Treaty and Non-Treaty Mechanisms for Resolving the Rio Grande River Water Debt Dilemma
- In October 2020, Minute 325 of the International Boundary and Water Commission set a deadline of December 2023 for achieving a lasting solution to Mexico’s chronic arrears in satisfying its water delivery obligation to the United States under Article 4 of the 1944 Water Treaty. As the timeline to a solution to the Rio Grande River water payment dispute shortens, it is worth exploring the available treaty and non-treaty mechanisms that may be used to facilitate reliable compliance with the treaty’s provisions.
- Article 4 of the 1944 Water Treaty establishes Mexico’ treaty obligation to provide 1.75 million acre-feet of Rio Grande water to the United States over a five-year cycle but is arguably vague regarding when the water should be delivered and how to do so under “extraordinary” drought conditions. A 1968 agreement, Minute 234, specifies how a shortage occurring at the end of a five-year cycle is to be repaid but does not address the problem of extraordinary drought.
- Some progress toward improving Mexico’s Article 4 treaty compliance was realized between 2001 and 2003 after Mexico fell short of its water delivery obligation in 1997 while avoiding explicit reference to Minute 234. Minute 325, in contrast, does reference Minute 234. It does not, however, acknowledge climate change as a factor driving protracted region-wide drought and affecting Mexico’s treaty compliance capacity on the Rio Grande.
- The formal treaty mechanisms for satisfying Mexico’s water delivery obligation to the United States under second-cycle circumstances are found in Articles 4, 8 and 9 and in Minute 234.
- Non-treaty mechanisms available for enhancing Mexico’s compliance capacity are of growing importance for satisfying treaty obligations. These include water conservation and augmentation initiatives and various diagnostic, analytic and policy advisory tools. Some of these tools were adopted in Minutes 308 and 309 and indicated in Minute 325, which established a framework for cooperation. They are sure to factor into future compliance solutions. Other non-treaty mechanisms, such as establishing sub-basin binational watershed councils or fora, adjusting water concessions and rights to address water availability, employing water augmentation technologies, and adopting binational strategies to address climate change, have been recommended by binational water experts but have yet to be adopted.
- As negotiators consider the elements of a more lasting and sustainable solution to Mexico’s periodic water payment deficits, they are sure to consider the full range of treaty and non-treaty mechanisms with growing reliance on the latter for meeting treaty expectations. There may also be an effort to build limited basin-specific operational language around the concept of extraordinary drought.
The most vexing problems in U.S.-Mexico transboundary water management today are drought related, and the most contentious and chronic problem for nearly a quarter century is related to Mexico’s 1944 Water Treaty obligation on the middle-lower reach of the Rio Grande River. Since 1997, when Mexico missed a five-year delivery target on the Rio Grande, through October 2020 when it agreed to transfer international reservoir water to the United States to satisfy its treaty obligation, the problem of periodic shortages affecting downstream U.S. water claimants has become a frequent concern. The most recent fix by the International Boundary and Water Commission (IBWC), Minute 325, resolved the immediate water debt problem, wiping Mexico’s arrears off the international slate and inaugurating another five-year delivery cycle. Minute 325 also anticipates further progress facilitating Mexican compliance with treaty obligations. But it is worth asking the question: What mechanisms currently exist and what additional mechanisms are needed if Mexico is to comply with the treaty’s requirements more reliably at a time when a changing climate is altering the outlook for water abundance in the Rio Grande River Basin?
Before delving more deeply into the various mechanisms for treaty compliance, it is necessary to briefly describe the 1944 Treaty’s requirements for treaty satisfaction on the middle-lower Rio Grande. Articles 4-9 of the landmark 1944 Water Treaty address water sharing, flood control, and hydropower utilization and management on the middle-lower reach of the Rio Grande River. Article 4 famously allocates one-third of the waters of six named Mexican tributaries to the United States, with a minimum floor of 350,000 acre-feet of water annually to be delivered to the United States as averaged over a five-year delivery cycle — a total of 1,750,000 acre-feet of water every five years. Article 4 further provides that under conditions of extraordinary drought affecting Mexico’s ability to satisfy this requirement within a given five-year cycle, the U.S. may grant Mexico a forbearance and roll the debt over to the next five-year cycle. It bears noting that the diplomatic term of art, “extraordinary drought,” is used elsewhere in the treaty and in an earlier treaty for the upper Rio Grande River, but is nowhere expressly defined.
The 1944 Treaty is arguably vague on another matter: the question of how a delivery cycle debt is to be repaid. The treaty clearly references a two-cycle sequence, with the provision that the first cycle debt is to be repaid in full during the second cycle. But the text is less explicit as to whether a further debt might be incurred during the second cycle after the first cycle debt was repaid. The specific language is this: “any deficiencies existing at the end of the aforesaid cycle shall be made up in the following five-year cycle with water from the said measured tributaries” (Treaty, 1944: Art. 4). The two countries, acting through the IBWC, aimed to clarify this ambiguity upon completion of the second (and upstream) storage dam constructed on the international reach of the Rio Grande River — the Amistad Dam, inaugurated in 1968. That agreement, IBWC Minute 234, was more explicit as to Mexico’s obligation in the second cycle. Resolution 2 of Minute 234 stipulates that:
In the event of a deficiency in a cycle of five consecutive years in the minimum amount of water allotted to the United States for the said tributaries, the deficiency shall be made up in the following five-year cycle, together with any quantity of water which is needed to avoid a deficiency in the aforesaid following cycle by one or a combination of the following means (IBWC, 1969: 3).
Mexico, in plain reading, is to completely vacate its water debts to the United States by the end of the second cycle. But then there is the problem of extraordinary drought. Neither the treaty nor Minute 234 define the term, nor are they sufficiently explicit on the question of how a condition of extraordinary drought affects Mexico’s second-cycle delivery obligation (Treaty, 1944: Art. 4; IBWC, 1969). If there is one problem the treaty did not adequately anticipate it was a prolonged severe drought that extended for more than a decade, or more than two consecutive cycles. And that is the predicament currently challenging the Rio Grande River Basin. A prolonged drought that set in by the mid-1990s after several decades of water abundance on the middle-lower Rio Grande has largely persisted throughout Northern Mexico and the American Southwest region to the present day (Austria, 2018: 23-25). This drought, which many climate scientists associate with human-induced climate change (Wilder, et.al., 2013), when coupled with intensified agricultural and urban water uses in Mexico’s Rio Bravo irrigation districts, has added to the burden of treaty compliance over the past three decades.
Recent Experience with Treaty Compliance
When considering the options for treaty compliance, it is both necessary and useful to examine the way the water debt has been addressed in the past two decades since the regional drought problem manifested in the mid-1990s. The IBWC was first drawn into the Rio Grande drought mitigation picture in 1995. Mexico, driven by severe drought in the border states of Chihuahua, Coahuila, and Tamaulipas that threatened the availability of municipal water supplies for Mexican cities and towns along the Rio Grande River, approached the U.S. for a water loan. The U.S. agreed to help. Drawing the treaty’s Article 9 authority, Minute 293 extended temporary relief that added to Mexico’s arrearage for that cycle. Mexico, citing severe drought, was forced to asked for a debt rollover in 1997. But the drought persisted throughout the subsequent cycle. Mexico officially invoked the condition of an “extraordinary drought” in 2001 anticipating difficulty meeting its second-cycle obligation under Minute 234. Over the protests of Texas water authorities, Mexico remained in deficit at the cycle’s end in 2002, the first such occurrence since Minute 234 was signed and a crisis that reached the presidential docket at the time.
The crisis produced three IBWC minutes aimed at solving the problem. The first, Minute 307, signed in March 2001, committed Mexico to a contingency plan for supplying nearly 500,000 acre-feet of water to the U.S. in the short-term and to continue negotiations aimed at treaty compliance at cycle’s end (IBWC, 2001). That failed. But Minute 307 also contained a recommendation that the two countries work jointly to develop measures for drought management and the sustainable management of the basin going forward (IBWC, 2001; Szkeley, 2003).
The second minute, Minute 308, signed in June 2002, just four months prior to the conclusion of the five-year cycle on October 26, 2002, was more consequential (IBWC, 2002). Mexico agreed to a contingent assignment (transfer) of 90,000 acre-feet of water to the U.S. subject to the proviso that the U.S. would assist Mexico in supplying 243,213 acre-feet of water needed by downstream Mexican communities, among other contingencies. The two countries also agreed to support water conservation measures in Mexican irrigation districts in the Conchos watershed with funds from the North American Development Bank, the saved water to be gained from more efficient conservation practices to be dedicated to treaty compliance. Following Minute 307’s recommendation for greater binational cooperation on drought and sustainable management of the Rio Grande River (IBWC, 2001), Mexico agreed to share data on conservation and drought management planning with the U.S., and the two countries agreed the IBWC should serve as the forum for coordination of national drought plans affecting the Rio Grande Basin. The IBWC was encouraged to convene a binational summit on sustainable development of the basin’s water resources and, with the support of the two governments, to develop a binational sustainable water management plan for the basin. Finally, the IBWC was authorized to create an international advisory council composed of government and non-governmental representatives to advise it on basin water management (IBWC, 2002).
The third minute, Minute 309, signed in June 2003 after the second cycle ended in deficit, detailed the conservation measures and financing for the funded conservation projects in the Rio Conchos basin as authorized in Minute 308 and specified the transfer of saved water (estimated at 321,000 acre-feet over five years to the U.S. (IBWC, 2003). It also underscored the importance of the further binational drought management cooperation efforts mentioned in the preceding minute.
It is of more than passing interest that the treaty authority for settlement of the water dispute in Minutes 307 and 308 is simply Article 4 — no mention is made of Minute 234, possibly owing to reluctance on Mexico’s part and mutual recognition of Mexico’s inability to actually meet Minute 234’s conditions (Szekely, 2004). This omission is almost certainly no accident considering the IBWC’s scrupulous procedural care to ground its determinations in prior interpretation of the treaty. It is also worth noting that Mexico’s noncompliance with second-cycle conditions was widely disputed by Texans notwithstanding the commitments made in 2001, 2002 and 2003. Mexico would remain out of compliance until favorable hydrological conditions in 2005 allowed it to erase its chronic water debt (USIBWC, 2005).
Mexico remained in compliance for the 2005-2010 cycle but once more fell in arrears in 2011 and through the end of that cycle. In October 2015, it completed the cycle with a debt of 263,250 acre-feet. Further high-level discussions ensued. Mexico, in January 2016 finally repaid the debt and remained largely in compliance through 2018 (U.S. Embassy, Mexico, 2016; Finn, 2017; Clark, 2016), the third year of the second cycle. It then again fell behind, setting the stage for another potential second-cycle shortfall. With Texas interests questioning the value of the treaty’s Article 4 provisions and accusing Mexico again of bad faith, U.S. diplomats prevailed in persuading Mexico, at some risk to its downstream municipalities, to transfer storage water to the U.S. account just two days before the end of the second cycle on October 24, 2020 (Arevalo, 2020).
The new agreement, IBWC Minute 325, notably grounds its authority in Article 4 and Minute 234, reflecting what has consistently been the U.S. position on treaty interpretation (IBWC, 2020). It recognizes that Mexico’s compliance (the end-of-cycle water transfer to the United States) carries a risk of exhausting Mexico’s storage capacity to supply municipal water downstream of the Amistad Dam — principally the cities and towns located between Amistad and Falcon dams. To this end the U.S. agreed to use the authority in the treaty’s Article 9 that provides for emergency water loans should Mexico’s account deplete to the point it is unable to assure its cities of a month or more water supply (IBWC, 2020; Treaty, 1944: Art. 9). Mexico further agreed to immediately share its Rio Grande River operating plan with the United States, a significant concession considering that some analysts believe Mexico’s national water authority, CONAGUA, may have mismanaged water allocations in the basin over the 2019-2020 irrigation period, contributing to Mexico’s difficulty in satisfying treaty requirements. The agreement draws on Minute 308 to justify and formalize several forward-looking cooperative measures, including the official establishment of Rio Grande Hydrology Work Group of technical experts tasked with developing a dynamic analytical model for analyzing alternative water management scenarios and options for additional conservation in the service of treaty compliance (IBWC, 2020). Also grounded in Minute 308 is a newly created Rio Grande Policy Work Group tasked with overseeing the Hydrology Work Group and analyzing water management policies in the basin. Minute 325 sets a target of December 2023 for the conclusion of a new IBWC agreement, aimed at ensuring better Mexican treaty compliance in the future (IBWC, 2020; Spener, 2022).
The binational experience with the repeated arrearages and disputes over Mexico’s Article 4 water obligations suggests the range of treaty mechanisms that may be brought to bear on treaty satisfaction. It is notable that none of the official agreements (Minutes 293, 307, 308, 309 or 325) provide any reference to or formal recognition of a need to cooperatively address the long-term problem of climate change. Nor do these agreements recognize or consider water uses other than municipal-industrial, agricultural and hydropower in considerations of Rio Grande water management. With this in mind, we now turn to an enumeration of the known treaty and treaty-based mechanisms for addressing future shortages on the river and a consideration of additional mechanisms for improving treaty compliance in the future.
Mechanisms for Treaty Compliance
The diplomatic record identifies both treaty and non-treaty mechanisms for compliance with the 1944 Water Treaty’s water-sharing provisions for the middle-lower Rio Grande River. Technically, this distinction between treaty and non-treaty mechanisms is largely an academic one, as various non-treaty mechanisms are now adopted under the treaty umbrella with Minutes 307-309 and Minute 325, and in that sense are part of the treaty regime specific to the Rio Grande River.
Treaty mechanisms may be defined as compliance instructions found in the treaty text and subsequent agreements (minutes) stipulating how those terms are to be applied. The treaty mechanism bearing on Mexico’s water delivery obligations are found in Articles 4, 8 and 9 and in Minute 234’s implementing instructions. They also include the IBWC’s functional authority to investigate, consult and share information under Article 2 and Article 24 authority.
The basic treaty mechanisms for Mexico’s second-cycle water debt repayment are: 1) Mexico delivers sufficient tributary water to the United States to erase the debt and satisfy its second-cycle obligations — which, as Minute 234 specifies, may be satisfied with named tributary water allocated to the U.S. in excess of the minimum amount required by the treaty or with advance notice so as to ensure available storage of Mexico’s portion of the tributary water; 2) by transferring stored water in Mexico’s account to the U.S.; and 3) when sufficient precipitation fills each country’s conservation capacity to the brim in each of the two storage dams, initiating a new cycle (IBWC, 1969). Article 9 provides a further treaty mechanism facilitating the management of Mexican shortages that, as seen most recently in Minute 325, allows Mexico to transfer water in satisfaction of its treaty obligation while ensuring that the most basic needs of its downstream municipalities are met (Treaty, 1944: Art. 9).
Unmentioned and unutilized in recent IBWC minutes but still in the treaty arsenal are other provisions, including those in Article 8. This article, which stipulates the accounting of reservoir inflows and outflows, also provides that if one nation’s conservation capacity is filled and expected to remain filled with inflows from its own treaty-granted sources, the ownership of excess flows passes to the other country if that country’s conservation capacity is unfilled (Treaty, 1944: Art. 8c). It allows either country to temporarily use the other country’s unused conservation capacity to store additional water in upstream reservoirs with the precaution that in the event of flooding, the flood discharge is billed to the country using the other country’s storage capacity, while any inflow to the reservoirs is credited to the other country until its conservation capacity is filled (Treaty, 1944: Art 8c). Article 8 further provides that its stipulated water accounting regulations may be modified by the IBWC with the approval of the two governments (Treaty, 1944: Art.8).
We define non-treaty mechanisms as those devices not explicitly mentioned in the treaty or in Minute 234’s express implementing language that may be adopted by the IBWC as a means of satisfying a second-cycle Mexican shortage or boosting Mexico’s conservation and compliance capacity. Non-treaty mechanisms include various water conservation and water augmentation initiatives and other diagnostic, analytic and policy advisory tools. These devices have become increasingly important for strengthening Mexico’s capacity to meet its treaty obligations. Water conservation investments, as seen in Minutes 308-309, also feature in Minute 325 as the preferred means of adding to Mexico’s capacity to satisfy its treaty obligations. Binational data sharing on hydrologic conditions and water operations, coupled with harmonization of analytical methods and greater transparency in national water policy planning for the Rio Grande basin, has also been embraced as essential for more efficient allocations of Mexico’s water resources to meet national and binational needs. The development of permanent binational policy and technical advisory bodies formalizes and likely makes permanent the IBWC innovations embraced as early as 2017 (Finn, 2017), aiming at better data sharing and greater consensus on needed operational changes in managing water demand and supply across the basin. The elevation of the IBWC as the coordinator and convenor for discussions on water sharing may seem pro forma but is actually a significant advance, needed to better position the IBWC’s national sections in relation to their respective domestic water agencies. All these non-treaty mechanisms for addressing and mitigating shortages are now arguably incorporated within the treaty regime.
Other non-treaty mechanisms have been suggested that are not yet incorporated in the treaty regime. Some indication of these can be gleaned from proposals and suggestions that were put forward at the IBWC’s 2005 and 2012 water summits, the first of which focused exclusively on the Rio Grande River and the second on transboundary watershed management more generally. These summits convened a wide range of stakeholders and government officials in the Rio Grande basin and elsewhere to brainstorm possible improvements to watershed management in the Rio Grande and other transboundary river basins. Recommendations from the workgroups in these two summits are listed in Tables 1 and 2 below.
Table 1 — Workgroup Recommendations, Binational Rio Grande Summit, 2005
Table 2 — The 2012 IBWC Border Water Resources Summit: Select Recommendations from Four Workgroups
Prominent among the non-treaty mechanisms advanced in these summits are recommendations for improvements in conservation, data sharing and planning. Previous IBWC minutes on Rio Grande, Minutes 308 and 309, touch on aspects of these recommendations — prescribing stronger data sharing and technical improvements to irrigation systems to achieve greater efficiency in water use (IBWC, 2001; 2002). The desirability of a binational shared database for modeling and planning water uses and developing management strategies to facilitate treaty compliance has been at least tentatively embraced by the two governments. Minute 325, for example, calls for the development of “a framework for cooperation to develop tools to improve water management in the Rio Grande basin.”
Other recommendations, such as establishing binational watershed councils at the sub-basin level, creating binational watershed forums, adjusting water concessions and rights to better comport with water availability, achieving water augmentation by water reuse and desalination, fallowing or modifying crops grown to reduce water consumption, employing adaptive management techniques in national and binational water decision-making, incorporating environmental values riparian systems management, and developing binational strategies to cope with climate change have not yet been embraced but constitute a portfolio of practices associated with a watershed approach to transboundary rivers management that may contribute to treaty compliance in the future. The IBWC has been cautiously and unofficially moving toward embracing a watershed approach to transboundary rivers management, and some of these mechanisms are likely to receive serious consideration in the pending negotiations on the new binational framework agreement called for in Minute 325 (Duran, 2012; USIBWC, n.d.).
The one treaty-specific mechanism targeted in recommendations from the binational summit on the Rio Grande in 2005 is developing an operational definition of the term “extraordinary drought” to serve as a common frame of reference for determining the onset of shortage conditions justifying curtailment of Mexican deliveries, particularly those that might be required in a second-cycle situation. The problem of the term’s ambiguity and the potential for disagreement on how it should be operationalized and applied was acknowledged by the drafters of the 1944 Water Treaty and has been especially evident since 1999 on the Rio Grande (Mumme, Ibanez, Verdini, 2019). As Mexico’s lead negotiator for Minute 308, Ambassador Alberto Szekely, put it, “there is very little guidance about all that” (Szekely, 2003). Texas has the view that extraordinary drought exists when Mexico requests a water-debt rollover to a second cycle. Mexico, by contrast, appears at least informally to take the term to imply that not only would it be a basis for requesting a rollover to a second cycle, but that it allows further negotiation on how Mexico would satisfy a second-cycle debt (Szekely, 2004). While Mexico at one point suggested the two countries try to negotiate the issue (Szekely, 2004), to date the U.S. has been unwilling to discuss the question, and it has not been addressed in recent IBWC minutes (Szekely, 2003; 2004). Of relevance is the fact that the term was also sidestepped in agreements on shortage sharing on the Colorado River (Mumme, Ibáñez, Verdini, 2019).
Whither Treaty Compliance?
When we consider the treaty and non-treaty (or extra-treaty mechanisms) for achieving compliance with the treaty’s Article 4 Mexican obligation to deliver 1,750,000 acre-feet of water to the U.S. over a five-year cycle, it seems evident that while the treaty mechanisms allow considerable flexibility in meeting Mexico’s obligation, more non-treaty mechanisms will be necessary to give the treaty effect, given the over-allocation of water resources within the basin and greater hydrological variability of a changing climate. As the two countries ponder a new cooperative framework for treaty-based water sharing on the Rio Grande, it is worth considering what the most promising of these various mechanisms may be.
If we take Minutes 308 and 309 as a starting point and then look at Minute 325, the clear emphasis in both is improved irrigation and conveyance efficiencies in Mexico and greater transparency and data-sharing with respect to water operations in both countries. Minute 325 follows this same path. It requires Mexico and Texas to share their Rio Grande operating plans and to do so annually. It is reasonable to assume that these practices will continue to lead the IBWC’s approach to amplifying Mexico’s capacity to meet treaty obligations.
Minute 325 goes further, of course, establishing policy and hydrology technical advisory teams to help inform and guide future IBWC negotiations aimed at strengthening Mexico’s treaty compliance. This actually formalizes IBWC initiatives that we adopted as early as 2017. One of the advances associated with this initiative is Mexico’s agreement to use U.S. dynamic assessment and modeling software from Riverware to inform their joint analysis of basin hydrology (Finn, 2017; Riverware, 2020). The use of joint advisory teams mirrors an approach taken in the negotiations on shortage-sharing on the Colorado River where Mexican technicians were invited to directly observe and learn the diagnostic and operational procedures governing water allocation and use on the U.S. part of the basin (Mumme, Ibáñez, and Verdini, 2018).
We can only speculate what other mechanisms will be embraced in the negotiations on a longer-term joint operating plan — if we can call it that — scheduled to complete by December 2023. If we extrapolate from advances on the Colorado River, however, what we may very likely see in 2023 is the continuation of the practices adopted in earlier minutes, the further articulation of the two advisory groups into function workgroups that may include an ecological component, the adoption of some language acknowledging climate change and recommending some aspects of adaptive management for both countries, including some plans for proactive (or anticipatory) water use curtailment or rationing, particularly in agriculture, to kick in earlier in a five-year delivery cycle. This latter mechanism would recognize that water rights are over-allocated in both countries and that basin-wide shortage sharing may well require calibrated reductions in water use in both countries under extreme and protracted drought conditions. Such an approach would also mirror the concessions made under shortage conditions on the Colorado River in Minutes 319 and 323.
Owing, in part, to the variability and flexibility associated with Article 4 treaty compliance conditions, we may also see a basin-specific effort to build some limited operational language around the concept of extraordinary drought. This could be done conditionally without ceding either country’s legal position on the term. Such a Mexican declaration, for example, might be used to trigger certain Mexican and binational conservation measures or other mitigation initiatives.
In sum, treaty compliance on the Rio Grande is likely to invoke the full range of treaty mechanisms and see growing elaboration of non-treaty mechanisms to manage compliance in the foreseeable future. The 1944 Water Treaty itself enables the employment of non-treaty mechanisms insofar as the two countries can agree on the necessary mechanisms. What is nearly certain is that both countries will need to consider the medium- and long-term implications of a changing climate and begin to reckon with the prospect of sharing in conservation and water augmentation measures that facilitate Mexico’s treaty compliance.
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