The following post is by Gabriel Eckstein, Director of the International Water Law Project, Professor of Law at Texas Wesleyan University, and Of Counsel with Sullivan & Worcester. He can be reached at gabriel [at] internationalwaterlaw.org. This post is based on a new article by the same title.
The nearly 2,000 mile-long border between Mexico and the United States is hot and dry. Few rivers cross this arid expanse. Yet, despite the lack of visible, life-sustaining water, the region is growing – the combined border population, currently around 14.4 million, is expected to increase 40% by 2020. The reason for this remarkable growth is ground water, more specifically, transboundary aquifers. As many as twenty aquifers straddle the Mexico-U.S. border, many of which serve as the primary or sole source of fresh water for the border’s communities and unique ecosystems.
Notwithstanding the undeniable importance of the region’s transboundary aquifers, neither Mexico nor the United States seem inclined to pursue a border-wide pact to coordinate management of these critical freshwater resources. While recommendations have been proffered for more than forty years, all appear to have fallen on deaf ears. As a result, these resources are now being overexploited on both frontiers as populations and industries pump with little regard for sustainability or transboundary consequences. Moreover, these subsurface reservoirs are being fouled by untreated wastes, agricultural and industrial by-products, and other sources of pollution. Imminently unsustainable, the situation portends a grim future for the region.
If both federal governments are unwilling to take decisive steps, what else can be done? Are there alternatives to a formal, comprehensive, border-wide regime that would address the complexity and multitude of issues related to the various transboundary aquifers on the border?
In a recently published article, I advocate for an alternative approach, one that sidesteps the respective federal authorities and places the burden of pursuing cross-border cooperation on the communities that so depend on these critical fresh water resources. Essentially, I propose that subnational entities at the local and regional level pursue cooperation over transboundary aquifers in the form of informal, locally-specific, cross-border arrangements.
While this tactic challenges the national governments’ traditional monopoly over international relations, especially as they relate to transboundary natural resources, there is good reason to believe that such an approach could achieve what Mexico City and Washington, DC have failed (or declined) to do – create effective collaborative schemes for the mutual and sustainable management of the region’s transboundary aquifers.
Under the unique circumstances of the Mexico-U.S. border, informal and quasi-formal arrangements are more likely to create viable cross-border pacts that would be respected by the local communities. The degree of interest that the national authorities have in a local issue is often directly proportional to the physical distance from the capitol. In contrast, local decision-makers are typically better informed about local and regional cross-border concerns than federal bureaucrats, especially on issues related to the management of local fresh water resources. Moreover, local authorities are better able to reflect the values and preferences of those most likely to be affected by a water accord with a neighboring country, which, for a local border community, is merely a short drive away. Critically, local decision-making would likely be more sustainable, as well as responsive and adaptable to changing climatic and economic circumstances and improved knowledge, given that the local communities and their children will have to live with their decision far into the future.
In addition, a local approach to the management of transboundary aquifers makes hydrologic sense. No two aquifers are alike; each functions as a complex and unique hydrological system. Moreover, no two aquifers are perceived equally by overlaying communities, especially where those communities are highly dependent on the resources to meet their daily freshwater needs. Hence, aquifers traversing the Mexico-U.S. border cannot be managed effectively through a single, comprehensive, border-wide treaty. While a border-wide scheme may be politically convenient, such an approach could only offer very general guidelines and standards, and may prove detrimental to the sustainable management of some of the region’s subsurface waters. Rather, an effective, sound, and equitable management plan should be tailored to each transboundary aquifer’s unique characteristics and circumstances.
One concern often raised with a local approach to the management of transboundary natural resources is the legality of such action. As is true under most nations’ foundational instruments, both the Mexican and the U.S. constitutions recognize the national government as the sole authority empowered to deal with foreign representatives; they prohibit states, cities, and other subnational political units from entering into treaties and other formal relations with counterparts across the border. The goal here, however, is not to create multiple, locally-specific, formal treaties throughout the border. Rather, the goal is the development and implementation of informal or quasi-formal, locally-specific, cross-border arrangements that are implemented through cooperative understandings or memorandum of understanding, or more structured contracts for goods or services. In the United States, while the former would be immune to Constitutional scrutiny due to their unofficial, unenforceable, and non-binding nature, the latter would be immune to the extent that the U.S. Congress has not preempted such activities under its authority to regulate interstate commerce.
Given the state of the economy, domestic and international terrorism, drug wars, and other societal and political challenges, ground water on the Mexico-U.S. border is not a priority of the Mexican and American governments. Unfortunately, that lack of prioritization is jeopardizing the long-term viability and habitability of the border area and portends the possible downfall of many communities and ecosystems throughout the region.
The two federal governments, though, are not indispensable for developing sustainable and coordinated ground water relations on the border. Through informal locally-specific, cross-border arrangements, frontier communities can, on their own, achieve viable cross-border pacts that will ensure the water futures of their peoples, economies, and environment. For a more comprehensive consideration of this proposal, please see my recently published article.
Minute 319 allows Mexico, which has a dearth of storage capacity, to store some of its Colorado River allotment in 
