Q&A with Experts: Click on the questions below to see responses.

• Without major releases of water before Oct. 24, Mexico will end a 2nd 5-year cycle of the US-Mexico Water Treaty with a water debt, a situation understood by most to be a violation of the treaty. What are the most likely outcomes for this current dispute?

  Sergio Alcocer, UNAM

  Rainfall has been doing its part by filling up water streams and providing for part of the necessary water to be paid. Nevertheless, it is expected that Mexico will not be able to honor its commitment and pay off its debt from the current cycle.  One option for solving the issue is for both parties to agree that Mexico would make an extra effort to over-pay in the next couple of years or so. However, that would ignite political and social opposition from local governments and actors. So far, CONAGUA has shown lack of expertise, political savviness, and vision to propose a solution.

  Carlos Rubinstein, RSAH20 

  Regrettably, the most likely outcome is that Mexico will end the cycle with a debt to the United States. Far too much time has been spent arguing on how to pay the deficit and implementing actual deliveries to get current. An additional likely outcome is that Mexican state politics will continue to impede treaty compliance – to the detriment of Texas and Tamaulipas. A preferred outcome, but unlikely due to time constraints, is that the entire basin is looked at for treaty compliance as authorized by Article 9 of the treaty – but given the current position of Texas not to accept water from the San Juan – this is unlikely. Cooperation would be more likely if Mexico would have kept its word to comply with the treaty as conditioned in previous acceptance of San Juan water. The least likely outcome is the one that resolves this issue going forward – that Mexico in fact honors its treaty commitments by making annual allocations of water for treaty compliance with actual deliveries.

  Mario López Pérez, Permanent Forum of Binational Waters

  I believe that the internal discussion in Mexico is beginning to decrease and, after October 24th, it will disappear in relation to water (not in relation to the political dispute - 2021 is an electoral year in Mexico), derived from three aspects:

  1. There has been no additional bickering between Chihuahua and the Federal government, which has positively influenced the spirit of farmers and Chihuahuan society in general (and in the media) not to take sides.
  2. Farmers are gradually understanding that the next agricultural cycle under the current severe drought situation, and quite likely in 2021 (due to the manifestation of the “La Niña” phenomenon - dry and hot winter), will have little surface area to irrigate in the Irrigation Districts due to lack of water, and thus their interests and actions will be derived from the need to seek support and institutional state and federal compensation.
  3. The leaders of the farmers are already sitting at the analysis table of the Rio Grande Basin Council to seek to prevent situations of tension like this one.

  Erik Lee, North American Research Partnership

  As a rule, Mexico, under President López Obrador, has chosen an exceedingly non-confrontational attitude with the United States on a variety of issues related to the U.S.-Mexico border, so I expect the United States to “prevail” in this particular water dispute. And by “the United States,” I clearly mean the array of special interests in the U.S. that dominates the issue of water: agriculture--which utilizes three-quarters of water in the Southwestern states--the water districts, cities etc.

  Sharon Megdal, University of Arizona Water Resources Research Center 

  I have heard multiple experts from Mexico say that Mexico is likely to meet its delivery requirement.  Though time-consuming, sustained, respectful dialogues may be key to addressing these matters.

  Gabriel Eckstein, Texas A&M University

  While there are obvious similarities between the current situation and the last time Mexico faced a water debt, there are actually significant differences between what happened previously and what is currently transpiring. During the last debt at the end of a second five-year cycle, the Amistad and Falcón reservoirs had extremely low water levels, whereas now, they have significantly more water in storage.[1] This reduces the pressure on the U.S. side to press for fulfillment of the water deliveries. In addition, the lower Rio Grande Valley has been hit by multiple big storms this season, meaning that there has been plenty of rainfall in that region, whereas further up on Rio Conchos, there hasn’t been much rain, leading to water scarcity. Thus, the same level of uproar currently present on the Mexican side of the border doesn’t exist on the U.S. side. It is the Mexican federal government that has been pushing for compliance with the treaty and the local population that’s fighting back.  In the United States, there is recognition that Mexico failing to deliver the water isn’t in all actuality that big of a deal in terms of water availability, although there are those who argue that the water debt should be fully repaid simply so that Mexico stays in compliance with the treaty. Nevertheless, the United States has sufficient water on the Rio Grande for the time being; however, it is certainly a significant issue both diplomatically and legally. This marks the second occasion that Mexico has gone into debt in the second cycle and is on the brink of not repaying their water debt.

  The bottom line, though, is that it’s evident that something has failed. Is it the treaty? The binational relationship? Or something else? Looking at facts on the ground, it appears that the main challenge is predominantly an internal issue for Mexico. The country needs to recognize the serious challenges presented by their centralized approach to water management with little input from the cities along the northern border that actually feel the impact of the mandates and policies of the federal government. This is possibly the single-most unsustainable aspect of the Mexico-U.S. relationship over the Rio Grande.

  *Gabriel Eckstein’s responses are paraphrased, based on an interview done with him on October 16, 2020.

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  [1] The U.S.-Mexico water treaty allows for the carrying over of water debt to a second five-year cycle, but not a third, which would happen if Mexico doesn’t complete its water payments in October, 2020.

• Climate change, economic growth and population growth are only increasing water resource pressures on both sides of the border. What can be done to decrease the likelihood of a similar situation at the end of the next five-year water payment cycle?

  Denise Moreno Ducheny, Formerly UC San Diego

  The heart of the frequent conflict in the Texas region is the fundamentally flawed premise of the 1944 Treaty – the notion that water is “owed” by one country and watershed to the other -  presuming to “trade” a specified quantity of Colorado River water to Baja California in exchange for Rio Bravo/Grande River water to Texas. As such, the Border Region needs to adopt watershed management strategies which have evolved over the last 20-30 years in various regions, including within California. Watershed management plans for each specific watershed will be required to address climate change, drought conditions, efficient agricultural water use, and other environmental issues to develop long-term sustainable use strategies and projects. This principle of watershed management applies equally to groundwater basins. For many years, we have lacked baseline studies of binational groundwater basins, which are mandatory to effectuate any long-term strategies. One key component of creating sustainable groundwater basins will be employment of aggressive water re-use and utilizing groundwater basins for storage. This is an issue that will require revision of the legal framework in all jurisdictions. California recently implemented some groundwater monitoring and regulation which may serve as a starting point for others.

  Carlos Rubinstein, RSAH20

  Simply, live within the actual amounts of water that are available and committed as per the treaty. Do not continue to plant and expand acres for water-intensive perennial crops that exceed by demand the water that is actually available. And Mexico must set aside water for treaty compliance before making allocations to the internal irrigation districts (the United States does this on the Colorado).

  Sharon Megdal, University of Arizona Water Resources Research Center

  With the obvious pressures on and competition for water resources, it is important for the players in the region to work together to identify options for addressing imbalances in supply and demand and identify pathways to solutions. We all know the work is difficult and without a definite endpoint. Of course, it is made more difficult by different languages, cultures, economic conditions, and government budget priorities. It is important to get the stakeholders on the same page regarding the situation and then look to the implications of alternative solution sets.

  Sergio Alcocer, UNAM

  The problem at the Rio Bravo watershed is both chronic and systemic. More water than available has been allocated on the Mexican side. Therefore, the expected amount of water to be released to the United States is typically short, unless extraordinary rains occur. A serious, unbiased, technical study should be conducted for the watershed. This should include, among others, modeling of all inputs and outputs of the watershed on both sides of the border. Based on a resilience modeling approach, different scenarios involving policy decisions and technical modifications should be jointly developed, potentially by Mexican and U.S. universities with expertise on the subject. In such modeling, climate change, economic and population growth, dam expansion, and water efficiency improvements, should be also studied. The North American Development Bank (NadBank) could be a key player for granting the money for a multi-year project to address these issues.  

  Erik Lee, North American Research Partnership

  First things first: the two governments need to fully acknowledge the reality of climate change and its impacts in order to come up with joint approaches to dealing with the water changes for the strategic U.S.-Mexico border region. In the United States, the Trump Administration is withdrawing from the Paris climate agreement on the day after the election, but the same federal government has issued the National Climate Assessment, which spells out very clearly that temperatures are rising and water supplies are shrinking in the Southwest. I think it is clearly the case that the federal governments know what the situation is and what needs to be done to mitigate and adapt.

  Overall, I see a greater role for locally-driven innovations in terms of management and technological implementation. Water districts and utilities in the United States are powerful actors and are very cognizant of their role in addressing water resource pressures. This part of the world is facing existential challenges from climate change and water scarcity that are simply not felt in Washington. On the other hand, however, water issues are front and center in Mexico City, so perhaps there may be greater political will in Mexico to address these issues. Technological fixes which may once have seemed too futuristic, unfeasible, and expensive may all of a sudden look viable and even necessary. Solar desalination, exploiting brackish waters, large-scale methods of condensing water from water vapor, and greater use of protected agriculture may all see broader implementation.

  While Mexico’s commitment to sustainability has clearly dropped with the López Obrador Administration, one area in which Mexico is quite advanced is in protected agriculture (greenhouses), which uses water more efficiently and productively than open-field agriculture. States such as Baja California and Sinaloa have seen tremendous growth in the use of protected agriculture. Could Mexico’s federal government encourage more of this throughout the North? Could we see a wave of technology transfer from Mexican agriculture to U.S. agriculture?

  Mario López Pérez, Permanent Forum of Binational Waters

  This is an enormous opportunity to amend the path towards the indivisible binomial of water sustainability in the basin and compliance with the 1944 Treaty. The strategy must focus on short, medium, and long-term results. This cannot be thought of as being resolved in five years, but instead having partial results in that time. The strategy must contain at least these five elements for the Mexican side:

  1. Improve the management of water resources, including:
     1. State-of-the-art monitoring technology of the watershed's hydrological cycle (demand and supply).

     2. Separate the operation of the hydraulic system to Ojinaga and from there to downstream; think about a policy of maintaining an optimal minimum level in international dams for contingencies due to drought.

     3. Integrate the environmental flow to help ensure the hydrological continuity of the system, the supply of water for domestic use, and promote the recharge of aquifers (using Solutions Based on Nature - SBN).

  2. Conclude the development of water allocation rules and sign them in a Concertation and Coordination Agreement within the Basin Council; test and modify them annually, if necessary, and eventually convert them to a Regulation in accordance with LAN - reduction of water use - given the legal and administrative difficulty in modifying a Regulation annually.

  3. Incorporate technologies of high water efficiency in irrigation and production chains from the farm to the agro-industry; resize the Irrigation Districts in parallel to this technological modernization.

  4. Create new water sources (Act 319 of the Comisión Internacional de Límites y Aguas - CILA):

     1. Brackish and marine water desalination for the northern populations of Tamaulipas, Nuevo León, and Coahuila.

     2. Conduction of water from humid areas (Tamaulipas) for irrigation in the north of Tamaulipas.

     3. Implement environmental flows.

     4. Build aquifer recharge works / create water banks; think about building underground dams (decreased evaporation).

     5. Build the third international dam on the main channel.

  5. Update and implement the territorial zoning plans of the basin states to restore the ecosystem balances necessary for a healthy hydrological cycle (SBN) and decree protection of recharge zones.

  This cannot be done in five years, but a permanent and long-standing process can be agreed upon. For the U.S. side, similar elements need to be envisioned, discussed, and agreed upon.

  Gabriel Eckstein, Texas A&M University

  The Minutes system of the 1944 Treaty serves as almost a separate regime because it enables the development of legal and practical mechanisms that are easier to implement since there’s no requirement for congressional approval. The Minutes are actually interpretations or clarifications of the treaty, not amendments to it. This system offers opportunities for innovative and flexible solutions to adapt to changes and address situations such as: growing populations, increased economic development, water quantity changes, climate change, etc.

  For Mexico, however, their top-down implementation regime creates challenges, and this is an area where Mexico will continue to face significant problems until changes are made. Until the Mexican government takes into account local and stakeholder involvement and moves away from a command-and-control and centralized approach, the existing challenges will persist.

  What’s currently transpiring on the Rio Conchos is calling for the type of creativity that was achieved on the Colorado River. From the upper basin of the Rio Conchos down to where it meets the Rio Grande, natural losses are pretty significant. Why couldn’t Mexico deliver the water it has stored in the Falcon and Amistad reservoirs through a transfer of rights in order to pay on its water debt? The water is there in the two reservoirs, so why do they have to deliver the water solely from Rio Conchos?

  *Gabriel Eckstein’s responses are paraphrased, based on an interview done with him on October 16, 2020.

• Would you qualify the binational management of the Colorado as a success? What lessons does it offer us for the resolution of binational and even global water challenges?

  Full question: Recent minutes updating the U.S.-Mexico water treaty have increased U.S.-Mexico cooperation in the management of the Colorado river and resulted in the river briefly reaching the Gulf of California for the first time in many years in 2014. Would you qualify the binational management of the Colorado as a success? What lessons does it offer us for the resolution of binational and even global water challenges?

  Sharon Megdal, University of Arizona Water Resources Research Center

  Binational management of the Colorado River has been carried out successfully, and I consider it a model for cross-border collaboration. Processes include involvement of the seven U.S. states that share Colorado River water and for working groups that enable stakeholders to engage in the discussions and analyses. The pulse flow referenced in your question was a success because of the involvement of non-federal parties, who, along with the federal authorities, provided funding. 

  However, I see significant improvements in collaboration, particularly in the past decade. The 2010 Easter earthquake was an important driver. It underscored the need for some new approaches to binational water management, leading to the storage of Mexico Colorado River water in Lake Mead, something that had not been done before. The International Boundary and Water Commission (IBWC)’s ability to formulate and approve Minutes to the 1944 Treaty provided the vehicle for binational storage and the pulse flow. Minute 323, which built upon Minute 319, has provisions for sharing of water under shortage conditions. It includes provisions related to binational study of desalination, which is underway. 

  Climate conditions are adding significant stress to the Colorado River system. The parties are hard at work now to identify approaches to addressing the burden of lower flows and increasing demands well in advance of the 2026 expirations of the Colorado River Interim Guidelines for Lower Basin Shortages and Coordinated Operations for Lake Powell and Lake Mead, which were approved for the United States by the Secretary of the Interior in 2007. The number of involved entities, which include the U.S. government, the seven basin states, Tribal Nations, and others, is quite large, with the federal governments of the United States and Mexico of course addressing the binational issues. 

  Mario López Pérez, Permanent Forum of Binational Waters

  The success in the Colorado River began from a disagreement between Mexico and the United States (All American Canal lining), which turned into a common strategy of joint cooperation. Today in Bravo / Grande, we can think of something similar to start. The process in Colorado began with an agreement on priority objectives for each country and common objectives, followed by an exchange of information and understanding of the situation of the basin as a whole by officials and users from both countries (guided visits included). There was never interference in the decisions of each country, but there was an understanding of needs and limitations of each country's context. The issue of an environmental flow was a factor of harmony between NGOs from both countries and build on of a third group of analysis for decision-making between the countries. The brainstorming sessions within and between countries were essential to find projects, ways of working, and financing. Thinking of the basin as a whole, and not with international and state boundaries, was crucial for trying to find solutions. Afterwards, the countries managed to fix these ideas into their own legal framework and budget.

  Sergio Alcocer, UNAM

  I think the Colorado River minutes are successful in two respects. The first is that they demonstrate that both parties may agree on common issues through a bilateral, respectful, and shared-responsibility-based dialogue, involving both diplomacy and technical experts. The second is that the environment can be improved with the implementation of proper cooperation – a lesson that should be drawn larger to the Tijuana and Bravo rivers. Such a project should lead to policy changes, community re-education, re-allocation of water rights, investments in public infrastructure, at a minimum.

  Denise Moreno Ducheny, Formerly UC San Diego

  The recent success of the Colorado River agreements in addressing long-term drought issues, while also providing “environmental” water to the Sea of Cortez, is, I believe, the most recent positive model of recognizing the Watershed as the basis for long-term management.

  Erik Lee, North American Research Partnership

  That arrangement was truly remarkable. As the situation becomes more acute, I do not see local interests automatically looking to support binational approaches, so that diplomatic and scientific challenge will only increase in scale and intensity. I think of the lining of the All-American Canal as a foreshadowing of nationalistic water management to come. The IBWC-CILA mechanism is antiquated and is in no way up to the challenge of dealing with the scale of climate change and its undoubtedly powerful effects on the U.S.-Mexico border region. It was not designed with a challenge of this magnitude in mind. We clearly need a whole of government approach.

  Gabriel Eckstein, Texas A&M University

  I do think that the experiences on the Colorado River can be looked at as a success. They were able to find creative solutions that have increased the efficiency of water use both in Mexico and the United States, and at the same time found extra water for a few pulse flows for the environment. The level of cooperation there has been quite significant and, maybe most importantly, has included local communities, irrigation districts, environmental groups, and other stakeholders. I think that has been especially productive because it brought together all of the players and interests in a way that facilitated creative thinking. 

  *Gabriel Eckstein’s responses are paraphrased, based on an interview done with him on October 16, 2020.

• How can issues affecting water quality for transboundary waters be resolved, especially with regards to the Tijuana River?

  Full question: Water quality issues are especially important in the California-Baja California area, where untreated wastewater in the Tijuana river has for years caused negative health outcomes and beach closures. Increasingly, water quality issues are showing up in other areas, with the overuse of aquifers causing increasing salinity. What needs to happen to clean up the Tijuana River and ensure water quality throughout the border region? What is currently preventing this?

  Denise Moreno Ducheny, Formerly UC San Diego

  The on-going efforts to address Tijuana River issues on a binational watershed basis, as outlined in Minute 320, are on a positive path at the moment. This situation, however, will require significant attention to financing long-term infrastructure and maintenance of Tijuana’s wastewater system, particularly updating and increasing the capacity of Tijuana’s primary sewage treatment plant at Punta Banders, and investing in improved municipal solid waste management. In addition, the watershed needs to implement regulation and pretreatment of industrial wastewater, land use management strategies to minimize sediment, utilization of green infrastructure strategies, and to increase waste water reuse for agricultural and industrial purposes.

  Mario López Pérez, Permanent Forum of Binational Waters

  The issue of water quality in the Tijuana River is today one of importance; however, in the Bravo, there are also “spots” that require similar attention. CESP Tijuana must make a significant effort to avoid discharging wastewater into the river and the municipality of Tijuana must not have garbage dumps in the riverbed. The State Commission of Public Services (CESP) of Tijuana must reevaluate and improve its wastewater collection, conduction, and treatment system to reuse the treated wastewater to the maximum (circular economy) and to create new water sources (water recharge), thereby reducing the amount of water coming from aquifers and making more efficient use of the source of the Colorado River. Ideally, the river should recover its natural function and not only carry rainwater mixed with sewage and garbage. The implementation of Minute 320 with this orientation is fundamental. The international treatment plant also has a problem with sludge disposal. You have to find the technology to dispose of them more appropriately.

  Sergio Alcocer, UNAM

  On the Mexican side, the Comisión Nacional del Agua (CONAGUA) is the water authority of the country and is the only entity responsible for fulfilling Mexico’s commitment to water treaties. Oftentimes tensions are present when municipal involvement comes into play, such has been the case in Tijuana with wastewater. Should the Tijuana three-year local government fail to control wastewater discharges on the Tijuana River, the pollution problem will persist for years to come. Organizations such as NadBank could sponsor projects aimed at better controlling wastewater discharge into the river, and modeling of the watershed to allow understanding of interplays would be beneficial.

  Gabriel Eckstein, Texas A&M University

  This is very much a locally specific question and since I don’t know much about the Tijuana River situation, I can’t comment on it specifically. I will say, however, that there are many concerns throughout the border region that a border wall may exacerbate poor water quality and subsequent environmental problems. For example, if a section of the border wall is made of concrete, there will likely be an increase in the accumulation of floodwater from existing runoff. This poses a serious threat to aquifers along the border because of the potential for contamination from floodwaters full of municipal and agricultural runoff that then infiltrate the soil, especially along a wall that is dug deep into the ground.

  *Gabriel Eckstein’s responses are paraphrased, based on an interview done with him on October 16, 2020.

• What do you see as the main challenges facing the U.S. and Mexico in terms of groundwater management, and how can the two countries work together to improve the situation?

  Full question: The United States and Mexico have for many decades relied on a treaty to manage surface water along and across the border, but the usage of groundwater from binational aquifers and subterranean flows is virtually unregulated (at a binational level). Most monitored aquifers have levels are falling due to over-drawing, and in other cases we do not even have sufficient data to make such an assertion even if it is likely the case. What do you see as the main challenges facing the U.S. and Mexico in terms of groundwater management, and how can the two countries work together to improve the situation?

  Carlos Rubinstein, RSAH20

  The biggest challenge is the differing ways states and countries manage groundwater – including ownership. In Mexico, the federal government owns the water. Not so in the United States. Texas, for example, owns surface water, but groundwater is owned “in place” by the landowner under the “Rule of Capture”.  Thus, Texas, for example, has chosen to regulate surface flows but not have purview over groundwater development. Groundwater regulation is left to local dynamics, where property ownership has priority view. So, any effort to better manage shared groundwater resources is done by first showing compliance and cooperation relative to surface water under the treaty.  The next step would be to study – without ownership of water implications - the actual use of water. Get better data. Then, and only then, can one contemplate a possible discussion of shared use considerations – and recognize that, for the United States, state say will have primacy.

  Mario López Pérez, Permanent Forum of Binational Waters

  The main challenge is to study binational aquifers by sharing information and link this process with adequate financing. Within the framework of CILA, there was the Transboundary Aquifer Assessment Program, which officially started on August 19, 2009, formalized with the "Common Report of the Principal Engineers Regarding the United States-Mexico Joint Cooperation Process for the Transboundary Aquifer Assessment Program." This document constitutes the reference framework for coordination and dialogue between Mexico and the United States to develop joint studies on aquifers (San Luis, San Pedro, and Conejos Medanos). This process was truncated due to lack of continuity in the commitments on the part of CONAGUA and the withdrawal of funds in the United States. The Mexican Institute of Water Technology (IMTA) and Texas A&M University agreed to work on this issue of generating and exchanging information, but progress has not been made as planned. It is a pending issue that must be taken up again. Unfortunately, this depends on the interest of the people rather than the institutions. Except for the cases of Tijuana-San Diego and Juárez-El Paso, in Mexican transboundary aquifers, domestic use is not sufficiently important, and even less so the industrial one, to generate a transboundary interest. Water use is primarily agricultural.

  Remembering that in the United States, groundwater is privately owned, and, in Mexico, it is under national jurisdiction; perhaps that is why it is not on the binational agenda except in the case of the pumping agreed binationally in Minute 242 in 1973 for the Yuma and San Luis Río Colorado aquifers, where a limit was set to 197 hm3 within 8 km of the dividing line. In this Minute, reference is made to the need for an agreement of general scope for transboundary aquifers. The date of this act is indicative of binational interest in the matter. Perhaps this is because a high value at risk is not seen in the use of groundwater on both sides of the border (mainly agricultural), in addition to the lack of information. This binational aquifer study scheme must be reassumed, first to understand how the system works and then to agree on common (not joint) policies. At the international level, there is a United Nations (UN) resolution that establishes principles and processes that may be useful in this possible relaunch of a binational process.

  Sergio Alcocer, UNAM

  Eventually, such a situation would require a specific treaty or, as a minimum, a series of minutes with a comprehensive approach. Again, modeling of aquifers along with the watershed is needed. Local aquifers (not binational) should be included in the modeling, because they provide resources to local communities that do not need to be obtained from binational aquifers. Much of the needed information is scarce, incomplete, low quality, or just simply missing. Developing terms of reference for aquifer assessment and monitoring, and investing in such instrumentation and data analysis, could be a first step.

  Sharon Megdal, University of Arizona Water Resources Research Center

  There are many challenges to groundwater management in a binational setting, some of which are related to groundwater management in any setting. Groundwater is invisible. It takes considerable effort to characterize its quantity and quality, including changes to them over time. Groundwater is a more localized resource and a common pool resource, and one that is being extracted at a rate faster than nature replenishes it. These are known challenges and common to many regions, but what makes binational groundwater management more challenging are asymmetries in regulatory approaches across countries and even within states in a single country. States do not necessarily want federal involvement in managing state or, in the case of Texas, privately owned groundwater. But the federal government must be involved when working with sovereign nations. How responsibilities and roles get sorted out when it comes to binationally shared aquifers is a major outstanding question. Some see the future in terms of more locally driven solutions. Given the local nature of groundwater, that makes sense if the regulatory structures allow for and facilitate implementation of locally generated solutions.

  In the over 10 years of Transboundary Aquifer Assessment Program (TAAP) efforts, we have found that national budgetary priorities may be out of synch. Some believe that there is sufficient flexibility afforded through the 1944 treaty for there to be work on binational aquifer management. Key questions relate to the priority of working on these matters and the ability to do so given limited budgets and “bandwidth” of the pertinent agencies. Some think that locally-led efforts will be necessary to make progress.

  An important matter to recognize and remember is that many border communities are totally reliant on groundwater. This makes addressing groundwater sustainability of the utmost importance. On the U.S. side, only four states span the border with Mexico. How we can give greater prominence to these matters in the current budgetary environment is a key question.

  

  Image Credit

  University of Arizona

  Gabriel Eckstein, Texas A&M University

  The 1944 Treaty works well in managing surface water. It creates an overarching, top-level framework under which the two countries are able to implement domestic compliance laws and regulations according to their own terms. In that sense, developing a specific treaty to address groundwater could be beneficial, but the bigger question is how the treaty would be implemented domestically and at the local level. If it were to be a border-wide approach, the treaty would have to be relatively generic. Each aquifer is unique in terms of how it is used, managed, formed, and replenished. So, a border-wide groundwater treaty could only serve as an umbrella of sorts, tasking state and local authorities with the actual implementation. In the United States, there are various authorities at many levels of government (such as river authorities, a water master on the Texas portion of the Rio Grande, irrigation districts, The Texas Commission on Environmental Quality, and the U.S. section of the International Boundary and Water Commission) all of which are involved with implementation. This is not the case for Mexico. CONAGUA is the main authority that oversees water management in Mexico. They have various satellite offices near the border as well as the Mexican section of the IBWC (Comisión Internacional de Límites y Aguas or CILA), but essentially it is a top down model that is not designed to include engagement in the decision-making by local stakeholders.

  *Gabriel Eckstein’s responses are paraphrased, based on an interview done with him on October 16, 2020.

   

• What is the impact of having different legal frameworks for water management applied in various jurisdictions along the border?

  Full question: Each of the four U.S. border states has a different legal framework for managing water rights and use. Mexico has a single, national framework. What impact does this have on the overall management of U.S.-Mexico water issues and how should it be approached as we seek the sustainable management of water in the region?

  Carlos Rubinstein, RSAH20

  The treaty relates to surface water and, quite simply, once water becomes “U.S. water”, it is allocated by the respective state adjudication process. For groundwater use, the issue is quite different as stated above. In any event, water allocation for the U.S. states is reserved to the states under the Clean Water Act, and a well-established and predictable way in which this is done exists. This is aided in large part by the Colorado basin states understanding that water for treaty compliance with Mexico comes first. Mexico’s lack of reciprocity from its border states to the Rio Grande is a harsh and contrasting difference – even when the federal government in Mexico “owns” the water.  

  Sergio Alcocer, UNAM

  According to the Mexican Constitution, water is a property of the State. Its regulatory statute is the National Waters Act (NWA). Based on NWA, CONAGUA is the entity of the State in charge of overseeing the property of water, water allocations, water management, water distribution, and so on. For the U.S.-Mexico treaty, such arrangement comes as an advantage as only one technical player needs to come to the table. Of course, Mexican border states also have something to say, typically for political and electoral reasons aiming at their local constituencies. In previous years, CONAGUA was able to solve tensions through political agreements with local actors. To achieve a sustainable management of the three rivers, main factors are to strengthen local cooperation and trust, to share data and develop common strategies (with distinctly different tactical approaches), and to draw the commitment of the highest level in the Executive branch in both countries.

  Mario López Pérez, Permanent Forum of Binational Waters

  Undoubtedly, the difference in legal frameworks has always been a challenge in binational surface water management, but the example of success in the Colorado River shows that it can be overcome if there are common objectives and if each country (states as owners of water in the United States and its federal government operates the water infrastructure) resolves this issue of water rights internally for the fulfillment of binational agreements. The first thing should be common goals. I think the most important thing is that both countries understand how and why their rights systems (pros and cons) operate in order to not exert additional pressure in the process towards sustainability. The issue is more complicated with groundwater, where in the United States the owners of the land are the owners of the groundwater and the four states have different laws. The most viable option is the integration of user participation in governance structures, such as the Active Management Area (AMA) in Arizona, Underground Water Management Units (UGWMU) in Texas, and recently the California scheme (Sustainable Groundwater Management Act - SGMA) integrated under their own laws, and then, through that mechanism, match it with the Mexico's Consejos Técnicos de Aguas Subterráneas (COTAS) for the processes of sensitization and socialization of information from previous studies. These processes must be guided by the federal governments of both countries (and jointly by states of the United States and Mexico) within the framework of CILA. We must not forget that water management is not an isolated technical process but one where there are mixed economic and social interests.

  Gabriel Eckstein, Texas A&M University

  The 1944 Treaty’s implementation in Mexico is done via decrees at the federal level, which doesn’t allow for stakeholders and local populations to be brought into the decision-making process to the extent that they probably should be. As such, if Mexico is to move forward, the country needs to figure out how it wants to manage implementation of the treaty by increasing participation of various stakeholders and involved parties. Attempts to decentralize the management of water in Mexico have been made, but without much substantive success. The most recent effort has been stalled in the Mexican system for a number of years. Changes in presiding political parties has also hindered the efforts to move forward, and how they might incorporate local voices into the debate remains unclear. But, what is absolutely clear is that some change in structure and/or management of the current system is required for more widespread and increased local participation in the management of water in Mexico.

  In the United States, on the other hand, water management is done at both the state and local levels and involved parties have the authority to respond to their particular challenges. Because of the involvement of various stakeholders at different authority levels, there is actually a much clearer sense of what’s going on. This system is better equipped to incorporate various voices and concerns, but it does make it somewhat more difficult in diplomatic terms since each of the various authorities and districts all want their perspectives heard and implemented. The water management system utilized in the United States is far from perfect. It’s more complicated than the Mexican approach and it makes diplomacy more difficult. However, it is clear that centralization, as utilized in Mexico, isn’t the better option. The current situation at the Boquilla Dam in Chihuahua is a cry for help. The local farmers don’t always know what’s going on, they don’t know how the treaty works, and they aren’t informed about the specifics of the water debts. They’ve been told top-down when and how to use the water, and it is this lack of local education and participation in Mexico that must be rethought and addressed. There is a huge need for a mechanism to allow local involvement and participation in decision-making.

  *Gabriel Eckstein’s responses are paraphrased, based on an interview done with him on October 16, 2020.

• Are there examples of effective or interesting binational or plurilateral water management from other places in the world that the United States and Mexico might benefit from studying?

  Mario López Pérez, Permanent Forum of Binational Waters

  There are iconic cases of transboundary water management of rivers such as Danube, Mekong, Rhine, etc. However, at the international level, the 1944 Treaty is also recognized as an iconic example because it contains the principles and concepts that the UN in its New York and Helsinki resolutions (widely promoted by WWF) has recommended to countries that have transboundary rivers. In fact, Mexico has not ratified said resolution since it has signed the 1944 Treaty, and on the southern border with Guatemala and Belize, there is no interest from these countries to do so. In summary, it can be said that, from my point of view, it makes no sense to modify the Treaty since, in the Colorado River, previously unexplored pathways were identified to be developed and implemented and there was no need to adapt it (and Minute 319 has been internationally recognized as avant-garde on this issue). What you have to look at in the world are the strategies of social involvement and technological advances for how to use and reuse existing water or develop new sources (surface, underground, brackish, marine, rainwater, etc). Today, the issue of tensions is not resolved with a change in the legal framework but rather with “law enforcement” and finding mechanisms to develop, finance, and implement common objectives towards sustainability and compliance with the Treaty.

  On the groundwater issue, it is a bit different because there is no agreed scheme between Mexico and the United States. However, except in the case of Switzerland and France in a common aquifer, there is no successful international experience of “common or joint study and management”. The case of the Guaraní aquifer in South America is not applicable since it is enormous in area and in available water (it is a natural drain of the Amazon basin), and the transboundary aquifers between the United States and Mexico are generally small and of very little volume. The OSU River and Aquifer Database exists and the IHE Delft Institute for Water Education has made progress on this issue of transboundary aquifer governance, but there is much to learn about what is being done. The International Association for Hydro-Environment Engineering and Research (IAHR) and the International Hydrological Programme (IHP) UNESCO are also making progress in defining and characterizing transboundary aquifers and have generated the resolution on the rights of transboundary aquifers that compiles a series of concepts and principles derived from the limited international experience in transboundary groundwater. I believe that a binational framework can be built in this order of ideas.

  Gabriel Eckstein, Texas A&M University

  I’m hesitant to point to other examples because the situation between the United States and Mexico is quite unique. There are significant development disparities between the two countries and taking best practices from Canada or Europe to the U.S.-Mexico border may not be the most efficient or effective solutions. The Minute system and the IBWC/CILA regime are already quite effective in their own ways.

  However, if am pressed to highlight an interesting multinational effort at managing transboundary waters, I might suggest looking at the Senegal River Basin Development Organization (OMVS from Organisation pour la mise en valeur du fleuve Sénégal in French) as it may offer interesting and important insights. The OMVS was created as an independent international organization, which owns and operates the dams on the Senegal River in order to benefit the collective community of its four member states (Guinea, Mali, Mauritania, and Senegal), not any individual country. The organization does rely on the countries for some of its funding. But overall, it has been quite successful in terms of managing the Senegal basin and have now even begun to expand into the realm of groundwater.

  *Gabriel Eckstein’s responses are paraphrased, based on an interview done with him on October 16, 2020.