Leave Some for the Fishes: Water for the Environment in the US-Mexico Agreement on the Colorado River

Leave Some for the Fishes: Water for the Environment in the US-Mexico Agreement on the Colorado River

By O.W. Bussey, Staff Contributor

Addressing Scarcity in the Colorado River Basin with Minute 323

The Colorado River is not the longest or biggest river in North America, but it is “the most legislated, most debated, and most litigated river in the entire world.”[1] The river forms the geological, economic, and political epicenter of the “greatest hydraulic society ever built in history,”[2] yet one that is widely considered unsustainable.[3] The Colorado provides water to nearly forty million people and irrigates five and a half million acres of land, supporting significant portions of nine US and Mexican states and twenty-two federally-recognized Indian tribes.[4] Since 2000, the Colorado River Basin has been suffering a historic drought, experiencing its lowest sixteen-year period of inflow in over 100 years of record keeping.[5] Reservoir storage has declined from nearly full to about half of capacity,[6] a level close to triggering severe cutbacks in water allocations among the basin states.[7]

Minute 323 is the latest binational response to the increasing water scarcity in the Colorado River Basin. On September 21, 2017, officials from Mexico, the United States, and the International Boundary & Water Commission (IBWC) reached a new agreement, adding to the Colorado River’s voluminous body of law Minute 323, “Extension of Cooperative Measures and Adoption of a Binational Water Scarcity Contingency Plan in the Colorado River Basin.”[8] An updated implementation plan for a 1944 treaty between the United States and Mexico, Minute 323 clarifies terms for sharing shortages, invests in environmental and infrastructure projects in Mexico, and allows Mexico greater flexibility in drawing on its allotment.[9]

Fresh water scarcity is one of the great crises of the twenty-first century.[10] Some experts predict that the increasingly acute water scarcity may lead to severe social and political upheaval.[11] The United States and Mexico have responded to substantial scarcity in the Colorado River Basin with Minute 323 despite challenging circumstances. The relationship between the two countries has often been riddled with conflict, particularly following the election of Donald Trump,[12] and the economic significance of the Colorado River waters made for incredibly high-stakes negotiations.  Overcoming a rocky relationship to address a difficult, costly crisis, Minute 323 serves as a good, though imperfect, model for other transboundary river agreements as countries around the world address scarcity.

Minute 323’s Water for the Environment Provision

One of the most interesting and innovative aspects of the agreement is its “Water for the Environment” program. The Minute devises an operational framework to enhance the riparian and estuarine ecology of the Colorado River Limitrophe and Delta.[13] IBWC’s Binational Environmental Work Group set goals of providing 45,000 acre-feet of water for the environment per year and up to $40 million for Delta restoration projects over the term of the Minute.[14]

To achieve the goals, the United States and Mexico will coordinate with a binational coalition of NGOs,[15] called Raise the River.[16] The US, Mexico, and Raise the River will each contribute an equal share of 210,000 acre-feet of water for environmental purposes, $9 million for scientific research, and $9 million for restoration projects. The Binational Environmental Work Group, featuring federal and state representatives from the US and Mexico as well as representatives from Raise the River, will implement the program by creating binational criteria for restoration projects and submitting proposals to the IBWC for approval.[17]

The Innovation and Significance of Water for the Environment

Environmental protection in most of the IBWC’s agreements has emphasized mitigating environmental harms that are concurrent to use of water resources.[18] But Minute 323 goes further by proactively seeking improvements in a long-degraded area of the basin ecosystem.[19] The agreement made more permanent the provisions of 2012’s Minute 319, which had established the Water for the Environment as a pilot program: the first known international agreement to allocate a quantity of water expressly for environmental purposes.[20]

Perhaps surprisingly, the program has market-based origins. Buying and leasing water for environmental purposes has been a developing tactic in the western United States since the 1980s.[21] There are several inherent limitations of the approach. The first is the high cost of water rights in regions experiencing scarcity,[22] making substantive environmental projects challenging. Another is that “long-term success in this endeavor will require funding levels in proportion to the cost of providing enough water to be ecologically meaningful.”[23]

The Raise the River coalition acquired water rights from voluntary sellers in the Mexicali Valley.[24] Minutes 319 and 323 built on the legwork and momentum of Raise the River in establishing its Water for the Environment program. The inclusion of the United States and Mexico as equal partners helped to overcome the high cost of water as a barrier to entry. The second challenge remains: the program has allocated water through December 31, 2026, but it will require substantial funding and water forever. Without consideration of increasing demand through population growth, scarcity will likely intensify: climate change is expected to reduce Colorado River flows by over 9% by 2060.[25] Delta restoration will come under increasing pressure from competing uses, and there is no guarantee that the Minute negotiators in 2026 and beyond will find water to spare.

Water for the Environment sets a new standard for transboundary river agreements, showing that even in times of scarcity, parties can protect the environment. Such agreements can go further than simply mitigating environmental harm. They can and should affirmatively create environmental benefits to basin ecosystems.

[1] Marc Reisner, Cadillac Desert 125 (1986).

[2] Jonathan S. King et. al., Getting to the Right Side of the River: Lessons for Binational Cooperation on the Road to Minute 319, 18 U. Denv. Water L. Rev. 36, 38 (2014) (citing Donald Worster, Rivers of Empire: Water, Aridity, and the Growth of the American West 276 (1985)).

[3] Stephen McCaffrey, The Law of International Watercourses 14 (2d ed. 2007).

[4] King at 38.

[5] Drought in the Colorado River Basin, Dept. of Interior, https://www.doi.gov/water/owdi.cr.drought/en/ (last visited Nov. 17, 2017).

[6] Id.

[7] Record of Decision, Colorado River Interim Guidelines for Lower Basin Shortages and the Coordinated Operations for Lake Powell and Lake Mead, Dept. of Interior 49-56 (December 2007) (available at https://www.usbr.gov/lc/region/programs/strategies/RecordofDecision.pdf) [hereinafter 2007 Guidelines].

[8] Int’l Boundary & Water Comm’n, United States and Mexico Conclude Colorado River Agreement (Sept. 27, 2017) (available at https://ibwc.gov/Files/Press_Release_092717.pdf) [hereinafter IBWC Press Release].

[9] Int’l Boundary & Water Comn’n, Minute 323: Extension of Cooperative Measures and Adoption of a Binational Water Scarcity Contingency Plan in the Colorado River Basin (Sept. 21 2017) [hereinafter Minute 323].

[10] Edith Brown Weiss, International Law in a Water-Scarce World 51 (2013).

[11] See, e.g., Nat’l Intelligence Council, Global Water Security: Intelligence Community Assessment (Feb. 2012), https://www.dni.gov/files/documents/Special%20Report_ICA%20Global%20Water%20Security.pdf.

[12] Tracy Wilkinson & Brian Bennett, “Trump Has First Meeting with Mexico’s Peña Nieto Amid Tense Relations,” LA Times, July 7, 2017, http://www.latimes.com/politics/washington/la-na-essential-washington-updates-trump-has-1st-meeting-with-mexico-s-1499425322-htmlstory.html.

[13] Minute 323, supra note 9, § VIII.

[14] Id.

[15] Id.

[16] Nature Conservancy, Raise the River: Reconnect the Colorado (Sept. 27, 2017), https://www.nature.org/ourinitiatives/regions/northamerica/areas/coloradoriver/colorado-river-minute-323-for-the-colorado-river.xml (last visited Nov. 17, 2017).

[17] Minute 323, supra note 9, at § VIII.C.

[18] See, e.g., Int’l Boundary & Water Comn’n, Minute 242: Recommendation for extension of the Wellton-Mohawk Bypass Drain in Mexican Territory (June 10, 1975); Int’l Boundary & Water Comm’n, Minute 316: Utilization of the Wellton-Mohawk Bypass Drain and Necessary Infrastructure in the United States for the Conveyance of Water by Mexico and Non-Governmental Organizations for Both Countries to the Santa Clara Wetland During the Yuma Desalting Plant Pilot Run (April 16, 2010).

[19] The United States’ mid-century dam projects were largely responsible for the Delta’s degradation. See Jennifer Pitt et al., Two Nations, One River: Managing Ecosystem Conservation in the Colorado River Delta, 40 Nat. Resources J. 819, 820 (2000).

[20] Jonathan S. King et. al., Getting to the Right Side of the River: Lessons for Binational Cooperation on the Road to Minute 319, 18 U. Denv. Water L. Rev. 36, 104 (2014); Press Release, Environmental Defense Fund, U.S. and Mexico to Send Water into Colorado River Delta (March 3, 2014) (available at https://www.edf.org/media/us-and-mexico-send-water-parched-colorado-river-delta).

[21] Reed D. Benson, Public Funding Programs for Environmental Water Acquisitions: Origins, Purposes, and Revenue Sources, 42 Envtl. L. 265, 266 (2012).

[22] Id. at 272-273.

[23] Id. at 274.

[24] Raise the River, Our Work, http://raisetheriver.org/our-work/ (last visited March 3, 2018).

[25] Mark Squillace, Water Transfers and Climate Change, 53 Nat. Resources J. 55, 57 (2013).