Water Treaty Concerns Trigger Lobbying Efforts, Calls for Changes

Saying that federal inaction on enforcement of a 70-year-old water treaty with Mexico could significantly impact the Rio Grande Valley, a local conservation district has enlisted a water lobby to help urge the White House to spring to action. 

But analysts say that no matter what comes of the district’s efforts, the outdated policies that govern the treaty will probably guarantee that disputes over water delivery will continue.

The Rio Grande Regional Water Authority, a reclamation and conservation organization created by the Texas Legislature in 2003, has signed a contract with Austin-based Water PR. The firm created the Texas for Treaty Compliance website, which includes an online petition urging President Obama to compel Mexico to meet the demands of the treaty.

The Texas Commission on Environmental Quality says that Mexico is behind on delivering the water under the terms of the Treaty of Feb. 3, 1944 — also known as the “Treaty of the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande.”

If Mexico continues to lag in its deliveries, the South Texas agriculture industry could crumble under the current drought conditions, area municipal water supplies could be in jeopardy and more than 130 rare species of animals could be affected because of habitat deterioration, according to the Texans for Treaty Compliance site.

The water authority’s action follows moves by the TCEQ; Agriculture Commissioner Todd Staples; Gov. Rick Perry; U.S. Sen. John Cornyn, R-Texas; and state Rep. Eddie Lucio III, D-Brownsville, who have all separately asked the Obama administration to force Mexico to comply.

Under the treaty, Mexico is required to release 1.75 million acre-feet of water every five years to the U.S. from six tributaries that feed into the Rio Grande. Ideally, Mexico would deliver an average annual amount of 350,000 acre-feet. In exchange, the U.S. delivers water from the Colorado River to Mexico. But the TCEQ says that under the treaty’s terms, Mexico owes the U.S. 471,000 acre-feet of water. (An acre-foot is nearly 326,000 gallons of water.)

The TCEQ says that Mexico is short on its annual deliveries, which have dipped steadily since the current five-year cycle began in 2010. During the first year of the cycle, 82 percent of the water owed was delivered. That fell to 29 percent the following year and to 6 percent this year.

But the terms of the treaty have become the subject of debate. Mexico could make good on its obligations in the cycle’s last year by releasing all the water needed to reach the 1.75 million acre-feet total. But U.S. lawmakers say the annual delivery of 350,000 acre-feet is required unless extreme drought conditions in Mexico make it impossible.

The debate over what is an “extraordinary drought” plays a significant factor.

TCEQ Commissioner Carlos Rubinstein said the treaty does not clearly define what an ”extraordinary drought” is, though he added that it isn’t silent on the issue either.

“The treaty says that an extraordinary drought, within the context of the treaty, is when the runoff in Mexico makes it difficult to provide the 350,000 acre-feet on average,” he said. “If you look at it, it means that Mexico should be treating the United States as a user and setting aside water for compliance.”

Instead, he said, Mexico is allocating more water for its domestic users, which means there is water, though it’s not being set aside as the agreement mandates.

Sally Spener, a foreign affairs officer at the International Boundary and Water Commission, the El Paso-based binational agency that oversees treaty compliance, says the agency is making every attempt to persuade Mexico to comply with the terms of the treaty.

“Addressing the water deficit is the highest priority of the U.S. section of the International Boundary and Water Commission, and we have been working very closely with the Department of State, as well as with the Mexican section of the commission, to develop a substantive strategy to address it,” she said.

Gabriel Eckstein, a professor at the Texas Wesleyan University School of Law and the director of the International Water Law Project, said that no matter what happens with the current deficit, future disputes are likely to arise because what he says is an outdated concept.

“[The treaty] has a very fixed amount of water in terms of the amounts Mexico is supposed to deliver and the U.S. is supposed to deliver at different points,” he said. “If you have a drought, how can you continue to deliver that fixed amount of water?”

Instead the treaty should be amended and delivery amounts should be based on current amounts, he said. If not, disputes are likely to continue because of the unpredictability of rainfall, droughts and agricultural demands.

Through an amendment process known as the “minute mechanism” the treaty can be updated if both governments agree to the terms of the change. There have been more than 300 amendments to date.

“Most modern water treaties are now looking at percentages on the amount that is actually present in the system,” Eckstein said. “That would require some more monitoring and maybe requiring Americans to go into Mexico and Mexicans coming to the U.S. So what? That could be done, and that’s how most modern treaties are being done.”

But Rubinstein said that basing amounts for delivery on percentages would not solve the current issue.

“In my mind, as history has shown us, the problem is not the treaty the problem is the lack of willingness to comply with it,” he said.

Eckstein said that regardless of the how the treaty is worded, there isn’t enough political will to urge Mexico to comply.

“[State and local governments] are afraid if you open up the treaty in terms of allocation, or in terms of what the definition of ‘extraordinary’ is for the purpose of defining ‘extraordinary drought’, you might open up a can of worms,” he said. Federal governments, he added, might be preoccupied with other sensitive issues.

“They have politics, they have gun control, they have drug issues, they have global warming, they have immigration issues,” he said. “Water on the border is not a major priority for the federal government.”

Rubinstein said that political posturing has played a significant role in the stalemate.

“We felt this way when we had the first deficit from 1992 to 2002,” he said.

“We felt that we were being traded for something else and it wasn’t until President Bush got engaged that we were able to successfully resolve it. Why we haven’t been able to see any meaningful releases from Mexico and why we have to go to great measures to get our own federal government engaged is beyond me.”