lot of unsubstantiated reasons for why the implementation of the legislation could not move forward.
    We were told that the government of Mexico did not support this project. We believe that that is not true.
    We were told that there was no money available to begin the treaty negotiations on the project. Not true.
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    We were told that there was no mechanism for having the private sector build this project in Mexico. Not true.
    We were told that the Bajagua project LLC would not use a competitive bid process in entering into contracts to construct and operate the project. Not true.
    We were told that there were no safeguards in place to have the sewage treated at the Bajagua Project meet all the necessary U.S. Federal and State clean water and clean ocean standards. Not true.
    We were told that it would take far longer to complete the Bajagua Project than a government alternative such as one that has been previously promoted by the IBWC and the USEPA. Not true.
    Finally, we were told that the Bajagua Project could not begin because a long-term sewage treatment and recycled water plant had not been completed by the USEPA as reflected in a different part of the legislation. That also is not true.
    So all of these bureaucratic delaying tactics and excuses resulted in very little happening from March to August of this year.
    About August of this year, Commissioner Ramirez assumed the position of IBWC Commissioner. I again will not go through the litany of stuff on page 4 of my testimony, but I do want to go to page 5, because these are very specific things that I think Commissioner Ramirez now has to do with his counterparts. In spite of everything I have previously said, I still believe that Commissioner Ramirez wants to solve this problem. However, he needs very specific direction from the Congress and from the Administration in order to complete the complicated negotiations which are necessary to implement the legislation. These are the next series of things that I think he must do:
    He must immediately open negotiations with his counterpart commissioner in Mexico to either amend the existing Minute 283 or create a new minute.
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    He must recognize the proprietary interest of the Bajagua Project LLC towards the completion of this project.
    He must immediately begin normal negotiations with the Bajagua Project to execute a contract between the Federal Government and the private sector.
    He must reverse his activities of the last 4 months and genuinely and proactively reenergize the local, State, Federal and international consensus which is necessary to complete the project.
    Finally, and I think which is maybe the most important thing, he and his staff must restore confidence and work honestly and openly with us so that we can complete this very important project as soon as possible.
    Finally, Mr. Chairman, I just want to say if Commissioner Ramirez cannot actively embrace these steps it is my firm opinion that he should step aside so that we can have a USIBWC Commissioner who can implement the legislation.
    Mr. DUNCAN. Thank you very much, Mr. Letter.
    Congressman Bilbray, we are glad to have you with us here today.
    Mr. BILBRAY. Thank you, Mr. Chairman. I appreciate the chance to testify before the subcommittee. I appreciate the chance to not only testify as the author of this bill, though some people forget that sometimes nowadays, the fact that Duncan Hunter, Filner, Cunningham and Ron all supported me in this strategy, but it was one that was trying to put together an answer that fit between two barriers and two realities that seem to have been ignored for the last year.
    One reality is it seems that there is an imposed cap on the expenditure of infrastructure in this area that was done by the Democratic majority at that time and subsequently supported by the Republican majority since then.
    The other limitation and reality that I tried to develop around was the fact that you had a court ruling, basically a finding that specifically said that there were certain type of technologies that should be used for treating Mexican sewage. Within those limitations, the legislation went to what was possible, not what somebody somewhere else wanted to do but how we could finally address this issue, and the legislation was meant to get the job done.
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    Now, let me say, though, that I today am representing the San Diego Regional Chamber of Commerce specifically because the Chamber feels that one of the essential parts of expecting increased economic and social prosperity along the border, these environmental problems that have been ignored for too long have to be addressed. These are festering sores in relationships with our friends to the south, and we need to address those. As a group that always talks about how important our relationship with our Mexican neighbors are, people tend to ignore the problems that tend to create major barriers.
    I guess, more importantly though, I am here to testify as somebody who grew up in a city that was polluted by a foreign government, by a foreign impact, while the United States Government sat by and fiddled and talked and said, oh, how terrible, but never took care of the problem. You are looking at somebody who grew up walking down to the beach and seeing pollution signs and saying Mexico has done this to my neighborhood.
    When we talk about international relationships, think about what kind of impact that places on the children in my neighborhood, thinking that their government doesn't care enough to protect them from this type of problem.
    Mr. Chairman, let me remind you it doesn't take an act of Congress and it didn't take an act of Congress for San Diego to stop polluting San Diego Bay. It shouldn't have taken an act of Congress for Boston Harbor to stop polluting their own bay. It has taken an act of Congress to finally get somebody to address this issue.
    The local community cannot do it alone. This is a Federal responsibility, and only the Federal Government can address this issue.
    Now, at the same time, let me point out that the impact that has been caused here has caused me to work for over 25 years on this issue. I was there when Ambassador Gavin in 1985 stood up and drew the line and said, Mexico, we have to cleanup this problem. I was there when the original minute order was negotiated.
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    Let me remind you it was the United States that demanded that the treatment facilities be on the U.S. side. Mexico's original proposal was always to treat as much of their sewage in their neighborhood on their side of the border.
    The fact is that when the project was moved forward the local community and myself and the congressman from the area was willing to step treating a foreign problem within their neighborhoods just to get rid of the problem. The fact is, once that project was initiated, there was an intervening lawsuit showing there was a deficiency in the technology according to the Clean Ocean Plan.
    They went to court. I didn't agree with the lawsuit. The congressman from the area didn't agree with the lawsuit. The local community didn't agree with the lawsuit. But there was a lawsuit. The lawsuit was settled and came down on the side of the fact that there were certain technologies that needed to be changed.
    What we have today is a well-intentioned but misguided approach thinking that we are going to go back to square one where we were over a decade ago and try to reinvent a situation ignoring the two major barriers: a congressional imposed cap and a court ruling that says that your original plan is deficient.
    Now, I would ask us to consider right now that the treatment of the sewage at the original site has been changed from two major components. The goodwill of the local community has been lost. They don't trust the Federal Government to address this issue appropriately in their neighborhoods anymore so now you see opposition. You have got the local representatives who oppose the original plan. And the only alternative that I saw put together was to go back to Mexico, work with Mexico, work with the private sector, and come out with an outcome base that would treat the sewage in an appropriate manner.
    Now let me say something that a lot of us forget. This is not just treating the water for the people in the beaches. It is also protecting what is the largest estuary and sanctuary in the United States.
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    It is sort of interesting, if I may vent, that half of my own town of Imperial Beach was condemned by the Federal Government because this estuary was so important for environmental preservation that from almost the month that that wildlife preserve was condemned it has been polluted by sewage. That is quite an indictment on people who claim to care about the environment, are willing to spend Federal money to buy land but not willing to stand up and try to work out a project to cure it.
    Mr. Chairman, one of the major challenges that you have today is the fact that we have had three commissioners. I have watched them all come and go. The trouble is the new commissioner comes on, tries to pick up where the other one left off and ends up starting back where the first one started. What I am asking today is that we send very clear messages that the Commissioner understands that he cannot turn back the clock. He cannot ignore the two major realities, a cap and the fact that there is a court ruling, and move forward with a plan that was a consensus document. It was a consensus not between Brian Bilbray and his constituents but a consensus between Brian Bilbray and his constituents, Duke Cunningham and his constituents, Bob Filner and his constituents, Duncan Hunter and his constituents, Ron Packard and his constituents, and the American people and their Congress and President.
    Now, sadly, I have got to tell you that it was sort of ironic the day I was voted out of office the President signed this bill into law. But, frankly, that was a privilege. Because my entire political career since 1976 has been involved in this issue; and, frankly, I am very frustrated to see that, a year after the President signed the emergency—basically, we were saying this is a crisis—a year after it was signed into law, to see nothing being done except excuses of why the will of the Congress and the President cannot be implemented by the administration of this country.
    So I would just ask you, Mr. Chairman, to try to work with the new Commissioner, try to get him to understand that we do not want the wheel reinvented, that individuals who preceded him have tried what he is proposing and that we do not want to see another 5 to 10 years of litigation. The fact is, finding excuses not to get it project done is not going to make sure that the next generation of kids who goes down to that beach isn't seeing those red signs.
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    So I would ask you, Mr. Chairman—my children grew up with this pollution problem. They are second-generation sewage kids. That is a hell of a title to put on somebody. I would ask you that we send a clear message today to make sure my grandchildren don't end up as third-generation sewage kids. And, Republican or Democrat, you know, Congressman, Senator or member of the Administration, we all say we stand up for water quality and protection of human life, protection of wildlife and our natural resources. The trouble is, can the system respond to the need and can we respond so that we can solve this issue?
    The reality is there, Mr. Chairman. Let's not turn the clock back. Let's move forward.
    Thank you very much. I appreciate the chance to be able to be here today.
    Mr. DUNCAN. Thank you very much, Congressman Bilbray, for a very interesting and heartfelt testimony.
    Mr. Gonzalez.
    Mr. GONZALEZ. Thank you, Mr. Chairman, members of the subcommittee.
    My name is Marco Gonzalez. I am here as the Chairman of the San Diego County chapter of the Surfrider Foundation. In addition, for approximately 4 years I have been engaged in the practice of environmental and natural resources law, representing not only the Surfrider Foundation but other entities, other environmental groups around San Diego County and the State of California. I am also the Senior Attorney at the San Diego BayKeeper Environmental Law and Policy Clinic, and this issue has set squarely before me and my clients for some time now.
    Just to let you know what the Surfrider Foundation is, we are a nonprofit international environmental organization. We are dedicated to the protection and enjoyment of the word's oceans, waves and beaches. We have 52 chapters throughout the United States and Puerto Rico and four international affiliates in France, Brazil, Japan and Australia. Our members total approximately 28,000.
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    Our members surf. That is important because, quite often, we forget that every single day of the year, virtually no matter how much it has rained, no matter how much sewage is in the water, you can go up and down the coast in San Diego and you can find our constituency in the water ingesting, contacting, feeling the affects of whatever is in the water. It has been said we are the canaries in the coal mine or the indicator species of beach health and safety.
    All I can say is, quite literally, we are sick of the problem in the South Bay. Not only the South Bay but we surf northern Baja California as well. That will factor into some of what I am going to say today as well.
    I would like to recount a little bit of Surfrider's involvement at the border and make a couple of points of where we see things now and how things are going with the current litigation which is on the verge of being resolved with the Federal Government. I would like to point out where we stand with respect to the Bajagua proposal and with the statements recently put forward by Commissioner Ramirez and the IBWC.
    In approximately 1994, the Surfrider Foundation became involved in that unpopular lawsuit that Mr. Bilbray mentioned that was brought by the Sierra Club and that was regarding the selection of a treatment alternative for secondary treatment at the San Diego-Tijuana border. As you will recall, a record of decision was signed choosing activated sludge to treat 25 million gallons per day per the treaty and Minute 283.
    Surfrider Foundation got involved, recognizing that the waste stream coming out of Mexico contained certain industrial wastes and heavy metals and things that, quite frankly, would not be dealt with appropriately using that activated sludge technology. Elsewhere, the ponding technology that we supported had been proven to be better at removing these type of wastes; and not only that they would be less expensive, could be constructed quicker and, very importantly to us, would produce significantly less toxic sludge as a by-product of wastewater treatment. I will touch on that in a minute.
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    With settlement of this litigation back in 1995, the Federal Government agreed to do some studies that would consider the ponding technology on par with the activated sludge and tried to determine through the NEPA process which would be appropriate for this side. Ultimately, in 1998, the Federal Government signed a record of decision altering its previous decision, recognizing that activated sludge was not appropriate at this site and, in fact, choosing completely mixed-aerated ponds, which was the most effective ponding technology that was studied.
    It was about this time also that the advanced primary international wastewater treatment plant came online, that treatment plant having a secondary treatment obligation. Upon discharge, it was immediately in violation.
    Now, prior to signing that record of decision choosing the completely mixed-aerated pond, there was a bit of a delay; and that delay was caused because a private partnership had come forward with the Bajagua Project and convinced EPA that it did have an obligation to consider that as a potentially feasible alternative as well.
    During this interim period I was fortunate enough to meet with the proponents of Bajagua down in Mexico as well as members of Mr. Bilbray's staff to tour certain elements of their project, potential sites for locating the treatment plant, the Tijuana River itself. And, importantly, I got to visit the location where for a number of months the international treatment plant had been—well, the waste, activated sludge waste from the international treatment plants had been deposited down in Mexico.
    You will recall under the treaty the by-product of the wastewater treatment has to be disposed of by Mexico in Mexico.
    Now when I went with the proponents of Bajagua and Mr. Bilbray's staff down to the location I was appalled. I was frustrated and infuriated, as I mention in my testimony. The frustration was that I was taken to a location that was less than an eighth of a mile from the Pacific Ocean, not just anywhere along the Pacific Ocean but virtually adjacent to a surfing break called Baja Malibu, a place where Surfrider members can be found virtually every day when there are waves breaking in northern Baja California.
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    What appalled me that was this sludge waste from the existing advance primary plant was being deposited in open air, on a mesa top, where it was leaching quite easily into the ground where every time it rained it would run off directly into the water. In fact, while I was there I saw a wave stream emanating from this mesa directly into the water. Since that time, I have advised every single Surfrider member I have come in contact with that surfs down there, do not surf Baja Malibu.
    These are the people who I am concerned with. These are the people who are really suffering from the mishandling of the sludge that is produced by treatment at the border.
    Now it was also during this time period that I became more aware of the fact that the 25 million gallons a day required under Treaty Minute 283 was not sufficient to remedy the problem. Recognizing that and recognizing that resources are finite, the Surfrider Foundation took a proactive position on the issue of how much volume needed to be treated. We said there is reason for delay if it means that we will get a larger volume of treatment. Twenty-five million gallons a day was not a solution. A partial solution was no solution. Because at the minute a 25 MGD plan was put online there would still be violations of the ocean plant standards for the State of California and there would still be surfers paddling around and ingesting sewage.
    So that brings us to the lawsuit that the Surfrider Foundation brought against the international treatment plant after it came online. It was because the discharges were not secondary, because the EPA had decided to choose an alternative 25 MGD completely mixed-aerated plant at the border and we felt that the Surfrider Foundation needed to be involved in whatever way we could through the courts to help the government implement a solution that was going to solve the problem once and for all.
    Once again at this point, we did not come forward in support of the Bajagua Project. In fact, the Surfrider Foundation makes a point of not supporting private corporations. We don't provide an endorsement or eco stamp on any such corporation. But what we did do was note that a delay was going to be worth it if we were going to solve the problem.
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    After extensive negotiations in the litigation process, approximately 1 year, the Federal Government and the Surfrider Foundation reached a settlement. That settlement called for the construction of something at the border to comply with its secondary treatment obligation; and, importantly, it also called for some additional monitoring studies to be performed.
    The Surfrider Foundation was involved in a State lawsuit over the design of the South Bay ocean outfall. Although we weren't successful in that lawsuit in the State court, we firmly believe there are design elements with the outfall that caused the sewage discharge there to return to shore and pollute the beaches, regardless of where they are discharged from the river. They come back to shore from the outfall.
    Therefore, a component of our settlement of the current lawsuit was that we would get additional monitoring studies, studies which were recommended but never done, which would identify what the currents and the winds and whatnot offshore are doing and whether this sewage is being transported back to shore from the outfall. Importantly, it would also determine the answer to a question which everyone seems to be asking. That is, whether or not the sewage discharges into northern Baja, into Rosarita Beach and the Playas region of northern Baja are in fact travelling along the literal drift northward into Imperial Beach and Coronado. Therefore, we wanted to—.
    Mr. DUNCAN. Mr. Gonzalez, under the rules of the committee, we are supposed to limit the witnesses to 5 minutes. I have given all three of the witnesses on this panel 8-and-a-half minutes each. I am going to give you 15 seconds to close your testimony.
    Mr. GONZALEZ. Thank you, Mr. Chairman.
    The Surfrider Foundation does not oppose treatment in Mexico. We support treatment to a degree. We believe that if we go back to the activated sludge technology, we are still going to get the deposit of the by-product on the Mesa, and we are going to continue to be harmed and we will continue to litigate this issue.
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    Thank you.
    Mr. DUNCAN. All right. Thank you very much.
    As I mentioned earlier, while this is primarily a local issue, we do have international and national implications that we will hear more about in the next panel, but—and because of that, ordinarily we have had about 18 to 20 members to our subcommittee hearings. Today we knew we would not have nearly that many, but we have been joined by two other members, Mr. Brown of South Carolina and Mr. Shuster of Pennsylvania, and I would like to go first to them for any comments or questions because I know they can't stay for the full hearing.
    But, Mr. Brown, do you have any comment or question at this point?
    Mr. BROWN. Mr. Chairman, I apologize for being late. You know, Mr. Armey was giving his announcement speech on the floor today, and so they asked that we come for that, and so I apologize for not being here at the beginning of this hearing.
    But I understand a little bit about the problem, but what is amazing to me is that the Mexico Government doesn't require secondary treatment.
    Is that what you said, Mr. Gonzalez?
    Mr. GONZALEZ. I don't believe that the Mexican Government requires that level of treatment for its discharges, no.
    Mr. BROWN. I represent the coast of South Carolina, and the beaches are pretty important to us, and, you know, we have EPA monitoring the beaches and a local group monitoring. When the bacteria level gets to a certain level, they actually close those beaches.
    Does Mexico have a monitoring system?
    Mr. GONZALEZ. Currently, my clients and the groups I represent, we are actually engaging citizens to do that testing, because it does not exist in Mexico.
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    Mr. BILBRAY. Mr. Brown?
    Mr. BROWN. Yes, sir.
    Mr. BILBRAY. Let me clarify. Not only do they not have secondary; up until just recently, we had and we still do have what are called renegade flows. Twenty to 30 percent of the city of Tijuana, which is in the millions, is not even plumbed.
    You have got to understand that we are talking about a whole different reality when you are working with Mexico. That is why this proposal—and this is why the Surfrider lawsuit was trying to get the answer to reflect the fact that this is not a U.S. problem on the U.S. side with U.S. sewage and U.S. standards; that it is a Mexico, almost a Third World situation. It is a totally different type of problem, and thus it needs a different answer.
    That is one of the reasons why this proposal goes after a different type of answer, and that is, it is talking about working with a private company, based on fees for service; basically, if you don't treat the sewage, you don't get anything. And my frustration is that I think that this could be a great prototype for future aid in foreign governments and foreign countries, where you don't pay for a white elephant, you pay for a job getting done.
    And people may say, well, how do you have an enforcement? Well, you have enforcement because if they don't do the job, they don't get any money.
    And I want to remind you, in 25, 30 years there has not been one person fired over raw sewage closing our beaches, in the Federal Government. I would challenge somebody to name me one Federal employee who has been terminated because Americans have had to live with this problem. So I think we have got a great opportunity, but it is totally different than what we apply within our domestic territory.
    Mr. BROWN. Okay. Well, Mr. Chairman, I guess we will get further instructions from the Mexican Government, I guess, in the next testimony. Okay. I will withhold the questions.
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    Mr. DUNCAN. And also we will hear from our State Department in the next panel.
    Mr. Shuster.
    Mr. SHUSTER. Thank you, Mr. Chairman. Sorry for my delay in getting here.
    I am not quite sure, the Surfriders, you have initiated a lawsuit. Is that correct?
    Mr. GONZALEZ. We are actually on the verge of settling a lawsuit.
    Mr. SHUSTER. And you support the private entity that is coming in to put this together?
    Mr. GONZALEZ. We don't endorse entities. We support the private law and we support the technology.
    Mr. SHUSTER. Okay. So you are on the same page as Mr. Bilbray?
    Mr. BILBRAY. Yes, we are.
    Mr. SHUSTER. And the problem is going to be significantly improved through the private entity coming in? That is my understanding.
    Mr. GONZALEZ. Exactly.
    Mr. BILBRAY. In fact, Mr. Congressman, right now it looks like the only thing on the horizon that can be a comprehensive answer is the expanded capabilities within Mexico with an enforcement capability such as this contract. So I think everybody agrees that if you are going to solve this problem for the foreseeable future, you have got to have the type of arrangement that is being proposed by this legislation.
    Mr. SHUSTER. Okay. So then the problem lies in dealing with the Mexican Government, getting them to move forward on this?
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    Mr. BILBRAY. The problem is dealing with the United States Government being proactive at initiating a piece of legislation that was signed into law on November 7th last year. The real problem right now is having our own government take the initiative and try something different than what has been tried in the last 30 years.
    Mr. SHUSTER. And that is being held up with the State Department or EPA?
    Mr. BILBRAY. State Department.
    Mr. SHUSTER. State Department, okay.
    Mr. BILBRAY. Or the IBWC, which is part of the State Department, so it is within our own bureaucratic system.
    Mr. SHUSTER. So the three of you all at this table all agree in principle on this private entity coming in and helping to get the Federal Government off the mark in moving forward; is that correct?
    Mr. BILBRAY. I think it is clear to say that the environmental community wants the technology, does not want to go back to the original proposal, which they sued against. And the rest of us basically feel that to get that technology, you need to do it in Mexico, because the local American community doesn't want that technology in their backyard. They want it in the peoples' that is being treated.
    Mr. GONZALEZ. So that is one of the greatest evidences of the State Department's viewpoint of this issue came when the commissioner of the IBWC printed an opinion editorial in our local newspaper on November 9th, on the eve of us settling a lawsuit with IBWC that took 2 long years of negotiation. It was very trying.
    The commissioner printed his opinion editorial advocating the activated sludge technology—did it without contacting us, did it without having his attorneys contact us. We took that as a slap in the face, not only by the commissioner and IBWC, but the Federal Government in general. They are not taking this issue serious enough to give credence to valid projects that will solve the problem.
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    Mr. SHUSTER. Well, thank you for the clarification on that, and thank you all for coming here today. And I guess we need to get to the State Department. I don't know if this committee has jurisdiction over them.     Mr. DUNCAN. Well, they are on the next panel, and that is the purpose of this hearing, to see why in these 13 months since this law was passed, what the State Department has done to begin implementation of this law. Some people say not much, but we will hear from them.
    Mr. BILBRAY. Mr. Chairman, I would be remiss—basically, it would be totally deficient if I didn't point out to the gentleman that I appreciate your predecessor's strong support for this. Without your predecessor, this bill never would have gone through the House and never would have been signed into law. So if you will tell Dad, thanks.
    Mr. SHUSTER. I will pass that on to him. Thanks.
    Mr. LETTER. Mr. Chairman, if I may?
    Mr. DUNCAN. Mr. Letter, yes, sir.
    Mr. LETTER. Thank you. I just wanted to say to you and to the members of the committee that it is very difficult to talk about this issue in this short amount of time that we have here today. If the committee and the staff wanted to do a full-scale investigation of this situation, the district would be more than happy to cooperate with that investigation, get to all of the specifics that we really haven't been able to talk about today.
    Mr. DUNCAN. Well, a great deal of the work that the subcommittee and the committee does is done not in the public hearings, and there has been a lot of work done on this issue already. We do have to provide some limits at these hearings, and as I noted, we have given each of the three witnesses so far 8-1/2 minutes, when we usually give them 5 each; and you will get additional time in the questions.
    Mr. Filner.
    Mr. FILNER. Thank you, Mr. Chairman. I want to add, thank you, Mr. Brown and Mr. Shuster, for being here.
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    As Congressman Bilbray said, Mr. Shuster, this bill could not have passed without the support of your predecessor, and that is why we are here, to find out why it hasn't been implemented. He was very involved in those discussions and a very tough person to persuade on certain items. So the legislation reflects his critical stance on it also.
    And I want to thank also everyone who offered testimony today. Mr. David Gomez is the President of the board of the Tijuana Valley County Water District and has played, over the course of the last decade, a major role in getting us to solutions. And I want to thank him for being here and playing that role.
    Mr. Shuster, you asked at the beginning, is this a Mexican problem? And I am sorry that Ms. Davila could not participate in this panel today. I have had many discussions and read many of the pronouncements of Mexican officials over the last couple of years.
    Mr. Fox, the new President of Mexico, created a new position. We call him the Border Czar. He is called, officially, the Commissioner of Northern Border Affairs for Mexico, Mr. Ernesto Ruffo, who knows these issues intimately. He has, in conversation with me, in articles, in interviews, expressed the Mexican Government's full support of this project; that they were in fact, under their protocol, waiting for the U.S., our State Department, to begin the negotiations called for by the law.
    In fact, the President has appointed his Under Secretary of Foreign Affairs, Mr. Berruga, as the negotiator. He has sent a letter to the State Department asking for negotiations to begin. They have had no response.
    Under their protocol, under the treaty that exists, if it changes, it should be initiated by the U.S. State Department. They have not done that, and yet, in various ways, the Mexican Government has said, yes, they are willing. The commissioner of our International Boundary and Waters Commission has stated, well, Mexico has all these problems.
    Well, that is the point of negotiations. Go to the table and deal with the problems.
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    As a matter of fact, Mr. Ruffo has stated to me and to others, and in public and in the press, that many of the issues which our commissioner has raised, problems of so-called ''sole source,'' for example, are not problems. They are issues to discuss.
    There is nothing in Mexican law or the Mexican constitution preventing the project from moving forward. So whether we are talking about the market for reclaimed water in Mexico or the laws about a competitive bid or issues that our side has raised before there were negotiations, they are simply not problems, but certainly issues to sit down at the table and figure out.
    This is, as I said earlier, a win, win, win. Mexico gets reclaimed water, vitally needed. The U.S. Government is paying for the project. It is a public-private partnership where the taxpayers win, and the timetable for the project gets it done far faster than anything that our government has proposed.
    So I think we have had the testimony to all of that, and we are asking here today the question that you asked, Mr. Shuster: Why hasn't this started? And we have heard from our testimony the necessity for it. We have heard the health problems; it is an emergency, and yet our State Department, as instructed by law, has not proceeded to move forward. A simple phone call by the State Department could have initiated conversations.
    I have had enumerable conversations with members of the State Department, with the IBWC commissioner, saying, what do you need from the Congress to get started? And they say, we don't need anything right now. We have the ability, we have the authorization. And as you know, as everybody in this room knows, when a bureaucracy wants to do something, it could just ask. If it doesn't want to do something, it just says it can't do it.
    Nobody has asked either the Mexican Government or this Congress to give them the tools necessary. We think we have, and they should proceed.
    I thank the chairman.
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    Mr. DUNCAN. All right. Well, thank you very much. I want to thank each of the witnesses on this panel for very helpful and informative testimony.
    We will proceed next with the panel from the State Department and the International Boundary and Water Commission, and we are honored and pleased to have with us Mr. John R. Dawson, who is the Director of the Office of Mexican Affairs at the Department of State. And also we have the Honorable Carlos M. Ramirez, who is the Commissioner of the United States Section of the International Boundary and Water Commission; and he is here with us from El Paso, Texas.
    And so I would like to ask Mr. Dawson and Commissioner Ramirez to please take their seats at the table at this time. We do always proceed in the order the witnesses are listed on the call of the hearing.
    That means, Mr. Dawson, you may proceed with your statement or your testimony. All full statements will be placed into the record, and you will be allowed to summarize if you wish to do so.

    Mr. DUNCAN. Mr. Dawson.
    Mr. DAWSON. Thank you, Mr. Chairman, members of the committee. I am pleased to have the opportunity to discuss with you today the efforts undertaken by the Department of State to implement Title VIII of the Estuaries and Clean Waters Act of 2000. This legislation requests the Secretary of State to initiate negotiations with Mexico for a new Treaty Minute, or modification of Treaty Minute 283, consistent with the provisions of the legislation.
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    Minute 283 was concluded by the International Boundary and Water Commission on July 2nd, 1990, and brought into force as an international agreement between the United States and Mexico on August 8th, 1990. Under this Minute, the United States has an obligation under international law to treat to the secondary level 25 million gallons per day of Tijuana sewage at a facility in the United States, with the cost to be shared between the United States and the Mexican Governments.
    Pursuant to this Minute, the U.S. section of the IBWC has constructed and now operates and maintains the South Bay International Wastewater Treatment Plant on the U.S. side of the border near San Diego. In the interest of addressing public health concerns, the South Bay treatment plant began treatment of Tijuana sewage at the advanced primary level.
    Efforts to complete the project to a secondary treatment level have been complicated by a series of lawsuits and a congressionally imposed spending cap. In an effort to respond to the impasse, Congress passed Public Law 106-457, which calls for secondary treatment in Mexico under a public-private partnership arrangement of a total of not more than 50 million gallons of day of effluent from the South Bay plant, if such treatment is not provided for at a facility in the United States.
    Consistent with past United States practice, we initiated, in December of 2000, the steps necessary to enable the Secretary of State to delegate to the IBWC the authority to negotiate a new Treaty Minute. To this end, I am pleased to report that we have just reached interagency consensus on a U.S. Government position that allows us to move forward and requests to grant the USIBWC negotiating authority. We anticipate that that authority will be granted shortly.
    This grant of negotiating authority, required because IBWC Minutes constitute binding international agreements, confirms that the matter to be negotiated has been reviewed by all relevant agencies, that it is consistent with United States foreign policy objectives and that legal authority exists to negotiate the proposed agreement. Once the IBWC concludes negotiations with representatives of Mexico, it will need to obtain from the State Department subsequent authorization to sign the proposed Minute.
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    This will entail a similar interagency review. Authorization to sign will be contingent upon confirmation that there are funds adequate to fulfill the proposed amendment, or that the President has made a determination to seek the required funds.
    In anticipation of receiving the negotiating authority, we have engaged in preliminary and informal discussions with Mexico. Initial indications are that the Government of Mexico has an interest in the arrangement called for in this legislation. However, the Government of Mexico has also expressed reservations that such an arrangement would be unprecedented in Mexico where all wastewater treatment plants are currently federally owned. Mexico has stated that an arrangement such as that contemplated by the law must be consistent with Mexican law, will require open and competitive bidding and should be deferred until Mexico can review the final recommendations of a regional planning effort.
    Moreover, Mexico has stated that their positions on many of the issues raised in the legislation would not be set forward officially until we begin formal negotiations. Recently Mexico has requested the initiation of consultations with the IBWC to jointly study the proposal for possible application towards increasing secondary wastewater treatment capacity and the feasibility of locating such a plant in Mexico.
    Thank you for the opportunity to testify today. I would be pleased to respond to any of your questions.
    Mr. DUNCAN. All right. Thank you very much, Mr. Dawson.
    Commissioner Ramirez.
    Mr. RAMIREZ. Thank you, sir. Mr. Chairman, members of the subcommittee, thank you for the opportunity to come before you today.
    The United States International Boundary and Water Commission has as its charge applying the rights and obligations which the governments of the United States and Mexico assume under the numerous boundary and water treaties and related agreements, and to do so in a way that benefits the social and economic welfare of the people on the two sides of the boundary and improves relations between the two countries.
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    Typically, such agreements, subject to the approval of the two governments, are recorded in the form of minutes done in English and Spanish, signed by each commissioner and attested by the secretaries of the respective sections. Normally, the agreements entail the planning, construction, operation and maintenance of joint works, manner of sharing the costs and other joint activities. I have come here today to discuss one such joint activity, the treatment of Tijuana sewage and our efforts to implement the Tijuana River Valley Estuary and Beach Cleanup Act of 2000. As recognized in the legislation, San Diego is geographically downhill and downriver from Tijuana, and the flow of its untreated sewage requires a binational solution.
    The USIBWC has made items to comply with the law. It sought authority to negotiate, pursued informal discussions with its Mexican counterpart and requested appropriations to implement the public law. To better understand these efforts, I must tell you about where we have been and where we are today.
    The subject of Tijuana sewage has been a topic of binational interest since the mid-1930s, how to treat it, where to treat it and how to handle the effluent had been discussed and evaluated by both sides for years. In Appendix A you have a summary of that history.
    These discussions gave rise to Minute 283 that was signed July 2, 1990, and Minute 296 that was signed April 16, 1997. They are also in Appendix B of your package. Minute 283 contemplated treatment for up to 25 million gallons per day of Tijuana sewage to occur in the United States. Treatment was to be done at the secondary level by a process using sludge digesters. The discharge of the effluent, unless Mexico requests its return, was to be using an ocean outfall some 3.5 miles out into the Pacific Ocean. The USIBWC, as the implementing agency, and the EPA, as the construction funding agency, performed environmental studies and adopted this position that the secondary treatment be activated sludge.
    Now, due to cost considerations and the urgent need to provide some level of treatment to Tijuana sewage, the United States has partially fulfilled its obligation in constructing in San Diego an advanced primary treatment facility known as the South Bay International Wastewater Treatment Plant. The process is 25 million gallons per day of Tijuana sewage which would discharge to the ocean outfall. The USIBWC and the EPA performed the appropriate environmental studies and adopted a decision for this interim level of sewage treatment. In Appendix C you see a picture of the plant.
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    Now, in May of 1994, the first record of decision was signed by USIBWC, the EPA and the U.S. Corps of Engineers, selecting activated sludge as what would best serve the overall public interest, comply with the National Environmental Policy Act and included all practicable means to avoid or minimize environmental harm. However, as you have heard, litigation ensued which resulted in an agreement to perform the supplemental environmental documentation to reevaluate treatment options for secondary treatment.
    Among the factors listed for warranting reevaluation were increasing budgetary constraints and additional technical information on the feasibility of ponds. As a result of this reevaluation, the completely mixed aerated pond system was designated as a selected alternative for reasons that included cost-effectiveness and a buffering capacity against toxic spikes.
    On December 8th, 1999, both EPA and the USIBWC signed the Record of Decisions, selecting the completely mixed aerated ponds as the long-term solution for secondary treatment based on cost-effectiveness. Construction of the ponds, however, has not begun because funding was unavailable due to spending cap and public concerns.
    Now, Congress passed the Tijuana River Act on November 7, 2000. As that bill made its way through Congress, new lawsuits were brought against the USIBWC under the Clean Water Act for noncompliance with the National Pollutant Discharge Elimination System permit. The permit issued to the USIBWC was for the operation of a treatment facility to secondary standards, as required by State and Federal law. Given the history just outlined, there is no secondary treatment today, just the advance primary plan; and so it continues to be out of compliance with secondary standards and, therefore, the litigation under the Clean Water Act continues.
    Today the project is not yet complete, and there is no secondary treatment. There is also no funding for secondary treatment at the South Bay International Waste Treatment plant. In light of the pending litigation, USIBWC faces possible fines and imposition of court orders. It is also faced with diplomatic consequences, including failing to meet the obligations of the United States under the referenced Minutes, that is, Minutes 283 and 296.
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    This now brings me to our compliance with public law. The Tijuana River Act requested the Secretary of State to initiate negotiations with Mexico within 60 days after enactment of this act.
    My predecessor opened discussions with the Department of State in November of 2000 to develop a United States Government position for negotiations with Mexico. In December 2000, he requested formal authority to proceed with negotiations with Mexico. In tandem with these discussions, my predecessor informed the Mexico USIBWC commissioner in December of 2000 of the general nature of Public Law 106-457, and described the legislation in more detail in January of 2001.
    The Mexican commissioner observed that the project development approach departs from practice of the United States and Mexico for IBWC projects and requested formal transmission of the law for his internal consultation. A copy of the law was provided in January 16, 2001.
    In a subsequent meeting discussion on March 2, 2001, the Mexican commissioner informed that his government welcomed the United States Government funding, but considered that the contracting should be subject to Mexico's laws concerning competitive bidding. Further, he stated that such arrangements should defer to the completion of a comprehensive regional plan being developed by Mexico in Tijuana.
    The Mexican commissioner requested a formal proposal. This information was reported to the Department of State for consideration in developing negotiating authority to the United States IBWC commissioner. In addition to these efforts to implement the public law, USIBWC requested appropriations in fiscal years 2001, 2002 and 2003.
    We have complied with the first requisite of the public law to seek negotiations with Mexico by consulting with Mexico informally at an early stage for guidance on its interest and issues. Through our discussions with the Department of State, we have sought the authority to negotiate an agreement with Mexico, taking into account the Mexican Government's comments concerning conformance with Mexico's laws and prospective regional planning. These discussions have taken into account questions of the extent of the financial exposure to the United States in the public law project, and the extent of enforcement of contractual performance obligations, including financial and water quality standards in a foreign country.
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    The issues raised by Mexico impact on a number of considerations. There is the matter of enforcing domestic and environmental laws in the event of default. If the United States were the permit holder, it would be subject to injunction for violations in the Clean Water Act. Since Mexico has stated that the facility in Mexico cannot be owned by the United States, in the event of a default there is the question of how we would assume responsibility for operation and maintenance of the facility.
    Given these concerns, negotiation with Mexico could take longer than some may project.
    Mr. DUNCAN. Could you sort of summarize? You have been 9 minutes now.
    Mr. RAMIREZ. Yes, sir.
    The USIBWC is committed to implement the law as devised by Congress. We have just been advised that interagency consensus has been reached on a U.S. Government position, and once notified by the Department of State that we are authorized to commence negotiations with Mexico, we will do so immediately. It is in the interest of the urgency, because we recognize that there is a problem, and we recommend conducting supplemental environmental impact studies on the merits of the projects and the options. We have been in contact with OMB, and we will provide to OMB a quantification of the different options.
    The USIBWC does support Congressman Filner's efforts in finding solutions. We want to cooperate with the Congress, and we assure you we are doing everything possible to comply with the law.
    Thank you, sir.
    Mr. DUNCAN. All right. Thank you very much.
    Mr. Dawson, you said that negotiating authority was going to be granted shortly. Now, ''shortly'' means different things to different people. What are you talking about?
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    Mr. DAWSON. I would say that we have now completed, as I said, the clearance process, which is always the most time consuming within this.
    We, now, haven't gotten the final clearance. This required a few changes in what we already had prepared. We are going through that. We should have it up to the Secretary of State, or his designee or one of the under secretaries who has to approve this, I would say by the end of this week; and I would hope that they would be able to act on it by the end of the year.
    Mr. DUNCAN. And let me ask you this. Commissioner Ramirez has said that negotiations may take longer than some have projected. You are the Director of the Office of Mexican Affairs. You have great knowledge about Mexico, I would assume.
    What do you project? What is your rough guess or estimate as to how long these negotiations might take?
    And secondly, do you believe that the Mexican Government is sincerely interested in solving this problem, or do you think that they just look upon us as a country with big, deep pockets, and they really want us to pay for everything and solve this problem ourselves?
    Mr. DAWSON. Well, I would say that Mexico is indeed sincerely interested in entering into negotiations with us. I think that they are also recognizing the problem they have with their sewage treatment. They are looking not only at this project, which would have U.S. taxpayer funding, but also looking at other sources of funding for other projects.
    They are working with the Banco—the NAD bank, which are two other organizations created under the NAFTA treaty that have independent sources of funding for other projects for wastewater treatment in the Tijuana area. So Mexico is not only willing to engage us on this effort, but they are also looking at other efforts interdepartmentally on their own, which I think would help.
    In terms of the time, IBWC engages in these negotiations and may have a better guess; one rule of thumb is the negotiations that created the South Bay facility, the original wastewater treatment. That law was passed in 1987, and the Treaty Minute was concluded in 1990. So indeed these can be long and protracted negotiations, but we will make every effort to move them ahead.
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    Mr. DUNCAN. You wanted to make a comment, I believe, Mr. Ramirez.
    Mr. RAMIREZ. Yes, sir. As Mr. Dawson has stated, each Minute is unique. This particular negotiation might take longer simply because of the complexities of the public law and the concerns that have been expressed by the Mexican Government. As Mr. Dawson stated, Minute 283 took 3 years to negotiate. On average, Minutes take at least 6 months, could take up to 3 years.
    So as soon as the go-ahead is given, we will start negotiations. I believe that negotiations can start as early as the middle of January, and the reason I say that is because, in Mexico, as most of you know, the Mexican Government basically shuts down from about December the 19th through January the 7th. So during that time frame, we don't expect that the Mexican commissioner or his people will be available; but as early as the second week of January, we could commence negotiations.
    Mr. DUNCAN. Well, I have to tell you that when you talked about how long these might take, Mr. Letter got a very frustrated look on his face and threw up his hands. And you said that the average negotiations took as little as 6 months or as much as 3 years, but you said this negotiation might take longer than the 3 years that was involved in the South Bay negotiations.
    Mr. RAMIREZ. Sir, we just don't know. I am giving you an estimate, but we just don't know, because again we are dealing with another country, and we don't know what issues they will bring to the table and where they could compromise or where they would not be able to compromise. So at this point in time, I am just giving you an idea.
    Mr. DUNCAN. I understand that you used to be the Mayor of El Paso.
    Mr. RAMIREZ. Yes, sir.
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    Mr. DUNCAN. And I think that is one of the most difficult jobs in the entire country, to be the Mayor of a major city. But let me ask you this.
    I understand that Mexico is still treating some sewage through their old facilities that they have in Tijuana, but those treatment facilities don't meet U.S. standards, and also that they are paying for some of the treatment that is being done at the South Bay facility. Is that correct?
    Mr. RAMIREZ. Yes, sir. Under Minute 283—.
    Mr. DUNCAN. All right. Would you tell me how much the Mexican Government or Tijuana is paying each month?
    Mr. RAMIREZ. They are making payments over a 10-year period. I can later submit to you in writing the payments that they have been submitting.
    But let me state that under Minute 283, the U.S. and Mexico agreed to build the San Isidro plant in San Diego to secondary standards. That Minute has not been changed. So the obligation between Mexico and the U.S. to complete the South Bay plant is still in place until something else is negotiated. So I would be glad to submit at a later date the amounts that Mexico has paid.
    Now, let me also clarify, Mexico is paying based on secondary treatment, not primary treatment, secondary treatment.
    Mr. DUNCAN. I understand that they are paying a very minimal amount over a long period of time.
    Mr. RAMIREZ. That is correct.
    Mr. DUNCAN. And I really think that the Mexican Government should be ashamed at how little they have done in taking care of this problem up to this point.
    I ask unanimous consent that Congressman Hunter now be allowed to join us on the dais and participate in the hearing. Without objection, that will be so ordered.
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    I will go next to Mr. Filner.
    Mr. FILNER. Thank you, Mr. Chairman. Welcome back, Mr. Hunter. I know we want to move forward.
    I would just say, for those who are coming to this issue new, the testimony is making it sound like everything is fine. I am amazed, because here we are 13 months from the passage of a law, and virtually nothing has been done. I don't know how the agencies involved have complied with the law.
    The folks in front of us, from my personal knowledge have impeded us at every step of the way. I hope that that will change and we will move forward.
    It took you a year to reach interagency consensus. If somebody was interested in doing that, that could have been done far faster. So you are talking about how long it will take to negotiate with the Mexicans. You guys have taken a year just to come up with the authorization, and now you are saying it will be done next week. I don't know that it won't be done in another year unless we are watching very carefully.
    Do you need any money, Mr. Dawson, from this Congress to start those negotiations?
    Mr. DAWSON. The State Department requires no funding.
    Mr. FILNER. The State Department requires no additional money. Did you hear that, Mr. Ramirez? You have said over and over and over again in public session—and I have heard it and I have seen it on tape and I see it in the paper, that you don't have any money to negotiate and therefore you can't. Did you hear what Mr. Dawson said? You have the money to negotiate.
    Mr. RAMIREZ. Congressman Filner, with all due respect, in order—we have been requesting in fiscal year 2001 and 2002 the amount of $1.5 million. That money is necessary because we need to have studies done, environmental studies. There has to be costing of the project. There has to be a lot of issues settled that cost money.
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    In fiscal year 2001, there was no appropriation made. In fiscal—.
    Mr. FILNER. We passed the legislation and we asked the IBWC and State Department if they needed money in the proposal. They told us—your predecessor told me, the State Department told me, they did not need money; they had the money to negotiate.
    Why are you not starting to negotiate?
    Mr. RAMIREZ. As I stated, sir—.
    Mr. FILNER. Your superior said you have the money. He doesn't need it.
    Mr. RAMIREZ. No. We have to have authorization to negotiate and the consensus was just reached. So that came first. The authorization will be given in the next week or two, as Mr.—.
    Mr. FILNER. You need $1.5 million to make a phone call?
    Mr. RAMIREZ. No. We need that money to have studies done.
    Mr. FILNER. The law is done. You have the law. It says to do it. What further study do you need?
    Mr. RAMIREZ. Environmental studies need to be conducted. There has to be evaluations of the—.
    Mr. FILNER. To start these negotiations?
    Mr. RAMIREZ. The scope of work—.
    Mr. FILNER. To start these negotiations, do you need $1.5 million?
    Mr. RAMIREZ. Yes, sir.
    Mr. FILNER. Mr. Chairman, I think this gentleman is in contempt of this Congress.
    The State Department official here said he needed no money; He said he needs $1.5 million just to make a phone call to start negotiations. This is what has caused the problem for the last year, this kind of thinking. I mean, to the average person, does that sound reasonable?
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    Mr. RAMIREZ. Mr. Filner, please, we are not in contempt of court—of the Congress. What I am stating—.
    Mr. FILNER. You are in contempt of Congress. I have heard you say at public sessions that this law, it doesn't have any effect on you, that it was passed just as an afterthought, that you had no responsibility to follow this law of Congress. I have heard you say that, Mr. Ramirez.
    Mr. RAMIREZ. Mr. Filner, with all due respect, I don't—.
    Mr. FILNER. I saw you laugh when someone said that Congress has the authority here, and you and your staff just burst out laughing.
    Mr. RAMIREZ. Mr. Filner, that was misreported by the Union Tribune, and we since have corrected the record. They printed a retraction of that, sir.
    Mr. FILNER. Mr. Gomez was there, and he says no.
    Look, I don't understand: you just said you cannot do these negotiations without $1.5 million.
    Is that what the record said, Mr. Chairman? Is that what he said?
    Could you please tell me why you can't start in the middle of January, as Mr. Dawson just said you could?
    Mr. RAMIREZ. As soon as we receive authorization, we will notify Mexico formally that we can start negotiations, but again this project is a big project. It is going to be done in another country. It involves the technology that we need to have environmental studies done on, and this requires funding.
    Mr. FILNER. Mr. Ramirez, there is a law of Congress. I stated earlier that this law took a long time to deal with. Mr. Bilbray wrote it after 25 years of experience. Mr. Hunter has been working on this for 20 years; I have been working on this only 15 years. We went through EPA. We went through IBWC. We went through the State Department. We had cross-discussions. They raised all these issues. Your predecessor raised them.
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    Mr. RAMIREZ. Yes, sir.
    Mr. FILNER. His predecessor raised them. We have dealt with them in the law. We have answered every single objection that your bureaucracies have raised. You guys don't want to do it, and that is why the law was passed. You don't even need the law to do what we passed. Mr. Bilbray wrote the law because you wouldn't respond and you are still not responding.
    Do you see the frustration, Mr. Chairman, of why we have had this hearing? He is not willing to even say that we are going to proceed here.
    The Mexican Government has said over and over again, start negotiations. We will deal with these issues. They need the water. They need the sewage treated.
    Mr. Ramirez did say in his testimony what an emergency the situation is, and you sit here and say, we can't do it.
    We will give you any amount of money you need. Nobody has ever asked us for more money. I sat with Mr. Bernal in the budget discussions, your predecessor. He put aside the 1.5 million that he said he needed and it is sitting there. You have got the money. Don't give us this nonsense.
    So I just don't know what to do, Mr. Chairman. You have an appointee of the President, well qualified, as you noted; a good background. We have an emergency that he is not willing to work on. You tell me what we should do.
    Mr. Shuster, you are looking at this as an outsider.
    Mr. RAMIREZ. Mr. Filner, let me—.
    Mr. FILNER. Can I be frustrated here?
    Mr. RAMIREZ. Mr. Filner, let me again state, we are not in contempt of Congress. As soon as the formal authorization is given, we will enter into negotiations with Mexico on this public law.
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    Mr. DUNCAN. All right. Thank you very much, Mr. Filner.
    We will go next to Mr. Shuster.
    Mr. SHUSTER. Thank you, Mr. Chairman. I have only been here 7 months, but when I hear this kind of talk, it is frustrating to me. In fact, I am from the private sector, and how do you know, how can you even project how long a negotiation is going to take until you start it? Let us get to the table. Let us sit down. Then we will find out and then we can make projections.
    I don't understand—it sounds like you are contradicting each other. Mr. Dawson says you can start; and Mr. Ramirez, you say you need the money before you can start. It is confusing to me, and I can understand the people in that part of the world, how frustrating it is.
    So is the Mexican—and some of the information I have read says that the Mexican Government is ready to start negotiations. Is that your understanding, that Mexico is ready to go?
    Mr. RAMIREZ. My understanding is that, in talking to my counterparts, they are awaiting for the formal notification for us to start negotiating. Now, the negotiations, per se, can take place, but in conjunction with the project, there has to be some studies done, and those studies do require funding.
    So in answer to the question again, we can start negotiations when we receive the official notification. That is not a problem.
    Mr. SHUSTER. And you believe that will come by the end of the year?
    Mr. DAWSON. That is certainly our hope, yes.
    Mr. SHUSTER. And who has to approve that, exactly?
    Mr. DAWSON. The Secretary of State or his designee, which will be one of the under secretaries. But it is within our building now, and I think we can move it forward and have it completed by the end of the year.
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    Mr. SHUSTER. All right. Well, it is completely frustrating to me. I can understand Mr. Filner's frustration on this, and I hope you move forward.
    And again, I would just say, get to the table. Start talking to them so we can move forward on this.
    Mr. FILNER. Would the gentleman yield?
    Mr. SHUSTER. Certainly.
    Mr. FILNER. Mr. Ramirez, do you know that the City of San Diego has offered—from funds that they had under settlement of certain lawsuits, offered you $1 million to do these things? Did you read that letter that the City of San Diego wrote to you?
    Mr. RAMIREZ. No, sir.
    Mr. FILNER. The City of San Diego has offered to give them the money that they need for the environmental work. The project proponents have offered to give them the money they need to get this. They have never responded.
    How do you deal with an agency for 13 months that doesn't respond to these offers? Everybody is saying, we want to do it, we want to do it. They never respond, and then they say, we can't do it.
    That is what is happening, Mr. Shuster, in this case.
    Mr. SHUSTER. Mr. Ramirez, is there a desire on your part to proceed with this; or is there some other reason you don't want to.
    Mr. RAMIREZ. No. I had visited San Diego, and I know there is a problem. I empathize with the people of San Diego. I had visited with the mayor of Imperial Beach, and I know how frustrated she is over this issue. So we recognize the problem. We recognize there are many options. We want to pursue—to resolve the problem.
    Now, Chairman Duncan alluded to something that I need to state. There is a huge problem in Tijuana, and realistically, the solution would have been for Mexico to build the treatment plants in Tijuana.
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    Mr. FILNER. The law has been passed, Mr. Ramirez. The law has been passed. There are no options.
    Mr. RAMIREZ. The country of Mexico has not funded building the necessary treatment facilities in Tijuana. So it is the United States' problem to solve a Mexican problem.
    Mr. SHUSTER. Well, if you get to the table on this project, I mean, don't you believe you can hammer those things out?
    Mr. RAMIREZ. And we shall do that, as we have done in previous Minutes with Mexico. We have every intention to negotiate in good faith with Mexico on this public law and any other solutions that we can find to face this problem.
    Mr. SHUSTER. Well, you have got to get to the table first. So I would urge you to do that and I yield back my time.
    Mr. DUNCAN. All right. Thank you very much. Mr. Horn.
    Mr. HORN. Thank you, Mr. Chairman. I was debating myself when I came in here as to whether this is a charm session or not a charm session.
    Commissioner Ramirez, I am curious. You continue to recommend the activated sludge option for the South Bay International Wastewater Treatment Plant. The Surfrider Foundation has testified that they will file a lawsuit opposing this option. A lawsuit could delay this project for years or block it completely.
    How can you consider this as a viable solution to your immediate needs to meet Clean Water Act standards? What is your feeling on that?
    Mr. RAMIREZ. The reason that the activated sludge was mentioned, Congressman, is the fact that we have a Minute, Minute 283 right now, that is in place and that was signed, and it is in force between the U.S. and Mexico. That Minute 283, as it stands today contemplated the building of the South Bay International Waste Treatment Plant. That treatment plant was supposed to be built according to Minute 283 to secondary standards using sludge digesters. For many reasons, lawsuits, funding caps, et cetera, the only thing that was built was the advanced primary treatment plant.
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    When we negotiated with Mexico, if we changed Minute 283, then the activated sludge portion goes away; but as it stands today, that Minute 283 still has as part of the agreement with Mexico the sludge digesters.
    Now, if the negotiations with Mexico go in the direction of putting everything in Tijuana, that is fine. We will do that. But recognize one thing. We have an investment in the United States with the treatment facility, with the outfall of millions of dollars that needs to be used. So we could conceivably continue to treat up to 25 million gallons per day to the primary advance and then have to pump it back to Mexico for additional secondary treatment.
    The facility in Tijuana is being looked at for 50 million gallons per day. So there is going to be a need for that facility; in addition to treating the secondary level, what we are sending back, they are going to have to treat at the primary level an additional 25 million so they can then treat it to secondary standards as well.
    So that is the reason that we are mentioning the activated sludge. And, again, it is because of Minute 283. If negotiations with Mexico go in a different direction, then that is the direction we will follow.
    Mr. HORN. Commissioner Ramirez, the Office of Management and Budget, the Department of Justice have told us that you may be able to meet the Clean Water Act standards in the short term by sending your wastewater to one of the facilities operated by the City of San Diego. Do you intend to pursue this option?
    Mr. RAMIREZ. We are in discussions, in discussion with the City of San Diego to pursue short-term options. That is in line with the settlements that we are in the process of negotiating, yes, sir.
    Mr. HORN. Do you intend to pursue that option and ask this committee and your local congressional delegation for help to pursue this option?
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    Mr. RAMIREZ. It certain requires funding, and it would be helpful if the option was funded, yes, sir.
    Mr. HORN. Is there an estimate at this point?
    Mr. RAMIREZ. We have some approximations, but I can send a written response and give you the exact numbers that we are looking at. No problem.
    Mr. HORN. And have those been signed off by the Administration?
    Mr. RAMIREZ. I hope so. I believe so.
    Mr. HORN. When was it submitted to OMB and Justice?
    Mr. RAMIREZ. This was submitted to OMB within the last 2 months, and OMB has looked at it and is in the process of—because of the fact that it would help in the settlement of the lawsuits, they are in the process of processing the request.
    Mr. HORN. Thank you, Mr. Chairman.
    Mr. DUNCAN. Thank you very much, Mr. Horn.
    Mr. Hunter.
    Mr. HUNTER. Thank you, Mr. Chairman. I am looking at the Record of Decision. Have you taken a look at that, the so-called Record of Decision for the IBWC long-term.
    Mr. RAMIREZ. The first one or the second term?
    Mr. HUNTER. What is that?
    Mr. RAMIREZ. There were two Records of Decision, one in 1994 and one in 1999.
    Mr. HUNTER. This one, I believe, is in 1999, signed by John Bernow. Is that right?
    Mr. RAMIREZ. That was 1999, the second Record of Decision with the completely mixed aerated ponds. That was the one with the CMA ponds.
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    Mr. HUNTER. Yeah. And you talked about the need to do environmental studies. I am reading this Record of Decision, and I quote here; I am looking at Page 2.
    ''in accordance with NEPA and agency regulations, the final SCIS identifies a completely mixed aerated pond system at the Hofer site as a preferred alternative. A notice of availability for the SCIS was published in the Federal Register.'' so they obviously have done environmental impact studies with respect to this alternative, and reading further, it says, ''The CMA pond system at the Hofer site was selected for the following reasons:
    ''number one, environment tally preferred.'' and it explains why it is environmentally preferred.
    ''second, buffering capacity. Third, land use. Fourth, sludge quantity and quality. Fifth, cost effectiveness. Six, timeliness.'' .
    Which of those do you disagree with?
    Mr. RAMIREZ. I don't disagree with any of them, sir, and it is not—.
    Mr. HUNTER. Well, how many—go ahead.
    Mr. RAMIREZ. Quite frankly, it is not our being opposed to that technology. It is the residents of the area who don't like to have ponds because of the odors that the ponds would create.
    Mr. HUNTER. You are talking about in Mexico?
    Mr. RAMIREZ. No. In San Diego, in the United States.
    Mr. HUNTER. Well—.
    Mr. RAMIREZ. The second Record of Decision was for CMA ponds in the U.S. The residents of San Diego don't want ponds, because they object to the odors it would create.
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    Mr. HUNTER. But the science that was behind using this ponding system has been environmentally analyzed. I mean, that is what this Record of Decision indicated, right?
    Mr. RAMIREZ. That is correct.
    Mr. HUNTER. This isn't space-based lasers here. We are talking about sewage ponds. Right?
    Mr. RAMIREZ. Yes, sir.
    Mr. HUNTER. Then why do you think we need to have further environmental studies on this ponding system?
    Mr. RAMIREZ. The Records of Decision that was made in 1994 and 1999, there is a lot of information that was not available at the time, and today we have access to more information. That is why I am saying that if we proceed with any option in the U.S. that additional environmental studies be done to make sure that we proceed with the correct or the best option.
    Mr. HUNTER. Well, but they are using sewage ponding operations all over the world right now, right?
    Mr. RAMIREZ. Excuse me?
    Mr. HUNTER. They use sewage ponding operations in a lot of places. I mean, this is a method that is used by hundreds of locations around the world, right?
    Mr. RAMIREZ. That is correct.
    Mr. HUNTER. This isn't complicated. So as we have experience with these ponds around the world, every day you are going to have some guy who goes down to one of these ponds, writes down some new data piece.
    But in terms of the basics, in terms of having less sludge, the buffering capacity, the cost-effectiveness, the timeliness, the reason that people around the world have gone to ponding systems is because they work, and they work reasonably well. So in light of the fact that we have been fighting this problem for 20 years, in theory, if you are always waiting for the last piece of environmental technology before you build anything, you will never build anything, because there will always be something that is going to be coming up next week—some new publication, some new analysis, right?
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    Mr. RAMIREZ. Right.
    Mr. HUNTER. How do you intend to proceed from this point in light of that? You have got a Record of Decision that involved an environmental impact analysis with respect to this ponding system. Apparently it works.
    Mr. RAMIREZ. Right.
    Mr. HUNTER. And it is preferred by the Record of Decision? The technology is preferred? And the reason why they lay that out for the technology being preferred is because it is more cost-effective, right?
    Mr. RAMIREZ. Right.
    Mr. HUNTER. It is more timely. The sludge quantity is smaller, and that is a function of the process, not where it is located, right?
    Mr. RAMIREZ. Right.
    Mr. HUNTER. Then why don't we move ahead with it?
    Mr. RAMIREZ. The second Record of Decision was made, as you stated, and the reasons were environmental and financial. It did not say that activated sludge was a bad solution; it just said this would be now the preferred solution.
    Mr. HUNTER. But they did say it was cheaper than activated sludge?
    Mr. RAMIREZ. That's correct.
    Mr. HUNTER. And it is quicker.
    Mr. RAMIREZ. And it requires more land. And that is a problem, because if you look at the land availability next to the South Bay International Waste Treatment Plant, there is only enough space to have ponds to treat 25 million gallons per day.
    Mr. HUNTER. But I thought we were talking about the offer that has been made here to do this in Mexico.
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    Mr. RAMIREZ. Right, but I am just saying that the second Record of Decision was for ponds to be constructed in the United States. If the ponds are constructed in the United States, we are limited with land next to the South Bay International Waste Treatment Plant.
    Mr. HUNTER. But we are talking—.
    Mr. RAMIREZ. We could only put 25 million gallons per day in treatment ponds. We could not put more than that.
    Mr. HUNTER. But the only offer that has been made here is to do it in Mexico, right?
    Mr. RAMIREZ. Right.
    Mr. HUNTER. For the reason you just laid out?
    Mr. RAMIREZ. Correct.
    Now, in the negotiations with Mexico, we are going to have to address Mexico's environmental laws. We need to recognize that Mexico's environmental laws are different than ours.
    Mr. HUNTER. But they are using ponds in other places in Mexico?
    Mr. RAMIREZ. That is correct.
    Mr. HUNTER. Okay. So they obviously have looked at this the technology. They have used it. They accept it, and they now utilize it, right?
    Mr. RAMIREZ. Right.
    Mr. HUNTER. Then why is that a problem?
    Mr. RAMIREZ. Well, because since we are using Federal U.S. taxpayers' dollars to build this plant in Mexico and since the effluent—if not utilized in Mexico, it is going to come back to us and be disposed of through the outfall into the Pacific Ocean, we need to ensure that this plant, when built in Mexico, will operate under U.S. standards and comply with all Federal and State, U.S. regulations.
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    Mr. HUNTER. Okay. My understanding was that--we have the offers, or the offerers, here to testify or answer questions—they intend to make this effluent available for the industrial base, the business base in Mexico.
    Mr. RAMIREZ. That is correct, sir.
    Mr. HUNTER. Well, then why do you say we have to make sure it meets our standards, because it is going to come back to us.
    Mr. RAMIREZ. Well—.
    Mr. HUNTER. It can't come back and stay at the same time.
    Mr. RAMIREZ. Congressman Hunter, right now there is no infrastructure in Tijuana to do that.
    Mr. HUNTER. Well, there is no plant either.
    Mr. RAMIREZ. They have to build it.
    Mr. HUNTER. And there never will be, if you get your way.
    Mr. RAMIREZ. As I said, we will negotiate, and if it is built in Mexico, so be it. But do recognize that if it is built in Mexico, it has to be built to U.S. standards, because if it is not utilized in Mexico, it is going to come back through our outfall into the Pacific Ocean, so it has to be required to operate to U.S. standards.
    Mr. HUNTER. But wait a second. How can you ensure that it meets U.S. standards if you never enter into negotiations?
    Mr. RAMIREZ. And that is what we are going to address in the negotiations.
    Mr. HUNTER. Let me ask you one last question.
    I thank for all the time you've given me here, Mr. Chairman, on this issue.
    How do you intend to proceed at this point?
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    Mr. RAMIREZ. We will negotiate in good faith based on the decision to proceed; and with the support of the Federal agencies, we will enter into the negotiations with Mexico pursuant to the public law.
    Mr. HUNTER. Okay. But what's your time schedule? You can make a deal in 6 days or 6 years.
    Mr. RAMIREZ. Well, I read the public law. I had have it here with me. This is a complicated law; it has a lot of complexities.
    Mexico has expressed an interest, but they have also expressed some concerns with how to proceed within the Mexican system. So I stated earlier it could take at least—as little as 6 months, but minute 283 took 3 years. So I cannot tell you with certainty that we could do this within a year. We will try to do it as quickly as possible.
    Mr. HUNTER. But you are going to engage immediately on this?
    Mr. RAMIREZ. Yes, sir. As soon as we have the formal authorization to proceed, we will contact our Mexican counterparts and we will set meetings to start negotiating in January.
    Mr. HUNTER. Thank you, Mr. Chairman.
    Mr. DUNCAN. All right. Thank you, Mr. Hunter.
    Mr. Filner.
    Mr. FILNER. Thank you, Mr. Chairman. I will try to be calm, Mr. Commissioner, but it is my constituents, it is American citizens whose health is under attack here and we need to solve it. We can't have bureaucrats sitting around saying how many problems there are without trying to solve them.
    Let me be very clear. Minute 283 says to build a 25-million-gallons-a-day secondary treatment plant. We passed a law, Mr. Ramirez, which you don't seem to understand, that said we are going to go to another minute that will treat at least 50 million gallons a day by the most advanced process with enough land to do the job. 283 doesn't do the job. We are building on that. And the genius of Mr. Bilbray's legislation is that we are saying, we are going to negotiate a new minute.
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    You keep trying to implement the old minute. The old minute is anachronistic. You can't implement it. Stop trying. It is going to cost more to treat the sewage—it is going to cost more to treat half the problem than the Bajagua project will take to treat the whole problem.
    Do you think Congress is going to give you any money if the Congressman from the area says, don't give me money for that project? They have lots of reasons not to give me money. If I say I don't want it, you can be damn sure I ain't going to get it; it is not going to be appropriated.
    So stop. Stop trying to do activated sludge. It is a solution that we looked at a decade ago. It is cost ineffective. It is environmentally ineffective. It only solves half the problem, even if you succeed.
    Negotiate the new treaty. Solve the whole problem. And all the issues you raised come out of that sitting at the table. I have gone through all those problems with mr. Ruffo. They can be settled. I can work with him in a day and settle it, believe me.
    The Bajagua people sent you a contract in March. Nobody has ever answered them. That is where the money for your studies are going to come from. You are going to have a contract with a private firm that guarantees the standards that you say you want. That is what the contract is all about. Sit down and negotiate it. That will make sure the United States is protected as you want and I want.
    They have given you a contract. It has been 8 months and nobody has even bothered to answer. If you don't like it, counter-offer.
    The things are on the table, Mr. Ramirez. Get to the table. They are there. Stop the activated sludge. There ain't going to be no money for it, and it costs too much anyway, and it is wrong. We disposed of that a decade ago.
    Stop—there is no interim solution.
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    We found a method. IBWC rejected it, EPA rejected it. So we passed a law to force you to do it. We are going to keep forcing you to do it. If we have to find you in contempt of Congress, we will move toward that. If we have to do other things, we are going with the Duncan caucus here to oversee this, to make sure it happens, if we have to get, you know, back here every 2 weeks or something for a report.
    But we passed a law. It says negotiate, renegotiate the treaty. If you come back after 6 months and say, we can't do it, then we will take a different path.
    But you have never even tried it.
    Negotiate the treaty, negotiate the contract. They can build the ponds to go from 50 to 100 million gallons a day. Mr. Duncan was absolutely correct about his frustration that this falls on the American taxpayer, but there ain't no other alternative; we are going to get it in a cost-effective manner.
    We have a private partnership building it. You contract for the operation of it, they get the water. We don't have no sludge; they have taken care of it. We don't have no odors, we don't have no ponds. We have that land available for other purposes. It is all ready to go and you come here, and in 6 months you try to overturn something that took years and years, decades, to do.
    Take our word for it, Mr. Ramirez, we have done this for a long time. Try it. If you can't do it, report back to us, but don't stand in the way of it.
    You don't need no money to go forward. The money is there if you did. The City of San Diego has it. The Bajagua project has it. The Federal Government has it if you need it.
    Mr. RAMIREZ. Congressman Filner, you are correct. We will negotiate. I just do want to point out that negotiations have to take place first. An agreement has to be reached between Mexico and us as to how that minute is structured, and when the negotiation is given a way, a direction, that is when any private entity will be contacted.
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    At this point in time, there is no negotiated agreement with Mexico, so that there cannot be any—.
    Mr. FILNER. Because you haven't done it. Just sit down and do it.
    Mr. RAMIREZ. When the negotiations take place, and in the negotiations, a private entity is agreed upon, at that time, the private entity will be contacted.
    Mr. DUNCAN. Thank you.
    Mr. Hunter has additional comment or questions.
    Mr. HUNTER. Thank you, Mr. Chairman. And, again, thanks, Mr. Chairman, for having this hearing. It has been a good hearing.
    You mentioned, Mr. Commissioner, that since you had to presume that some of this effluent would come back, had to be consistent with such standards. I am reading the summary of the decision. It said, in conclusion, The EPA and the USIBWC find that the CMA pond system represents the wastewater treatment option that best serves overall public interest and is consistent with the National Environmental Policy Act, Clean Water Act, and Federal, State and local plans and policies.
    So, in other words, if these fellows follow up the blueprints and build this system as analyzed by this record of decision, or if they do it right, they are consistent with all U.S. statutes and environmental laws.
    Mr. RAMIREZ. Correct.
    Mr. HUNTER. —then I think that what you have got to do is get this program going and get the thing constructed. But they have already made that analysis. You don't have to reanalyze that, do you?
    Do your engineers see any defects in their analysis?
    Mr. RAMIREZ. Again, Mexican environmental law is different from ours. So even though we have done the studies and the analysis on our side, I would imagine that an analysis would have to be done on the Mexican side.
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    Mr. HUNTER. But that is for them to do, if they wanted, right? If they have an objection to this or a problem with it, that is up to them, I would think.
    I see Mr. Bilbray back there; I want to congratulate him on his creativity and hard work in putting this thing together. I wish I hadn't missed his presentation.
    This Administration believes in the validity of the public-private relationship, that is, government working with free enterprise to get things done in a creative way. And I would hope that you don't overlay a massive bureaucratic standard on this thing, that makes it mission impossible to get this thing done, as you go through these negotiations, because they are complex. If you want to kill this project, you will be able to kill it by asking questions till the cows come home. We will end up with a bunch of engineers deciding how many angels can dance on the head of a pin. And you can get this thing basically slowed to a paralytic state if you want to.
    If you want to get it done, you will be able to get it done. And so I would hope that you would really work hard to make this thing go.
    Just one last reflection on the efficacy of free enterprise. I was working this problem about 10, 12 years ago with Mr. Bilbray, and we had massive quarantine of the Imperial Beach beaches. And my dad said, You know, you have been spending too much time on this stuff working this sewage stuff. You have to do more stuff on defense. He said, I am going to solve the problem today.
    I said, Well, Dad you have got IBWC; they are out there working hard.
    He said, I am going to solve the problem.
    He called up his Caterpillar contractors. He had three or four big D-8s delivered to the border. We delivered them on Sunday. Got tickets for it for driving them on Sunday. We threw in a pond right at the international border to catch the sewage that was going onto the beaches.
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    Then my dad called up the cement people. He had them make an emergency connection to the San Diego-Tijuana sewage, or the sewage outfall that goes out at Point Loma. What he did was, because our system was overloaded and we couldn't discharge all of the escaping sewage, we couldn't handle it in our system, he used the pond to back the sewage up; then we let it out during the hours of 2:00 and 5:00 in the morning when our sewage system wasn't being used.
    So we were able to take it off the beaches. Within about a week we solved the quarantine problem. The beaches were no longer quarantined. My dad did that with his own bucks so his kid could work on what he considered to be more important problems.
    But my point is, remember, IBWC flew in 2 days later and allotted $50,000 of overhead to the job that they never touched. But the point is that free enterprise can get stuff done.
    These guys have the creativity to get this thing done, and they are giving you a product. Analysis on cost effectiveness and environmental standards has been made, so please help us out here. I would hope that this is the start of a new beginning with this project where you really seize this bull by the horns and help us get it through to a quick finish.
    Mr. RAMIREZ. Congressman, I am a firm believer in the free enterprise system. I came from the private sector, so I know what the private sector can do. So we will do everything possible within the context of the public law and within the negotiations with Mexico for that to happen.
    Mr. DUNCAN. All right. Thank you very much.
    Mr. Filner has one final question.
    Mr. FILNER. I thank the Chair again for his oversight hearing. I think you see it is needed. Just two last comments, if I may.
    You referred in your answer to me, Mr. Ramirez, to a private contractor. Read the report language of this bill. Read the legislative intent. Bajagua is the proponent here, is the proposer of the facility. That is who will do it. And for all my emotion and hard questioning, Mr. Ramirez, we want to get this done.
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    I will do anything you need to get this done. I will be your biggest advocate here. Mr. Bilbray and I got a unanimous decision by Congress authorizing $200 million for a project in the little corner of the universe we call San Diego. We can get the job done here. Work with us. We will work with you. I will be your biggest proponent to get the job done.
    Thank you, Mr. Chairman.
    Mr. DUNCAN. All right. Thank you very much. And we will conclude this hearing. Thank you.
    [Whereupon, at 12:13 p.m., the subcommittee was adjourned.]