Archive for the ‘Mexico-US Border’ Category

Mexico-U.S. Cooperation on the Colorado: Prioritizing Sustainability Under Minute 323

Monday, January 15th, 2018

The following essay is by Regina M. Buono and Jill Baggerman. Buono is a Non-resident Scholar at Rice University’s Baker Institute for Public Policy and a doctoral student at the LBJ School of Public Affairs at the University of Texas at Austin. She can be reached at regina.buono [at] utexas.edu. Baggerman is a fellow with the Robert Strauss Center for International Security and Law and the J.J. “Jake” Pickle Scholarship Program and is a graduate student at the LBJ School of Public Affairs at the University of Texas at Austin. She can be reached at kjmbaggerman [at] gmail.com.

 

Despite oft-seen headlines about “the wall,” immigration, and uncomfortable relations between the United States and Mexico, the countries continue to develop advanced cooperative strategies for governance and management of the Colorado River. On September 27, 2017, representatives from the U.S. and Mexico signed Minute 323, a new agreement under the 1944 Treaty governing the river, which is intended to create a more secure water future for Colorado River water users and support additional environmental restoration projects. The agreement is the product of longstanding collaborative efforts by environmental NGOs, water agencies, and governmental representatives from both countries and is designed as a successor to Minute 319, signed in 2012. Minute 319 created temporary measures to share shortages and surpluses between the parties, and provided a massive, experimental pulse flow to rejuvenate the Colorado Delta. (See here and here).

In a nutshell, Minute 323 authorizes mutually advantageous options to give the parties flexibility and facilitate longer-term planning of water storage and distribution under variable climate conditions. It provides for substantial investment in conservation projects in Mexico in exchange for additional water allocations to the U.S.  Some of the more prominent stratagems of the plan are described below.

Minute 323 delineates procedures for coordinating approaches to operating under specified tiers of high- and low-elevation reservoir conditions, allowing the parties to take advantage of wet times and avoid triggering shortages in dryer periods. This increases certainty for each nation in managing water demands, and provides for agreement on the provenance and communication of information regarding environmental conditions. The U.S. Bureau of Reclamation’s August 24-Month Study will be used to project the January 1 elevation of Lake Mead, thereby determining yearly basin-wide allotments. The agreement also establishes the Binational Water Scarcity Contingency Plan in which Mexico agrees to join the U.S. states in temporarily taking less water from Lake Mead in order to avoid future shortages. Implementation of the plan is contingent on completion of the drought contingency plan being developed by the lower basin states.

Building on the successes of Minute 319, Minute 323 also enhances Mexico’s ability to store its allotments in U.S. reservoirs according to three categories of reserves: “Emergency Storage,” a “Revolving Account,” and the Intentionally Created Mexican Allocation (ICMA). The agreement extends Mexico’s ability to defer any part of its water delivery when the act of responding to an emergency—such as an earthquake—limits its ability to use an allotment. The Emergency Storage, along with the Revolving Account (which includes water previously deferred under Minutes 318 and 319) and ICMA (water Mexico may defer based on conservation efficiencies or new water sources that decrease demand for Colorado River water), constitutes “Mexico’s Water Reserve.”

International Boundary and Water Commission Commissioners announce signing of a new Colorado River agreement, Minute 323 on September 27, 2017. Photo by the U.S. Bureau of Reclamation, available at https://www.flickr.com/photos/usbr/23522391918/in/photostream/, and used under a Creative Commons Attribution-ShareAlike 2.0 license.

Commissioners Roberto Salmon (left) and Edward Drusina of the Mexico-U.S. International Boundary and Water Commission Commissioners announce signing of a new Colorado River agreement, Minute 323 on September 27, 2017. Photo by the U.S. Bureau of Reclamation; Creative Commons Attribution-ShareAlike 2.0 license (https://www.flickr.com/photos/usbr/23522391918/in/photostream/).

Minute 323 provides a number of rules to structure and facilitate sustainable management of these reserves, including limitation on total annual deliveries and provisions for evaporation losses. Reserves are to be delivered when needed unless Lake Mead is at low-elevation conditions or the timing would affect the January 1 elevation projection. Mexico may use its reserves for any purpose; may create a reserve of up to 250,000 acre-feet (AF) through December 31, 2026; and may withdraw up to 200,000 AF annually. Of water stored as ICMA, 2% is reserved for environmental purposes in Mexico. Minute 323 defines precise institutional procedures for when and how relevant agencies will manage the accounting records and release water deliveries. Storage and release procedures are based on the projected elevation of Lake Mead, meaning that environmental conditions and a recognized need for accurate evaluation and understanding of those conditions remain at the forefront of the agreement.

Minute 323 addresses a number of other issues benefiting both nations but of particular concern to Mexico. The agreement lists tasks for the Binational Salinity Work Group to achieve over the next two years, including the modernization of salinity monitoring equipment and automatic reporting tools. The agreement also addresses Mexico’s concerns about daily flow variabilities by creating the Binational Flow Variability Work Group, tasked with a pilot program to use existing storage capacity at Morelos Dam to reduce variability.

U.S. water agencies pledged to invest $31.5M in water efficiency projects in Mexico in exchange for an additional 109,100 AF in water allotments. Water savings generated by these projects will accrue to Mexico, except for allotments exchanged to the U.S. and specified allotments for the environment and system water. The water transferred to the U.S. will reduce pressure on the lower basin U.S. states as they attempt to meet increasing water demands. As with Mexico’s Water Reserve, the agreement coordinates institutional procedures for how the parties will conduct the exchange proportionally and simultaneously through 2026.

Seeking to leverage the success of Minute 319’s “pulse-flow”, Minute 323 includes provisions for the environment, particularly the river delta. The parties renewed their commitment to the environment by agreeing to partner with a binational coalition of NGOs to generate 210,000 AF of water for environmental purposes in Mexico, and pledging millions of dollars to fund scientific research, monitoring, and restoration projects. Mexico will also provide water for continued habitat restoration and scientific monitoring in the delta through 2026.

In sum, Minute 323 is an encouraging development for management of the river. The agreement provides Mexico and the U.S. with additional procedures and resources required to meet environmental and user demands for Colorado River water. Mexico benefits from increased flexibility regarding management of its reserves, as well as improved rules on flow variability and funds for conservation projects. The lower basin states also substantially benefit from the water transfers, which will lessen demand pressure throughout the system. The formal involvement of NGOs at the negotiating table increases the institutional capacity of both nations, creating incentives and synergies to facilitate conservation projects. The agreement is an indication that relations over the Colorado River continue to be strong and cooperative, are supported by well-developed institutions and active stakeholder participation, and increasingly focus on environmental sustainability and mutually advantageous solutions. Minute 323 advances each of these objectives, demonstrating that both nations continue to negotiate in good faith, even while the broader relationship becomes strained.

 

Rethinking Transboundary Ground Water Resources Management: A Local Approach along the Mexico-U.S. Border

Monday, May 6th, 2013

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.

Map produced by the U.N. Educational, Scientific, and Cultural Organization, the World Meteorological Organization, and the International Groundwater Resources Assessment Centre suggesting the presence of 10 transboundary aquifers or aquifer systems along the Mexico-U.S. border.

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.

Map showing the six Mexican states and four US states, as well as numerous sister cities, along the Mexico-US border. Map courtesy of USEPA: http://www.epa.gov/region9/annualreport/07/images/mexico-us-border.jpg

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: A Creative Approach to Modifying Mexico-U.S. Hydro-Relations Over the Colorado River

Monday, December 10th, 2012

The following post is by Regina M. Buono, an associate attorney with the law firm of McGinnis, Lochridge, & Kilgore L.L.P in Austin, Texas. She can be reached at rbuono [at] mcginnislaw.com or found on Twitter as @ReginaBuono.

The Colorado River provides water to more than 36 million people in the western United States and Mexico.  Management of the river is governed by the Treaty for the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, which was signed in 1944 (“1944 Water Treaty”).  While the treaty is generally viewed positively for having served as a basis for successful cooperation for nearly 70 years, efforts to comply with its terms have occasionally been strained.  This was especially evident early last decade when Mexico fell behind in treaty-mandated water deliveries to the Rio Grande as a result of a prolonged regional drought.

In response to ongoing climatic changes and uncertainties, the 1944 Water Treaty was recently amended by Minute 319 to provide for both nations to share surpluses and water shortages, permit Mexico to store some of its allotted water in the United States, facilitate investment in Mexico’s water infrastructure, and restore the environmental flows of the Colorado River to the Gulf of California, albeit on an experimental scale.

Minute 319 allows Mexico, which has a dearth of storage capacity, to store some of its Colorado River allotment in Lake Mead, located in Arizona and Nevada.  This arrangement is an extension of Minute 318, which modified the 1944 Water Treaty after an earthquake in the Mexicali Valley in 2010 severely damaged Mexico’s canal-based water distribution system.  In addition to enhancing Mexico’s storage capacity and water security, the deal helps keep the water level in Lake Mead more predictable, which in turn protects the water intake pipes that supply the vast majority of Las Vegas’ drinking water.  Minute 319 also grants the U.S. a one-time allotment of 124,000 acre-feet of water in return for U.S.-financed infrastructure improvements in Mexico.  The infrastructure improvements are intended to generate water savings that will benefit all river users.

In addition, the amendment permits the U.S. to send less water to Mexico in drought years, thereby sharing the burden previously borne solely by U.S. water users.  It allows for the creation of an Intentionally Created Mexican Allocation (“ICMA”), wherein Mexico may adjust its water delivery schedule to allow for later use.  Mexico may adjust its order in dry years to offset the mandated reduction with deliveries from the ICMA or other water previously deferred. In years in which Lake Mead is projected to be at or above certain elevations and in which Mexico has deferred delivery of or created a certain minimum amount of water, Mexico may increase its order for river water in specified increments based on the water elevation. However, the annual delivery of deferred water may not exceed 200,000 acre-feet and total annual delivery may not exceed 1.7 million acre-feet.

Finally, the amendment creates a pilot program to provide water to be used as environmental flows for the Colorado River delta, which will benefit the river and the myriad species that are found there.  The delta has been largely dry for decades; most years the flow of the river is diverted before reaching its mouth at the Upper Gulf of California, leaving the river channel completely dry more than 90 percent of the time and damaging the delta ecology and wetlands that once covered the region.  Minute 319 requires water users in the U.S. and Mexico to provide a one-time high-volume “pulse” flow of 105,000 acre-feet, which will augment base flows secured by a water trust since 2008.  Scientists and advocates hope that the pulse and base flows will create 2,000 acres of new wetland habitat and will lay the groundwork for more extensive restoration projects.

Minute 319 offers a number of benefits for both nations, as well as the water utilities and environmental organizations that depend on and care for the river.  On a practical level, Minute 319 provides water departments, cities, states, and other political subdivisions that rely on the Colorado River for fresh water with the added benefit of certainty and peace of mind, which will allow them to make better business decisions and allocate risk more precisely.  Moreover, investment in Mexico’s infrastructure (e.g., concrete-lined canals instead of the current dirt channels) will benefit water users throughout the basin as a result of greater efficiency and reduced waste, which will allow conserved water to be shared with those entities that helped finance improvements.

Although the amendment has generally been received favorably by water and governmental entities alike, it is not without its critics.  Not everyone shares the opinion that allowing Mexico to store water in the lake is an unqualified good, and some have voiced resentment that domestic water users have not been granted the same flexibility.  The Imperial Irrigation District, a primarily agricultural water district in California and the largest single recipient of Colorado River water, refused to sign the agreement because it wanted to have the same ability as Mexico to bank its water in Lake Mead.  Some parties have expressed concern that keeping more water in Lake Mead means that less water will be available for hydroelectric power generation and, because water levels in the lake serve as a drought indicator, that changes in the lake’s levels due to Mexico’s ability to store water could delay a declaration of drought, in turn postponing necessary distribution reductions.  The Confederación Nacional de Campesinos, Mexico’s national farmers’ association, has also expressed concerns, calling upon farmers to present a “united front” against the agreement, which it believes will harm agricultural producers’ economic interests.

Despite differences of opinion over its impact, the most important aspect of Minute 319 may be the basis it creates for future cooperation as the river is further impacted by overuse, drought, and climate change.  Scientific research and environmental models have demonstrated that the American southwest has been impacted by and will continue to suffer from the effects of climate variability.  It is also an area with a rapidly growing population.  While the region presents a challenge to water and environmental scientists and managers, as well as for society generally, this agreement may serve as an example of creative cooperative management for other countries facing water-related challenges.  Disagreements over water resources are projected to be a leading cause—if not a primary cause—of cross-border social and political conflict in decades to come.  Accordingly, strengthening ties between Mexican and U.S. governmental officials, scientists, and water managers is critical for facilitating future cooperation and minimizing tensions.  The successful completion of this negotiation presents a precedent for cooperation going forward, and the relationships forged in the process will be valuable for future compromises over the management of the Colorado River, as well as other transboundary waters on the border.

Minute 319 is limited to a term of five years.  The short duration may have been necessary to facilitate the amendment’s acceptance by Mexican officials, as Mexico has long considered the 1944 Water Treaty to be inviolable and complained about American management practices.  Nevertheless, officials on both sides have expressed the hope that the Minute’s implementation may be extended in the future.

U.S.-Mexico Transboundary Aquifer Act

Monday, April 13th, 2009

As many of you know, the U.S.-Mexico Transboundary Aquifer Assessment Act was signed into law by former President George W. Bush in December 2006. It was designed to address the lack of consensus between the two nations on the source and availability of future water supplies along the border specifically focusing on transboundary aquifers. The Act mandates the creation of a scientific program to comprehensively assess the region’s transboundary aquifers, especially those deemed “priority” transboundary aquifers.

 

While the Act is expected to generate important data and information for a region critically dependent on its ground water, it will likely produce charts and maps of the kind some of us may recall from elementary school – with colorful contours and geologic characteristics that stop at the border. Although useful for American school children (and even that is debatable), they may be worthless for more serious purposes. Despite its title, the Act is a one-sided effort. Although it directs the US Department of the Interior “to develop partnerships with, and receive input from, relevant organizations in Mexico to carry out the program,” according to Economic & Political News on Mexico (Vol. 19, No. 34, 9/10/08 – contact me if you want a copy), the Mexicans may have been caught off guard by passage of this unilateral effort. For example, last April (04/28/08), the Mexico City daily newspaper Milenio Diario asserted that “The US is betting on the underground water supplies along the border with our country, which is one of the regions in the US with the highest population growth … The growing scarcity of water in this region has on more than one occasion created tensions between the two governments.”

 

Certainly, the Act was adopted under the oversight of a prior administration. But that doesn’t excuse the great need for cooperation between the two nations. For example, while we may know that aquifers underlay the border region, its seems we still are unsure of how many such treasures may be found there. While Stephen Mumme identified eighteen in his work, others suggest as few as eight (e.g., see UNESO/OAS ISARM Report of 2005) and as many as twenty (see EPA’s 2005 Good Neighbor Environmental Board report to the President). IGRAC’s recently released Transboundary Aquifers of the World Map identifies ten.

 

Of course, this all may be subject to geologic interpretation, but the fact that it hasn’t been fully interpreted (or, at least, comprehensively collected) indicates a lackluster interest by the two governments.

 

Additionally, overexploitation has become a serious concern in the border area as populations on both sides pump water with little regard for the transboundary impacts or sustainability. Moreover, as communities continue to grow, increasing pollution from untreated sewage, agricultural and industrial byproducts, and other sources threaten the aquifers’ water quality. Now, climate change threatens to exacerbate the droughts that have plagued the region in recent decades and further diminish border-area water resources. Despite it all, a dearth of research and funding has left little known about the full extent and consequences of the exploitation and pollution of the region’s aquifers.

 

What is truly needed is a comprehensive and cooperative assessment of ground water resources on both sides of the border. To achieve this objective, both nations must become more engaged in the region’s transboundary aquifers. They must cooperate on and coordinate their research efforts, harmonize methodologies, continuously exchange data and study results, and, ultimately, develop a management scheme that takes into account the needs of both nations, the needs of the environment, and the extent of the fresh water resources available. And, in light of climatic variability, they must monitor all of the variables and periodically review and adapt their efforts so as to ensure that the limited water resources are used wisely and efficiently.

 

With the population along the border expected to balloon to as much as 23 million by 2030, the availability of fresh water in the region must be made a priority. Might the U.S.-Mexico Transboundary Aquifer Assessment Act serve as a first step in this direction? Certainly a possibility. A second step, though, has yet to appear on the horizon. By itself, the Act is designed to provide only a one-sided glimpse of the needed information, and thus, may be an exercise in futility. Moreover, the fact that the Act is set to expire in 2016, has only received $500,000 of the $50 million authorized, and the current state of the U.S. economy all proffer even less hope that it will produce meaningful information.