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Legal Problems of Wastewater in Baja California: Legislative Omission

By: Terry Ahtziry Cardenas Banda, attorney and law professor. Special Collaboration: Flor Fierro Silva, attorney specialized in water rights.

The water resource, is of great importance for the development of life in general and human health, on July 28, 2010 the General Assembly of the United Nations approved resolution A / RES / 64/292 by which established that the water resource constitutes a condition for the enjoyment of other human rights such as the human right to a healthy environment, the human right to health, among others. The right to water is called a human right that must be respected and protected by the State. Article 11 of the International Covenant on Economic, Social and Cultural Rights defines the right to water as the right to have sufficient, safe, acceptable, and accessible water for personal and domestic use.

Focusing on this region, the State of Baja California particularly in the City of Tijuana there is a strong environmental and health problems, relating to the pollution generated by fecal waste that throw into national property or infiltrate nearby land some residential developments, which have not yet been duly handed over to the city council for their custody, that is, they still belong to the private initiative. These legal entities do not have the infrastructure to treat the wastewater being exposed to the open air, some of them do not have a permit for discharges, or they have the permit and infrastructure but is not operating and the spillage of contaminated water is continuous, causing a strong focus of infection on the health of the habitants of adjacent and nearby areas, as well as a strong environmental damage unbalancing the ecosystem.

Regarding the applicable legislation for the use and discharge of water we have the Law that Regulates the Potable Water Service in Baja California, it regulates the issues of wastewater discharges, treatment and sanitation, however, our local legislators omitted to take take into account the Federal Legislation consisting of the Law of National Waters, since the reading of some numerals reveals evident contradiction of norms.

The Federal Executive is responsible for the management of the exploitation, or use of the waters of the subsoil, including its extraction and discharge or infiltration of wastewater to recharge aquifers, who will exercise it directly or through the National Water Commission. The municipalities and Federative Entities are concessionaires of this right. According to Article 27 of the Constitution and Articles 1 and 2 of the Law on National Waters, the three levels of government have concurrent powers and coordination in matters of water, whether residual or potable.

Who is responsible for water pollution?

Baja California, is one of the few states in the country that the provision of public services such as water belong to state operating agencies, this being a federal constitutional power of the municipalities, regulated in article 115 section III paragraph a) however the second paragraph that precedes the subparagraphs establishes an exception consisting of the possibility in the opinion of the city council to enter into agreements with the corresponding federative entity so that it directly or through the agency takes over temporarily a public service.

In Baja California, the municipalities have the legal power to provide this water service, their competence is limited to the power to provide land use permits and construction licenses to the fractionators. Due to the lack of regulation of the State Laws regarding the coordination relationship that should exist between the municipalities and the Competent Operator Agency, the consent of the municipal authorities has been granted for the construction of a series of houses, without making sure that the sanitation issue is resolved because they don’t have material competence.

On November 2, 2017, in an interview with the San Diego Union Tribune, the mayor of San Diego expressed his inclination to file a lawsuit against the Mexican authorities after observing a blackwater spill that flowed from the City of Tijuana to the coast of southern California, contaminating the water and causing diseases to people who had contact with the water. For this reason, the mayor of San Diego is leading the work of taking the International Boundary and Water Commission (CILA) to court to force increased pressure on Mexico to stop wastewater spills. The environmental group Proyecto Fronterizo de Educación Ambiental carried out an independent study of water in Tijuana, finding extremely high levels of fecal batteries in the Tijuana Beaches.

It is important to be aware of the situation, the state must guarantee the human right to water, a healthy environment and health, these discharges which contain fecal coliforms violate the human rights described above in a serious manner, are affecting the habitants of the communities, as well as the  comunal land holders of the City of Rosarito and their harvests, likewise upsets the international plane because of the geographic position that have the final point of the discharge of wastewater as is the case of the Pacific Ocean, that borders on the county of San Diego California, United States, therefore, it can even cause an international conflict. The question now is: what actions will the Mexican government take to prevent this excessive water pollution and resolve the conflict that arose with the County of San Diego and the City of Rosarito?

Therefore, two possible legal solutions to this problem are proposed: The first would be the most orthodox reform, consisting of granting the municipalities the power that constitutionally corresponds to water provision and sanitation or a reform to state secondary laws where they are harmonized with the Law of National Waters where the operator organizes an authorization of sanitation as a requirement for the municipality to grant a construction license.

Similarly, the short-term solution to eradicate this problem that is already in force and causes a binational problem is the construction of a treatment plant for the problem areas and the willingness of the three levels of government to cover it through the resources that they are assigned.

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