New River Pollution in Mexico (NEW)




          CASE NUMBER:         142  
          CASE MNEMONIC:      NEW   
          CASE NAME:          New River in Mexico

I.        IDENTIFICATION
1.        The Issue:
     The New River is the dirtiest river in the United States.  It
was formed in the early 20th Century when U.S. farmers were trying
to reroute water from the Colorado River.  Since its inception,
farmers have viewed it as a disposal cite.  At the end of the 20th
Century, after more than 50 years of bureaucratic stalling from
Washington, the prospects for cleaning up the river are good. 
However, complete restoration of the river will take at least 10
years.  It is more likely that the pollution generated in the
Mexicali, Mexico area as a result of maquiladora-related activity
will be addressed before the pollution generated by the farmers in
Imperial Valley, California and Mexicali Valley, Mexico.  The
important question in this and other cases related to the U.S.-
Mexico border is whether free trade will encourage Mexico to clean
up its environment or whether free trade will degrade the
environment further. 
2.        Description:
     The New River is renowned as being, unequivocally, "one of the
dirtiest in the western hemisphere."  In the early 20th Century,
the river was created to provide irrigation for farmers in Imperial
Valley, California.  Engineers were trying to tap the Colorado
River in Mexico to avoid U.S. federal government regulations. 
Their intention was to create a canal that started in Mexico and
went to the Imperial Valley.  The method used to tap the Colorado
River was poorly designed and it broke in 1905.  The Colorado River
was entirely diverted for 18 months.  By the time the river was
diverted back to its original path, the New River and the Salton
Sea were created.
     The source of irrigation water came from the Colorado River. 
The origin of the New River is 10 miles south of the California-
Mexico border.  It passes through Mexicali and Imperial Valley
before flowing into the Salton Sea, which is 60 miles north of the
border.
     Pollution is collected from three primary sources: the
maquiladoras in Mexicali, agricultural runoff in Mexicali Valley
and runoff in Imperial Valley.  The waste eventually flows into the
Salton Sea.  Essentially, there are two environmental problems: the
pollution that constantly inundates the New River, making it a
life-threatening hazard to humans and other animals, and the
pollution that collects in the Salton Sea, which threatens wildlife
that depend on the sea.  As with many environmental problems, the
pollution generated in this case is the direct result of economic
activity.
     In the case of the farms in Mexico, exports are a significant
factor in production.  At Imperial Valley farms, exports are not a
significant factor in production.  Regarding the maquiladoras in
the Mexicali, Mexico area, trade is integral to pollution.  The
rise in the number of maquiladoras has increased the population in
Mexicali.  The maquiladoras were designed to be an export sector
for Mexican industry.  The increase in population has caused a rise
in the volume of sewage.  Much of the sewage is not treated.
     The health risk of the river is acute.  As of now, 28 viruses
are known to exist in the river, for example, typhoid, salmonella,
polio, e. coli, hepatitis A, shigellosis, and staphylococci.  Some
of the chemicals known to exist in the river are DDT,
dicholomehtnae, polychlorinated biphenyls, and pesticides.
     Two examples illustrate the danger the river poses.  One
regards a man who was murdered: the police originally thought "the
man had been burned to death, but they later discovered the
chemicals in the New River had simply eaten the flesh from his
bones.  The second concerns a woman who became ill: a woman who
visited the New River contracted encephalitis, carried by mosquitos
which breed in the New River. 
     Pesticides, in particular, are a health risk.  Pesticides are
a threat to the workers who use them; they leach into the fruits
and vegetables and ground water; in addition, the wind can blow
them into non-farm areas, causing additional danger to humans and
the environment.  Furthermore, the extent of health risk that
wind-blown pesticides pose is unknown. 
     The impact on the wildlife is severe.  The fish in the New
River have dangerously high levels of DDT and other chemicals in
their system.  Fishermen would be well advised to carefully screen
their catch.  The wildlife in and around the Salton Sea are
devastated as well.  The U. S.  Fish and Wildlife have confirmed
that selenium from farms has reduced the number of embryos of the
Black-Necked Stilt by 4 percent.  In addition, the rise in the
level of salinity is due to farm runoff.  If the level of salinity
is not reduced, the fish population could die off completely. 
     Since the creation of the New River, it has been viewed as a
means of pollution disposal.  In addition, at least since 1944, the
river has had severe pollution problem.  The International Boundary
and Water Commission (IBWC) stated that the river was the "most
urgent" of all the border sanitation problems.  Local residents of
Imperial Valley have tried to get the federal government to take
action for over 50 years.
     The Mexicans have made progress in cleaning up the river.  In
the 1980s, it built a wastewater treatment plant to reduce the
amount of untreated sewage and waste that entered the river. 
Despite this, sewage and industrial waste enter the river.  The
long term goal is to reduce emissions into the river entirely. 
Officials believe that by controlling the waste at the Port of
Entry east of Mexicali, the pollution from the industrial activity
in the Mexicali area will stop.
     In 1995, both governments are attempting to address the
environmental degradation.  Construction on Mexicali II, the second
wastewater treatment plant, began in 1993 yet financing of the
project is not complete.  Financial estimates for Mexicali II have
ranged as high as $400 million but the IBWC believes that a
facility can be built for $60-$100 million and be completed in a
period of 5 years.  To date, the EPA has pledged $47. 5 million. 
NADBank, created by the NAFTA to fund projects such as this, will
contribute to the project but the amount has yet to be determined. 
Clearly, funding is still needed for the project. 
     Currently, the IBWC is managing the project but the management
of the project will switch to the BECC, a NAFTA body.  According to
the NAFTA Supplemental Agreements, the BECC, which is created by
the NAFTA, is authorized to perform a variety of activities.  Part
3, Article 10 of the NAFTA Supplemental Agreements outlines the
functions of the BECC.
     In addition to the treatment plants, the EPA is contributing
to the clean up effort by trying to assess which toxins are in the
river.  In October 1994, the EPA subpoenaed 95 companies to find
out which companies were putting waste into the river.  Only 25 of
the 95 firms complied with the subpoena.  After conducting tests,
the EPA plans to "encourage firms to pre-test waste water before
discharging it."  This project is ongoing.  Regarding pesticides,
substantial solutions for the pollution caused by the pesticides
have not been forthcoming yet. 
     The environmental risks and health risks have existed for many
years; solutions are slow in coming.  The New River pollution
problem is an urgent one.  According to Duncan Hunter Congressman
from San Diego, there is a risk that the cost of clean up could
become prohibitive, if permanent solutions are not enacted in the
near future. 
     The purpose of the following list is to allow a researcher to
pursue this case further, by focusing his research on specific
participants (see Table 142-1).
                           Table 142-1
            Agencies with Interests in the New River
NADBank
State of Baja California Norte (Mexico)
City of Mexicali, Mexico
City of Calexico, California
Imperial County, California
Riverside County
U.S./Mexico Federal governments
State of California
U.S./Department of Justice
U. S.  Fish and Wildlife Service
Environmental Protection Agency
California Department of Health Services
Border Environmental Cooperation Commission (BECC)
Secretariat for Social Development (SEDESOL), Mexico 
International Boundary and Water Commission (IBWC)
Colorado River Regional Water Quality Control Board
California Regional Water Quality Control Board
Environmental Health Coalition
Southwest Network for Environmental and Economic Justice
Comite Cuidadno Pro Restauracion del Canon del Padre y Servicios
Comunitarios
State of California State Water Resources Control Board (SCRCB)
Regional Water Quality Control Board
California River Basin Region
3.        Related Cases:
     Keyword Clusters
     (1) SIC                       = FOOD
     (2) Geography                 = DRY
     (3) Environmental Problem     = Pollution Sea [POLS]
4.        Draft Author:  Ted Pauw
II.       LEGAL CLUSTERS
5.   Discourse and Status: AGReement and INPROGress
     Both countries are working together to bring Mexican
regulatory standards for pesticides into agreement with American
standards.  This is not to say that the Mexican regulatory
standards are poor; there are well over 60 pesticides for which
each country must set a standard.  Different countries have
different opinions.  The Food and Drug Administration (FDA) signed
a Memorandum of Understanding with Mexico which "helped establish
regular communication between the two countries."
     In the case of maquiladoras, the United States and Mexico have
worked together for many years to solve this problem.  The two
countries signed the Border Environmental Agreements in 1983 (see
LAPAZ case).  This agreement addressed a
host of border environmental problems.  The 1983 agreement allows
both countries to ■prevent, reduce, and eliminate sources of air,
water, and land pollution in a 100-kilometer wide zone along each
side of the boundary."  For the first time in their working
relationship on environmental issues, the two countries defined the
principal goals for environmental problems on the border. 
     The Annex III to the 1983 agreement, which was signed on
November 12, 1986 has importance in this case also.  It concerns
hazardous waste created by maquiladoras.  According to Mexican law,
hazardous waste created at the maquiladoras by raw materials from
the United States must be returned to the United States.  This
annex assists this process.  
     The NAFTA is responsible for governing a variety of issues;
one of them is the cross-border pollution relating to the
maquiladoras.  However, it is a weak environmental document because
it does not provide for rigorous enforcement.  It calls for
countries to "consider implementing in its law any recommendation
developed by the Council under Article 10(5)(b)" and to "consider
prohibiting the export to the territories of the other Parties of
a pesticide or toxic substance whose use is prohibited within the
Party's territory."  This wording allows for countries to  ignore
environmental concerns.  Further, the NAFTA's provisions can  be
used only if Mexico's laws which deal with pollution are not being
enforced.  In addition, the U. S.  must provide evidence that there
has been a "persistent pattern" of failure to enforce those laws
(see NAFTA case).
6.        Forum and Scope: NAFTA and BILATeral
7.        Decision Breadth: 2 (USA and Mexico)
8.        Legal Standing: TREATY
     The legal standing of this case has grown in complexity over
the course of 100 years.  The first agreement to work together on
border issues was signed in 1889.  The agreement is known as the
International Boundary Convention, which established the IBWC.  The
Water Treaty of 1944 allowed the IBWC to enforce agreements between
the U. S.  and Mexico.  Activities included making wastewater
collection systems.  Its actions are related to "planning,
construction, operation, and maintenance of joint works, cost
sharing and other aspects of joint activities."  In 1983, the
Border Environmental Agreements was added as a way to address
numerous border environmental problems.  The 1983 agreement allows
both countries to "prevent, reduce, and eliminate sources of air,
water, and land pollution in a 100-kilometer wide zone along each
side of the boundary."  For the first time, the agreement defined
the principal goals for environmental problems on the border. 
Annexes II & III have relevance to this case. 
     Annex II was signed on July 18, 1985.  Annex II and the 1988
Joint U.S.-Mexico Contingency Plan for Accidental Releases of
Hazardous Substances Along the Border established the Inland Joint
Response team (JRT).  The JRT is authorized to respond to
emergencies associated with oil and hazardous substance spills.
     Currently, the legal standing rests in several places.  The
principal place is the NAFTA.  Either of the two countries can file
complaints to the Commission for Environmental Cooperation. 
However, interest groups and organizations, such as Greenpeace, can
file petitions to the EPA, demanding action for alleged violations.

As noted in the Description, as a result of a petition submitted in
1994, the EPA subpoenaed 95 U. S.  companies in 1994 under the
Toxic Substances Control Act (TSCA). 
     Both countries can use current laws to force maquiladora
owners and farmers to comply to current regulations.  Mexico passed
the 1988 General Ecology Law which covers maquiladora-related
pollution.  In the United States, the following laws are relevant:
the Resource Conservation and Recovery Act, concerning hazardous
waste, the Toxic Substances Control Act, Section 11 can be used to
issue subpoenas to obtain information from companies regarding
chemical "use and release", the Clean Water Act, the Migratory Bird
Treaty Act, and the Endangered Species Act (see TIMOWL case).
     Another relevant factor is the existing legal systems in each
country.  Both countries "enact, develop, implement, and enforce
their laws, regulations, and standards within different legal
systems and frameworks."  The U.S. system is built on a tradition
of common law.  Mexico's system is built on civil law, which relies
less on the judiciary for ■developing and interpreting■ the law. 
The primary difference between the two systems is that enforcement
lies principally within the executive branch in the Mexican system,
whereas, in the U.S. system, the judiciary is much more involved in
enforcement.  This points to potential breakdowns in the
enforcement process because it increases the likelihood that
Mexican officials could be bribed by unscrupulous maquiladora
managers and farmers. 
III.   GEOGRAPHIC CLUSTERS
9.    Geographic Locations:
     a.  Geographic Domain:   North America [NAMER]
     b.  Geographic Site:     Western North America [WNAMER]
     c.  Geographic Impact:   MEXICO
10.       Sub-National Factors: YES
     California state law is also relevant.  It has numerous laws
which cover a wide variety of environmental issues pertinent to
this case.  The Fish & Game Code section 5650 relates to pollution
of water ■where it can pass into waters of this State■; this has
direct implications for this case.  The Fish and Game Code
section 7710 provides for the protection of endangered species. 
Health & Safety Code section 5410 covers sewage and other waste. 
The Pesticide Contamination Prevention Act 1986 deals with the
runoff and absorption of pesticides into the soil and the
groundwater.  Standards must be at least as stringent as the EPA■s
standards.  There are also statutes under the following headings:
Water Quality and Wildlife that are relevant.  Moreover, the State
of California has provisions to handle emergencies.  In the event
of an emergency, the Governor■s office of Emergency Services has
the authority to act appropriately regarding New River issues.
11.       Type of Habitat: DRY
     The habitat around the river has a tendency to be a little
wetter than the rest of the desert.  Surrounding the Salton Sea is
2,200 acres of marsh, encompassed in the Salton Sea National
Wildlife Refuge.
IV.       TRADE CLUSTERS
12.       Type of Measure: Regulatory Standard [REGSTD]
     The maquiladoras and farmers are required to dispose of
pollutants in ways that are not harmful to the environment.  The
farmers in the Imperial Valley use tributaries connected to the New
River as drainage ditches.  Don Cox, director of the Imperial
Irrigation District, said that drainage ditches and the New River
are essential to prevent the farms from becoming too salty to grow
produce.  The tributaries drain the fertilizers, pesticides, and
salts from the farms.
13.       Direct vs. Indirect Impact:  DIRect
14.       Relation of Measure to Impact
     a.  Directly Related:         NO
     b.  Indirectly Related:       YES  FOOD
     c.  Not Related:              NO
     d.  Process Related:          YES  Pollution Sea [POLS]
15.       Trade Product Identification: FOOD   
     The products in this case concern products produced by the
farmers along the New River, as well as by the maquiladoras in
Mexicali.  The farmers produce a variety of fruit and vegetables. 
The maquiladoras produce electronic materials and supplies,
manufactured products, transportation equipment, petroleum
products, plastics, metal-related products, and medical supplies. 
16.       Economic Data:
     The economic impact on local economies in the Salton Sea and
Imperial Valley area is quite severe.  The Salton Sea area has a
$76 million tourist industry.  Avid bird watchers add $3.1
million to the local economy annually.  The pollution generated
by the farmers and the maquiladoras decreases the number of animals
which rely on the sea; as a result, the beauty of the sea is
affected adversely.  For this reason, between 1986 and 1993, the
number of tourists visiting the Salton Sea State Recreation Area
dropped by 66 percent.  In Imperial County, the unemployment rate
was 30 percent as of March, 1994.  At that time, the nation as a
whole was experiencing an economic boom. 
     Regarding the Mexican agricultural component of the pollution,
the U.S. receives a significant percentage of all its fruit and
vegetable imports from Mexico.  The U.S. market is an important
aspect of the agricultural sector south of Mexicali. 
     The issue of the maquiladoras in and around Mexicali is
particularly disturbing.  Currently, the population is 710,00 in
the Mexicali-Calexico area.  The U.S. Council of the Mexico-U.S. 
Business Committee estimated that by 2003 the population will be
900,000.  This creates a tremendous pressure for jobs and the
number of maquiladoras could increase as a result of the increased
number of worker.  The number of maquiladoras in Mexicali in 1991
was 122 and the number of employees was 19,400.  The number of
maquiladoras in January 1995 was a little higher at 125, with
19,772 employees.  In addition, social services, need to be
provided and without proper social services for these people, the
risk of environmental abuse increases. 
     The State Department estimates that the NAFTA would open up
opportunities in Mexico for industries away from the maquiladora
sector, thereby reducing the amount of pollution generated in the
area.  This is encouraging since the maquiladora trade has
ballooned since 1980, increasing from $4.3 billion to $27.5 billion
along the entire border area (see TIJUANA
case)..
17.       Impact of Trade Restriction: LOW
     Currently, the problem with the regulations is enforcement. 
In Mexico, enforcement is very lax and evasion is easy.  Bribery of
officials is also a problem.  Recently, more officials were hired
to enforce the environmental regulations but the effectiveness of
the new regulators is unclear at this point. 
18.       Industry Sector: FOOD
     The products range from dates in the Imperial Valley to
strawberries in Mexico.  Table 142-2 contains agricultural data for
Imperial Valley in 1994. 
                           Table 142-2
                Imperial Valley Agricultural Data
                              Acres     Production
Fruits & Nuts                 4,741     $30 million
Vegetables & Melon Crops      113,784   $350 million
Field Crops                   391       $297 million
Seed Nursery Crops            31,000    $29 million
Apiary (Bees)                 -         $ 1. 7 million
Livestock                     390,000   $ 242 million
Totals                        540,000   $ 951 million 
19.       Exporters and Importers: USA and MEXICO
V.        ENVIRONMENT CLUSTERS
20.       Environmental Problem Type: Pollution Sea [POLS]
     The pollution of the New River is a problem that extends to
many parts of the environment.  Formation of pollutants destined
for the Salton Sea begins at the farms in the Imperial Valley and
Mexicali Valley, and at the maquiladoras in Mexicali. 
Pesticides, fertilizers, and salts from agricultural activity
raise the salinity level of the Salton Sea.  Other pollutants,
generated by the maquiladoras and which have yet to be
determined, find their way into the Salton Sea also.  In
addition, there is a possibility that pesticides leech into the
groundwater.  This problem has occurred in Mexico but has not yet
occurred in the United States. 
     The New River is constantly a hazard as a result of
maquiladora waste, making recreational use of the river highly
dangerous throughout the year.  Their waste is dumped illegally
at anonymous sites.  In fact, the NAFTA addresses the issue of
hazardous waste sites.  The U.S. Council of the Mexico-U. S. 
Business Committee estimated that the construction of such sites
in Mexicali would cost well over $38 million. 
21.  Species Information
     Name:          Many
     Type:          Many
     Diversity:     26,071 higher plants per
                    10,000 km/sq (Mexico)
     Regarding fish, the impact has been worse.  As far back as
1984, chemicals stared showing up in fish.  One result of the
increase in toxins in the sea is that the catch of fish is down
90 percent during this decade.  In addition to the Desert Pupfish
(Cyprinodontidae), the pollution adversely affects the Black-
Necked Stilt; reproduction is being curtailed by 4 percent. 
During the winter of 1992, 150,000 Eared Grebes died.  There are
approximately 400 species of birds that live or pass through the
Salton Sea.  (The Yuma Clapper Rail and the Megalornis Canadensis
Mexicanus are two types of birds that pass through.)  Increased
pollution of the sea threatens to reduce the diversity of the
sea, ruining its natural character.  One scientist commented,
"The tough ones learn to adapt and survive; the others move
elsewhere." 
22.       Impact and Effect: LOW and Structural [STRCT]
23.       Urgency and Lifetime: MEDium and 100s of years
24.       Substitutes: Biodegradable Products [BIODG]
     A possible substitute for pesticides is to change the way
crops are grown.  Since World War II, there has been a rapid rise
in single-crop farming.  This type of farming leaves crops
vulnerable to their natural enemy.  Thus, the need for pesticides
rises.  However, there are alternatives.  Greenpeace has the
following recommendations, "introducing and conserving beneficial
insects, rotating and diversifying crops from year to year,
changing tillage practices, selecting resistant plant varieties,
timing the planting of crops to avoid attack by pests or simply
planting crops in their appropriate climate."  In this way,
the farmers in this case could avoid using polychlorinated
biphenyls, DDT, dichloromethane, and other pesticides.
VI.       OTHER FACTORS:
25.       Culture: NO
26.       Trans-border: YES
     The New River affects both the United States and Mexico.
27.       Rights: NO
     A violation of human rights exists only to the degree that
one believes that all men have a right to a clean environment. 
There is no physical abuse of human rights occurring. 
28.       Relevant Literature: 
Arthur Cleveland Bent, Life Histories of North American Marsh
     Birds, (Toronto: General Publishing Co., Ltd., 1963). 
Arthur Cleveland Bent, Life Histories of North American Cuckoos,
     Goat-Suckers, Hummingbirds, and Their Allies Part I &
     II, (New York: Dove Publishing Inc., 1964). 
Bureau of National Affairs, "California County Supervisors File
     Section 21 Petition for New River Testing," BNA
     California Environmental Daily, (January 27, 1994). 
The Bureau of National Affairs, Inc. , "Companies Contemplate
     Options in Wake of Subpoena for New River Chemical
     Data," BNA California Environment Daily, (October 24,
     1994). 
Crabbe, Robert.  "Regional News", United Press International,
     (June 8, 1984). 
Greenpeace, "Toxics", Washington, DC, 1995. 
Greenwire, "Selenium: Farm Runoff Causing Wildlife Deaths in CA",
          Greenwire, (May 2, 1995). 
Hampton, Phil.  "California's Salton Sea Faces Grave Peril,"
     Gannett News Service, (March 6, 1991). 
Hundley, Norris Jr. , The Great Thirst, (Berkeley: University of
     California Press, 1992). 
Hunter, Duncan.  "Testimony March 9, 1995, Congressman,
     House of Representative House Transportation Water
     Resources and Environment Clean Water Act", Federal
     Document Clearing House, Inc., March 9, 1995. 
Chris Kraul, "Peso Turmoil Stalls Construction Gold Rush Along
     Border", Los Angeles Times, (March 13, 1995). 
Marianne Lavelle, "Poisoned Waters Provide Early Test for NAFTA",
     The National Law Journal, (March 21, 1994). 
Jeff Mello, "Environmental Cost of Free Trade■, Business &
     Society Review", (September 22, 1994). 
Newsweek, "In Health There Are No Borders", Newsweek,
     August 1, 1988. 
Office of the President, The NAFTA Supplemental Agreements,
     Washington, DC, 1993. 
Perry, Tony.  "Lovers of Salton Sea Hope to Turn Back Tide of
     Decline", Los Angeles Times, (August 16, 1993). 
PR Newswire, "Birders and National Wildlife Refuge Mean an
     Economic Bonanza for Local Communities", PR Newswire,
     (May 11, 1995). 
Roberson, Peter.  "New River Ranks as Threatened Waterway",
     States News Service, (April 18, 1995).
Secretaria de Desarrollo Urbano y Ecologia (SEDUE), Integrated
     Environmental Plan for the Mexico-U.S. Border Area,
     1991. 
Stein, Jane.  "New River: A Sewer From Mexico", The Washington
     Post, (December 11, 1978). 
Twin Plant News, "Maquiladoras", Twin Plant News, (January 1995).
United States Council of the Mexico-US Business Committee,
     "Analysis of Environmental Infrastructure Requirements
     and Financing Gaps on the US-Mexico Border", 1993. 
United States Department of State, The Environment and Free Trade
     With Mexico, Washington, DC, March 2, 1992. 
United States Environmental Protection Agency, "EPA Summary
     Environmental Plan for the Mexican-U.S. Border Area
     First Stage (1992-1994)", Washington, DC, 1992. 
United States Environmental Protection Agency, "Evaluation of
     Mexico■s Environmental Laws, Regulations, and
     Standards", Washington, DC, 1993. 
United States General Accounting Office, "Hazardous Waste:
      Management of Maquiladoras' Waste Hampered by Lack of
     Information", Washington, DC, 1992. 
United States General Accounting Office, "Pesticides: Comparison
     of U.S. and Mexican Pesticide Standards and
     Enforcement", Washington, DC, 1992. 
United States International Trade Commission, "Production
     Sharing: U. S.  Imports Under Harmonized Tariff
     Schedule Provisions 9802. 00. 60 and 9802. 00. 80,
     1989-1992", Washington, DC, 1994. 
West Publishing Co. , West's Annotated California Codes 1995,
     (St. Paul, Minn.: West Publishing Co., 1995). 
World Resource Institute, World Resource 1994-1995: A Guide to
     the Global Environment, (New York: Oxford University
     Press 1994).
World Wildlife Fund, The Official World Wildlife Fund Guide to
     Endangered Species, Volume 1 and 2, (Washington, DC:
     Beacham Publishing Co., 1990). 

                           References






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