This paper explores whether a new treaty is necessary to manage groundwater resources between the United States and Mexico or whether the existing treaty regime and the International Boundary and Water Commission process is sufficient to properly protect these limited--and precious--resources. In addition to evaluating international law and the history of the IBWC and its minuting process, this paper will also address some of the internal legal barriers to a groundwater-specific agreement.
In addition to addressing the necessity of the treaty, the paper and presentation will consider the challenges to enforcement. First, the paper will address the effectiveness of the IBWC, particularly the viability of the minutes process for interpretation and conflict resolution. Second, the paper will address the recent conflicts over groundwater between the US and Mexico and whether the extant dispute resolution options were sufficient to deal with that crisis. Lastly, the paper will explore other potential options for dispute resolution and evaluate their likely effectiveness and any barriers or limitations to those bodies.
SUMMARY OF KEY ISSUES
The key issues are whether the current legal regime is effective enough to prevent strains on groundwater on the US-Mexico border and to resolve disputes and conflicts over overuse, particularly during times of shortages. The second key issue is whether a new treaty is necessary to address these issues and whether other dispute resolution options would be more effective in resolving these disputes.
The Paper will begin with an evaluation of recent drought and scarcity and the effect on groundwater before discussing the current legal regime. The pitfalls and challenges of the IBWC will be evaluated, and its approach to groundwater will be analyzed in light of recent shortages and conflicts. Finally, other dispute mechanisms will be evaluated in light of their prior cases, their capacity to handle these types of disputes, and the governing law.
SUMMARY OF CONCLUSIONS
I expect to find that the IBWC system is generally capable of resolving these disputes, but only if there is an additional treaty--not a minuted agreement--that is created to manage groundwater. I also expect that I will find that a new independent arbitral body is a potentially stronger means of enforcement and that there is no existing court body that can sufficiently handle these disputes.
SUMMARY OF IMPLICATIONS OF THE RESULTS
As the US and Mexico continue to address strained relations over groundwater, the treaty regime must grow and advance as well. In order for a groundwater regime to be effective, it must have effective enforcement. By identifying the best options for dispute resolution based on the needs of the treaty, this paper will address one of the critical aspects of this proposed treaty regime.
The purpose of this project is to examine, catalog, and compare the approaches that communities along the Texas–Mexico border take toward managing and allocating ground water resources, and then to analyze the problems that arise when different rules govern the same transboundary aquifers. Across Mexico’s border with Texas in the United States lie numerous aquifers on which both countries rely—but at present there is no international cooperation for using ground water that the nations share. Users on both sides of the boundary withdraw ground water, and in most cases the communities that overlie an aquifer in one country have developed some form of procedure or law to govern its use within their jurisdiction. However, practices for ground water governance in United States communities apply only to the users on that side of the border, as do those developed by and for Mexican communities. Aquifers used by people on both sides of the international boundary are, therefore, susceptible to over-withdrawal and contamination, as well as other risks that users of a shared underground water resource face when they do not coordinate their usage.
Although state and federal regulation exists in both countries, challenges such as implementation and ensuring local stakeholder cooperation often make it difficult for top-down management strategies to succeed. This paper will present a comprehensive survey of the existing rules, regulations, and practices that users and institutions on either side of the Texas-Mexico border employ to govern ground water usage within their jurisdictions. The survey will examine each nation’s federal laws; the laws of Texas and each Mexican state that borders Texas; and ground water-related rules employed by sub-state and local entities, institution, and stakeholder groups within each state. With this foundation, this paper will then discuss the hydrogeological context of these transboundary aquifers and the problems and conflicts that can arise when disparate management and allocation strategies are followed. Finally, the paper will identify implications to inform a discussion of how international law principles could serve as a framework to guide transboundary collaboration.
What factors enable successful transboundary groundwater governance? Unfortunately there is little research on transboundary aquifer governance. Research on transboundary surface water governance focuses on the making of formal treaties to govern allocation of surface water and pollution control. Yet the less visible nature of groundwater may make such agreements more difficult to obtain. In this paper we address this gap through a case study of the Hueco Bolson, which is the primary water supply of the sister cities of Ciudad Juarez and El Paso on the U.S.-Mexico border. With a combined and ever growing population of over 2.7 million people, the water resources in this region are under extreme pressure. Rapid urbanization and industrialization along the border, and substantial water needs for agriculture, have severely degraded the quality and quantity of the limited available freshwater. In response, many water users along the border rely more heavily on groundwater. Unregulated, unilateral pumping of aquifers has resulted in aquifer drawdown, brackish water intrusion, and even subsidence. Pollution from agricultural, industrial, and municipal runoff, as well as leaking septic tanks and underground fuel storage containers, has begun contaminating subsurface water quality. These anthropogenic sources of pollution exacerbate naturally occurring sources of impairment. So, not only is groundwater being pumped at an unprecedented rate, it is also being severely impaired by pollutants.
Historically, water governance in the region has focused exclusively on surface water and there is no international agreement governing groundwater. We use counterfactual analysis of three potential future scenarios to examine the potential for different approaches to resolve groundwater management problems in the region. The first scenario examines the potential for maintaining the status quo. Rapid growth in groundwater pumping in the region indicates that this approach will be limited by biophysical constraints. The second scenario examines the potential for an international treaty allocating groundwater. Spatial mismatches between local groundwater governance authorities and the national agencies involved in negotiating treaties make such an outcome appear unlikely. The third scenario examines the potential for informal agreements between local actors across the border. While such arrangements are not widely described in literature on international water governance, they are widely reported from studies of local water governance within countries, and we argue, may be the only feasible solution to groundwater conflicts.
Twenty-four countries of the American Hemisphere have come together with a common vision for the assessment and management of transboundary aquifer systems (TAS) under the UNESCO-ISARM Programme. The group of countries from Argentina/Chile to Canada developed a regional strategy with a unified mission to identify, assess and manage TAS following a set of principles suggested in the regional strategy, inspired by the recommendations of the UN Draft Articles on the Law of Transboundary Aquifers. The regional strategy emphasizes the linkages between the science (knowledge), social (participation) and legal (policies) domains as a common framework for a shared governance of TAS.
This presentation discusses the links and relevance of the UN Law of Transboundary Aquifers on how it might fit into the strategy for TAS of the Americas. Basically, the studies aim at strengthen transboundary water management by facilitating information sharing and knowledge management.
Important challenges are identified on how to combine the scientific and technical recommendations of the strategy with the numerous legal and institutional instruments of the 24 countries and the UN’s draft articles on TAS. The strategy explains the role of science for the collective understanding, developing, managing, and protecting of the TAS in the Americas. The strategy’s main message for decision makers is that a strong scientifically-based strategy should be the backbone for good informed decisions to sustain water resources and reduce potential conflict amongst neighboring countries.
A few examples show how the process has begun to develop for selected transboundary aquifers, including the Milk River between the US and Canada, the Rio Grande and Colorado River between the US and Mexico and the Guarani in South America. Finally, it is recognized that a single global convention will be difficult to relate to the wide variations in the TAS of the Americas.
Characterizing and identifying transboundary aquifers along the Mexico – U.S. border constitutes a major research challenge considering the limited and contrasting available data, as well as the discrepancies in methods used by the corresponding state and federal agencies within the various jurisdictions along the border. Recently, 36 aquifers have been identified along the Mexico-U.S border. However, the available data confirmed with a reasonable confidence level that only 16 of these aquifers are in fact transboundary; the evidence for the transboundary nature of the other 20 aquifers is only moderate to limited. The confidence level of transboundary aquifers in the region identified by Sanchez et al., 2016, is based on available data and integrates risks associated with aquifer conditions in terms of public health, mainly water contamination. Apart from hydrological conditions, the transboundary nature of the aquifers need to be reevaluated in terms of their social, economic, political and institutional dimensions, at the local and regional levels. This approach could offer new elements for assessing transboundary governance schemes and promoting more efficient transboundary management.
The challenge for identifying the transboundary nature of aquifers on the Mexico-U.S. border, however, is further complicated by the absence of any management and governance mechanisms for transboundary aquifers. The only official effort to seek binational groundwater management appears in the form of Minute 242, an amendment to the 1944 Treaty Between the United States of America and Mexico Relating to the Utilization of the Waters of the Colorado and Tijuana Rivers and of the Rio Grande (1944 Treaty), which limits extractions on the transboundary Yuma Aquifer between Arizona in the United States and Sonora in Mexico. Otherwise, there has been no effort on either sides of the border to address groundwater management from a binational perspective.
Separately, a number of local border communities have developed locally-specific transboundary water management strategies to cope with local water needs. These efforts have tended to focus on surface water issues and rarely on groundwater management considerations. Nonetheless, these unofficial arrangements have opened the door for discussions over the scope and scale of transboundary groundwater assessments beyond the traditional basin approach.
The purpose of this paper is to identify groundwater management mechanisms in border aquifers shared between Mexico and the United States by revising current management groundwater policies in the states of the U.S and in Mexico. The paper also addresses differences between the transboundary nature of aquifers and the important roles that such differences play in defining the binational and local agendas beyond hydrological conditions. The analysis is based and builds on the efforts of Sanchez et al. 2016 to identify and characterize transboundary aquifers along the Mexico – U.S. border.