Dysfunctional US Mexican Water Utilization Treaty

- Washington has threatened to cancel any future water deliveries to Mexico specified under the 1944 Utilization of Waters Treaty Between the United States of America and Mexico.

- While technically justified to do so under the treaty’s terms, cessation of the transfers may prove to be the most damaging of the available legal recourses.

- The ecosystem of the Upper Gulf of California, which is highly dependent upon the U.S. deliveries, is in serious danger of irreversible damage should water transfers cease.

- Current weather patterns and pollution resulting from cross-border industrialization have reduced the useable Mexican water supply, making complete debt repayment unlikely.

Various U.S. government agencies are now emphasizing that, due to Mexico’s non-compliance, Washington is prepared to suspend all water transfers to Mexico as specified under the 1944 Utilization of Waters Treaty Between the United States of America and Mexico. If Mexico’s water debt to this country is not quickly repaid, and its half of the treaty remains unfulfilled, an embargo on the water transfers may be levied against Mexico as soon as this November. This conflict has the potential to further tarnish relations between Mexico and the United States. Many Mexican public figures, as well as U.S. specialists, are appalled by the hardball diplomacy that the Bush administration has applied to Mexico in the aftermath of the flap between the two countries over U.S. policy towards Iraq. Indeed some have asked, “Why cooperate with the U.S. when there is no reciprocity?”

This latest setback in U.S.-Mexican relations highlights Washington’s insatiable appetite for the type of sycophancy that has reduced some of its Latin American allies to mere banana republics. Indifferent to the need for responsible trans-border policies throughout the hemisphere, the U.S. is truly interested in ‘cooperative’ agreements only when American aims are served exclusively. Since the inception of the latest Bush administration, the spirit of compromise increasingly has given way to one of command throughout the hemisphere, and Mexico has proven no exception. Inevitably, this divergence over the issue of water management and access will widen the growing political rift between these two neighbors, as well as further endanger the fragile environment that they both share.

Once Upon A Time…

The 1944 “Utilization of Waters” Treaty was intended to facilitate cooperation between Mexico and the United States through joint access to and cooperative use of the waters of the Rio Grande and the Colorado and Tijuana Rivers. The treaty stipulates that the United States is to receive from Mexico an annual average of no less than 350,000 acre-feet of the water deposited into the Rio Grande by its six tributaries – the Conchos, Escondido, Salado, San Diego and San Rodrigo Rivers and the Las Vacas Arroyo. Accounted for in five-year cycles, the water is transferred to Texan farmers for use in field irrigation. In return, the United States is to provide Mexico with 1.5 million acre-feet of water from the Colorado River, to be primarily released into the Colorado River Delta in the Upper Gulf of California. (One acre-foot, the amount necessary to cover one acre of land with one foot of water, is about 326,000 gallons.) Mexico currently owes the United States an accumulated debt of 1.4 million acre-feet, and should this amount remain unpaid in the next few months, official default will be registered in October of this year.

The treaty contains a proviso that waives the Mexican payment to the U.S. only in the case of “extraordinary drought”; for its part, Mexico has no guaranteed minimum entitlement to the U.S.-supplied waters demarcated by the treaty. This means that Washington is not bound to deliver any amount of water to Mexico should it feel unable to do so, regardless of whether non-payment is due to natural occurrence or general culpability. The El Paso Times recently quoted Texas Representative Solomon Ortiz as stating that “the only arrow left in [the United States’] quiver is to withhold the water that (the Mexicans) need.” In reality, the U.S. has three alternatives, all acutely sharpened and primed. If Mexico is in danger of default under the terms of the treaty, Washington is entitled to either withhold its water deliveries, terminate the treaty, or demand reparations in the form of payment from other Mexican water sources which are not specified in the treaty. In other words, no matter what the reason for Mexican non-payment, the United States is guaranteed legal recourse and cannot lose.

You Can Only Give What You’ve Got

Mexico is having such a hard time fulfilling its obligations under the treaty because it does, in fact, badly need water, and has few means of acquiring extra amounts. Attributable to the persistent fouling of Mexico’s waters by the maquiladora industry and a natural drought that has crippled the entire Rio Grande Valley, Mexico’s problem is that it simply does not have enough water for its own population, let alone for North America’s wildlife and its neighbor’s voraciously water-guzzling agricultural industry.

The Colorado River Delta in the Upper Gulf of California is one of North America’s most environmentally sensitive areas. Home to various species of flora and fauna, including the endangered Vaquita porpoise, this dangerously malnourished wetlands is a popular breeding ground for an abundance of birds and marine wildlife. Unfortunately, the Colorado River flows into the Upper Gulf of California only when the Hoover Dam (among others) accidentally spills over, or when the United States maintains its pledge to periodically contribute water to the marsh. The delta, already pitifully dry, has been deprived of water for decades both by U.S. agribusiness draw-downs and the widespread contamination of northern Mexico’s existing water supply. Should deliveries from the Colorado River cease, the possibility of extinction for certain species in the gulf is very real.

The contamination of northern Mexico’s waters by the maquiladora industry is already carrying out the ‘water withholding’ strategy to which Rep. Ortiz refers. The explosive growth of NAFTA-generated industry along the US-Mexico border has compounded the damage to Mexico’s already fragile public health and environmental condition. The hazardous waste that began to accumulate once NAFTA was implemented has done the most damage to the area’s water supply, polluting it with dioxins, DDT and other pesticides, toxic solvents, and industrial metals. Even brief exposure to these poisons can result in debilitating diseases. This water wouldn’t even meet the ‘acute toxicity limits’ of the U.S. Clean Water Act.

Texas farmers unfortunately also suffer from reduced productivity due to the same natural drought that has plagued northern Mexico. Texas’ offshore fish and crab industries have felt already the effects of the silt accumulation in the Rio Grande Estuary, due to the lack of sufficiently fast-moving water to keep the river’s mouth unobstructed. However, Texas differs from Mexico in that its people do not want for a supply of clean, potable water with which to take a bath, much less to deliver to their crops.

Texans have had far better luck weathering the storm than Mexicans, since the plight of Texas agriculture has been cushioned by its share of the projected $165 billion dollars in U.S. subsidies that Mexico City couldn’t possibly replicate. Were a comparable effort made toward improvements in Texas’ irrigation system, the need for such large quantities of water from the Rio Grande could be reduced, and the urgency with which Texas says it must receive Mexico’s late water payment, abated.

Best out of Three, Wins

Of the available options, the one most likely to result in the least damage to all parties involved would be to terminate the treaty. Its liquidation can be an important step in re-cementing the troubled U.S.-Mexican relationship, as the subsequent recognition will be that both sides have an equal interest in these waters that is undiminished by the other’s. A Mexican default of some magnitude is all but inevitable, and for all the progress the two neighbors have made towards forging cooperative relationships, this treaty does nothing more than highlight the latent conditionality that defines them. The spirit of the treaty rests upon compromise: it was drafted to ensure that both countries might benefit from the common resource that they share, and use it to sustain both their economies and the continent’s ecosystems. If both parties adhere to the austere letter of the treaty, Mexico will likely be left with even less water than it currently has when the Colorado River transfers are halted. Texan farmers will still get the water that they need as more domestic supply and more subsidies are diverted their way. Nonetheless, if the current status quo prevails, U.S.-Mexican relations will continue backsliding, and North America could lose a precious natural environment as the Colorado River Delta continues wasting away.

This analysis was prepared by Kanisha Bond, research associate at the Council on Hemispheric Affairs. Issued 11 June 2003.

The Council on Hemispheric Affairs, founded in 1975, is an independent, non-profit, non-partisan, tax-exempt research and information organization. It has been described on the Senate floor as being “one of the nation’s most respected bodies of scholars and policy makers.” For more information, please see our web page at http://www.coha.org or contact our Washington offices by phone (202) 216-9261, fax (202) 223-6035, or email coha@coha.org.

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