For more information about this or other publications from the CEC,

contact:

Commission for Environmental Cooperation

393, rue St-Jacques Ouest, bureau 200

Montréal (Québec) Canada H2Y 1N9

Tel.: (514) 350-4300

Fax: (514) 350-4314

E-mail: info@ccemtl.org

http://www.cec.org

ISBN: 2-89451-534-0

© Commission for Environmental Cooperation, 2001

ALL RIGHTS RESERVED.

Legal Deposit - Bibliothèque nationale du Québec, 2001

Legal Deposit - Bibliothèque nationale du Canada, 2001

Disponible en français – ISBN: 2-89451-535-9

Disponible en español – ISBN: 2-89451-536-7

This publication was prepared by the Secretariat of the Commission for

Environmental Cooperation (CEC). The views contained herein do not

necessarily reflect the views of the governments of Canada, Mexico, or

the United States of America.
PROFILE

In North America, we share a rich environmental heritage that

includes air, oceans and rivers, mountains and forests. Together, these

elements form the basis of a complex network of ecosystems that

sustains our livelihoods and well-being. If these ecosystems are to

continue to be a source of life and prosperity, they must be protected.

Doing so is a responsibility shared by Canada, Mexico, and the United

States.

The Commission for Environmental Cooperation (CEC) is an

international organization created by Canada, Mexico, and the United

States under the North American Agreement on Environmental Cooperation (NAAEC) to address regional environmental concerns, help

prevent potential trade and environmental conflicts, and promote the

effective enforcement of environmental law. The Agreement complements the environmental provisions of the North American Free Trade

Agreement (NAFTA).

The CEC accomplishes its work through the combined efforts of its

three principal components: the Council, the Secretariat and the Joint

Public Advisory Committee (JPAC). The Council is the governing body

of the CEC and is composed of the highest-level environmental authorities from each of the three countries. The Secretariat implements the

annual work program and provides administrative, technical and operational support to the Council. The Joint Public Advisory Committee is

composed of 15 citizens, five from each of the three countries, and

advises the Council on any matter within the scope of the Agreement.

MISSION

The CEC facilitates cooperation and public participation to foster

conservation, protection and enhancement of the North American environment for the benefit of present and future generations, in the context

of increasing economic, trade and social links among Canada, Mexico

and the United States.

VII
NORTH AMERICAN ENVIRONMENTAL

LAW AND POLICY SERIES

Produced by the CEC, the North American Environmental Law

and Policy series presents some of the most salient recent trends and

developments in environmental law and policy in Canada, Mexico and

the United States, including official documents related to the novel citizen submission procedure empowering individuals from the NAFTA

countries to allege that a Party to the agreement is failing to effectively

enforce its environmental laws.

VIII INLAND WATER MANAGEMENT REPORT
North American Boundary

and Transboundary

Inland Water Management Report

TABLE OF CONTENTS

Foreword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Executive Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Acknowledgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Chapter 1. Mexico’s Domestic Framework for Transboundary

Water Management. . . . . . . . . . . . . . . . . . . . 27

1.1 National Water Commission (CNA) . . . . . . . . . . . . . . . 28

1.1.1 State and Municipal Water Administrations. . . . . . . 29

1.1.2 Irrigation Districts. . . . . . . . . . . . . . . . . . . . . . 30

1.1.3 River Basin Councils (Consejos de Cuenca) . . . . . . . . 31

1.1.4 Water Quality . . . . . . . . . . . . . . . . . . . . . . . . 32

1.1.5 Public Registry of Water Rights . . . . . . . . . . . . . . 33

1.2 Department of Environment, Natural Resources and

Fisheries (Semarnap) . . . . . . . . . . . . . . . . . . . . . . . . 34

1.3 State Environmental Agencies . . . . . . . . . . . . . . . . . . . 35

1.4 Municipal Environmental Management . . . . . . . . . . . . . 35

Chapter 2. United States’ Domestic Framework for

Transboundary Water Management . . . . . . . . . . 37

2.1 Federal Legal and Institutional Framework . . . . . . . . . . . 38

3
2.1.1 Environmental Protection Agency (EPA) . . . . . . . . 39

2.1.2 Council on Environmental Quality (CEQ) . . . . . . . . 40

2.1.3 Department of Agriculture (USDA). . . . . . . . . . . . 41

2.1.3.1 US Forest Service (USFS) . . . . . . . . . . . . . 41

2.1.3.2 Natural Resources Conservation Service

(NRCS) . . . . . . . . . . . . . . . . . . . . . . . 41

2.1.4 National Oceanic and Atmospheric Administration

(NOAA) . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

2.1.5 US Army Corps of Engineers . . . . . . . . . . . . . . . 42

2.1.6 Department of Energy (DOE) . . . . . . . . . . . . . . . 42

2.1.7 Department of the Interior . . . . . . . . . . . . . . . . . 43

2.1.7.1 Bureau of Land Management (BLM) . . . . . . 43

2.1.7.2 US Fish and Wildlife Service (USFWS) . . . . . 44

2.1.7.3 US Geological Survey (USGS) . . . . . . . . . . 44

2.1.7.4 National Park Service (NPS) . . . . . . . . . . . 44

2.1.7.5 Bureau of Reclamation . . . . . . . . . . . . . . 44

2.1.8 US Coast Guard . . . . . . . . . . . . . . . . . . . . . . . 45

2.2 State-Level Legislation and Institutions . . . . . . . . . . . . . 46

2.2.1 Water Rights Allocation Systems . . . . . . . . . . . . . 47

2.2.1.1 Prior Appropriation . . . . . . . . . . . . . . . . 47

2.2.1.2 Riparian Rights . . . . . . . . . . . . . . . . . . 50

2.2.1.3 Groundwater. . . . . . . . . . . . . . . . . . . . 51

2.2.2 Interstate River Basin Compacts Commissions . . . . . 52

4 INLAND WATER MANAGEMENT REPORT
2.2.2.1 Colorado River Commission . . . . . . . . . . . 53

2.2.2.2 Río Grande Commission . . . . . . . . . . . . . 54

2.2.2.3 Great Lakes Commission . . . . . . . . . . . . . 54

2.3 Native American Governments . . . . . . . . . . . . . . . . . . 55

Chapter 3. Canada’s Domestic Framework for Transboundary

Water Management. . . . . . . . . . . . . . . . . . . . 57

3.1 Introduction: The Constitutional Basis for Transboundary

Water Management in Canada . . . . . . . . . . . . . . . . . . 57

3.2 The Legal Framework at the Federal Level . . . . . . . . . . . 60

3.2.1 Canada Water Act . . . . . . . . . . . . . . . . . . . . . . 61

3.2.2 International River Improvements Act. . . . . . . . . . . . 62

3.2.3 Fisheries Act . . . . . . . . . . . . . . . . . . . . . . . . . 63

3.2.4 Navigable Waters Protection Act. . . . . . . . . . . . . . . 64

3.2.5 Canada Shipping Act . . . . . . . . . . . . . . . . . . . . . 64

3.2.6 Canadian Environmental Protection Act. . . . . . . . . . . 64

3.2.7 Canadian Environmental Assessment Act . . . . . . . . . . 66

3.2.8 Northern Water Management . . . . . . . . . . . . . . . 67

3.2.9 Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . 68

3.3 The Policy and Institutional Framework at the Federal

Level . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

3.3.1 Federal Water Policy . . . . . . . . . . . . . . . . . . . . 68

3.3.2 Institutional and Administrative Arrangements . . . . 71

3.4 The Legal Framework at the Provincial Level . . . . . . . . . . 71

3.5 Interjurisdictional Water Management Agreements . . . . . . 72

TABLE OF CONTENTS 5
Chapter 4. Mexico and the United States: The Binational

Water Management Framework . . . . . . . . . . . . 75

4.1 Overview of the Legal Framework . . . . . . . . . . . . . . . . 75

4.2 International Boundary and Water Commission (IBWC). . . . 77

4.2.1 Reclamation . . . . . . . . . . . . . . . . . . . . . . . . . 78

4.2.2 Investigations and Dispute Settlement . . . . . . . . . . 78

4.2.3 Quasi-judicial Function. . . . . . . . . . . . . . . . . . . 78

4.2.4 Water Quality, Water Pollution . . . . . . . . . . . . . . 79

4.3 La Paz Framework Agreement . . . . . . . . . . . . . . . . . . 81

4.4 Border Environment Cooperation Commission . . . . . . . . . 83

4.4.1 BECC Project Certification . . . . . . . . . . . . . . . . . 84

4.4.2 North American Development Bank . . . . . . . . . . . 84

4.4.3 Expansion of the Mandate of the BECC/NADBank

Institutions . . . . . . . . . . . . . . . . . . . . . . . . . . 86

4.5 Other Binational Initiatives . . . . . . . . . . . . . . . . . . . . 88

4.5.1 Border XXI (Integrated Border Environmental Plan) . . 88

4.5.2 Good Neighbor Environmental Board and Regional

Advisory Council for Sustainable Development . . . . 90

4.6 Basin-Specific Frameworks . . . . . . . . . . . . . . . . . . . . 91

4.6.1 Tijuana River Basin . . . . . . . . . . . . . . . . . . . . . 92

4.6.2 Colorado River Basin . . . . . . . . . . . . . . . . . . . . 92

4.6.2.1 US “Law of the River” . . . . . . . . . . . . . . 93

4.6.2.2 1944 Water Utilization Treaty . . . . . . . . . . 96

6 INLAND WATER MANAGEMENT REPORT
4.6.3 Santa Cruz and San Pedro Basins . . . . . . . . . . . . . 98

4.6.4 Río Grande Basin . . . . . . . . . . . . . . . . . . . . . 101

Chapter 5. The United States and Canada: The Binational

Water Management Framework . . . . . . . . . . . . 109

5.1 The Boundary Waters Treaty and the International

Joint Commission . . . . . . . . . . . . . . . . . . . . . . . . . 110

5.1.1 Water Apportionment Oversight . . . . . . . . . . . . 113

5.1.2 Water Levels . . . . . . . . . . . . . . . . . . . . . . . . 115

5.1.3 Water Quality . . . . . . . . . . . . . . . . . . . . . . . 118

5.1.4 Air Quality . . . . . . . . . . . . . . . . . . . . . . . . . 121

5.2 Columbia River Treaty . . . . . . . . . . . . . . . . . . . . . . 122

5.3 Basin-specific Frameworks . . . . . . . . . . . . . . . . . . . . 124

5.3.1 Yukon River and Northwest International

Drainage Area . . . . . . . . . . . . . . . . . . . . . . . 124

5.3.2 Columbia River Basin . . . . . . . . . . . . . . . . . . . 126

5.3.3 Great Plains Region . . . . . . . . . . . . . . . . . . . . 130

5.3.4 Great Lakes Basin (Including Lake of the Woods) . . . 134

5.3.5 Upper St. Lawrence and Atlantic Drainage Basins. . . 135

Chapter 6. Issues and Challenges . . . . . . . . . . . . . . . . . 137

6.1 Mexico . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137

6.2 United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140

6.3 Canada . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

6.4 Common Themes on the Two Borders . . . . . . . . . . . . . 144

TABLE OF CONTENTS 7
6.5 Issues and Challenges Particular to the US-Canada Border. . 147

6.6 Issues and Challenges Particular to the US-Mexico Border . . 150

Chapter 7. Conclusion: Emerging Policy Considerations . . . . 155

7.1 The Nature of Water Resources . . . . . . . . . . . . . . . . . 155

7.2 The Availability and Adequacy of Information . . . . . . . . 156

7.3 The Allocation of Surface Water and Groundwater

Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

7.4 Demand Management and the Use of Economic

Instruments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157

7.5 A Sustainable Future: Large-scale Freshwater Exports

and Water Management Decisions . . . . . . . . . . . . . . . 159

Appendix: Transboundary Basin Fact Sheets . . . . . . . . . . . . 163

Yukon River Basin and Northwestern International

Drainage Area . . . . . . . . . . . . . . . . . . . . . . . 165

Columbia River Basin . . . . . . . . . . . . . . . . . . . . . . . 170

Great Plains Region . . . . . . . . . . . . . . . . . . . . . . . . 175

Great Lakes Basin (Including Lake of the Woods) . . . . . . . 180

Upper St. Lawrence and Atlantic Drainage Basins. . . . . . . 185

Tijuana River Basin . . . . . . . . . . . . . . . . . . . . . . . . 190

Colorado River Basin . . . . . . . . . . . . . . . . . . . . . . . 195

San Pedro and Santa Cruz River Basins . . . . . . . . . . . . . 201

Río Bravo Basin . . . . . . . . . . . . . . . . . . . . . . . . . . 206

8 INLAND WATER MANAGEMENT REPORT
FOREWORD

In the often complex, sometimes polemic, realm of regional environmental policy, one issue stands virtually alone in capturing the attention and concern of the public, governments and experts—the quantity

and quality of freshwater in North America. This North American Boundary and Transboundary Inland Water Management Report examines the

legal and policy underpinnings of the management of water in border

regions in North America, including key policy options for enhancing

freshwater management of this vital resource. It is intended to introduce

the ecological, economic and sociopolitical realities germane to freshwater resources and ecosystems in Canada, Mexico and the United States

and focuses on the legal and management regimes that have evolved

for boundary and transboundary surface waters and ecosystems. The

regimes available for addressing groundwater—especially that in transboundary aquifers—are much less well developed.

This report is intended to introduce the ecological, economic and

sociopolitical realities that have shaped the way that freshwater

resources and freshwater ecosystems have been “managed” in Canada,

Mexico and the United States. It focuses primarily on the legal and management regimes that have evolved for boundary and transboundary

surface waters and ecosystems. The regimes available for addressing

groundwater—especially that in transboundary aquifers—are much

less well developed.

The freshwater in the world’s streams, lakes and rivers makes up a

tiny fraction (about one part per 10,000) of the water on earth. Yet this

freshwater and these freshwater ecosystems support a multiplicity of

life-sustaining services that are intimately linked to human activities

and to the long-term sustainability of human societies and civilizations.

Throughout history, people have built their communities and

great cities along the shores of lakes and rivers. From ancient times, cultures and civilizations have evolved and adapted to the annual cycle of

renewal of the world’s mighty river systems. But the human stresses

now placed on freshwater ecosystems and freshwater resources around

9
the world are increasingly complex, increasingly pervasive, and increasingly threatening to the sustainability of these systems and resources.

People like to live, work, consume near, and release their wastes

—directly or indirectly—into streams, lakes and rivers. Similarly, they

have, with good intentions, dammed, diverted, channeled, impounded,

reclaimed and regulated lakes and rivers for many purposes, including

municipal water supplies, energy production, industry, navigation and,

especially, irrigation of agricultural crops.

For millions of years, freshwater ecosystems also have provided

the “stuff of life” in which the process of evolution worked to produce a

proliferation of species that flourished over millennia, often in geographically isolated and protected freshwater ecosystems. Yet, as a

result of the changes wrought by humankind, these cradles of life often

have been altered to the point where they now bear little resemblance

to their original state, and the life forms that once thrived no longer

survive.

The hydrological cycle—evaporation, atmospheric transport and

precipitation—provides a means of renewing and replenishing the

world’s freshwater heritage, yet there are limits. Today people live in a

world where every drop of rain or flake of snow contains traces of chemicals that can be attributed to human activities. Water—freshwater,

marine and in the tissues of living things—is an integrator of the many

stresses and demands that humankind has placed on the planetary life

support systems.

Boundary lakes, rivers and streams, and the rivers and streams

that cross political boundaries are typically important pressure points.

Often they force decision makers to try and develop management

regimes to accommodate the multiplicity of human and other uses of

these shared ecosystems, and the benefits and resources they provide.

The Boundary Waters Treaty of 1909, one such example, has for almost a

century served as an evolving framework for cooperation between Canada and the United States. Similarly, comprehensive mechanisms for

binational cooperation along the US-Mexico border have been in place

since 1889.

In developing this report, the North American Commission for

Environmental Cooperation relied heavily on specialists to draft various

sections (see Acknowledgments, p. 23). It is our hope that readers will

find this report to be a useful introduction to the rich—but not always

consistent—legacy of water management experiences on which Canada,

10 INLAND WATER MANAGEMENT REPORT
Mexico and the United States have to build. We also hope that it will help

stimulate a greater appreciation of this most precious of nature’s many

life-sustaining gifts. Finally, and perhaps most importantly, we hope

that the report might help catalyze creative and lasting solutions to some

of the challenges that the three countries will encounter as they seek to

manage their current uses of their freshwater heritage to meet the needs

of today without compromising the ability of future generations to meet

their own needs.

Janine Ferretti

Executive Director

North American Commission for Environmental Cooperation

FOREWORD 11

EXECUTIVE SUMMARY

In many regions along both international borders of North America, demands for water and pressures on aquatic ecosystems are on the

rise, spurred by economic and demographic changes. These changes,

combined with growing concerns about human health and environmental quality, are impelling citizens and governments at all levels to pay far

greater attention to the management and protection of boundary and

transboundary waters.

Freshwater resources situated along and across North America’s

international boundaries are managed through a variety of domestic

and binational mechanisms that have evolved over more than a century

to meet emerging issues and challenges. Traditionally, the framework

for managing boundary and transboundary water on the US-Mexico

border has focused on the apportionment of scarce surface water

resources. In the 1960s, water quality issues also began to receive serious

attention. Groundwater received little consideration until very recently,

despite the growing reliance on groundwater resources in North America.

The framework for managing transboundary water issues on the

US-Canada border is directed at surface water allocation arrangements,

water level maintenance and water quality. Other shared interests, such

as controlling floods and maximizing the production of hydroelectric

power, have also played an important role in the evolution of the binational framework for water management.

Frameworks for Domestic Water Management

Mexico

In the past, Mexico’s inland waters were managed almost exclusively by the national government, with very little involvement of state

governments. In recent years, however, the government has shifted

toward decentralization of federal water management, particularly in

the area of sewage and water infrastructure.

13
The 1992 National Waters Act, administered by the National Water

Commission (Comisión Nacional del Agua—CNA), is the main institutional framework for water management in Mexico. CNA, whose

responsibilities are primarily operational, oversees the development

and use of Mexico’s water resources. Since its creation in 1989, CNA has

sought to reduce the level of federal centralization in water resources

management by conceding more operational functions to states, municipalities and private firms.

The Department of Environment, Natural Resources and Fisheries

(Secretaría de Medio Ambiente, Recursos Naturales y Pesca—Semarnap) is

directly charged with implementing federal environmental laws. By

law, Semarnap is the leading agency responsible for protecting water

quality, which it does by setting standards and enforcing compliance

with regulatory requirements. Its authority in this area, however, is

largely administrative rather than operational. Most operational functions (for example, ownership and management of waste treatment

facilities), inspections and monitoring are carried out by CNA and other

federal, state and municipal entities.

United States

In the United States, water allocation is mainly a matter of state

law, with the western and southern states generally relying on prior

appropriation systems for surface water allocation, and the northern

and eastern states relying mainly on riparian rights systems. Groundwater allocation, which is also under state jurisdiction, is often managed

separately from surface water—a perpetual problem in water resources

management, given the pervasive interactions between groundwater

and surface water.

The federal Environmental Protection Agency implements laws to

protect the environment, including water quality and aquatic habitat,

for which many states have assumed administrative responsibility.

Through the US Bureau of Reclamation and the US Army Corps of Engineers, the federal government has participated in the development of

large water projects.

Interstate commissions administer water compact agreements

between state governments. Some of the important waterways affected

are the Colorado River, the Río Grande and the Great Lakes. In addition,

Native American groups have begun to play an increasingly significant

role in water management, particularly in the western United States.

14 INLAND WATER MANAGEMENT REPORT
Canada

The domestic framework for transboundary water management in

Canada is a product of constitutional provisions, federal and provincial

statutes, federal water policy, and intergovernmental institutional

arrangements. The provinces have primary responsibility for land

and resource management—including water management—within

their respective boundaries.

The provinces legislate in most areas of water use, including allocation of water rights for surface and groundwater. They also play an

important role in managing water through their responsibility for environmental protection and through provincial hydroelectric utilities. The

federal government’s responsibilities for water management derive

from its jurisdiction over such things as fisheries, navigation, interprovincial matters and relations with foreign governments. Through laws

such as the Fisheries Act and the Canadian Environmental Protection Act,

the federal government is also responsible for protecting water quality.

TheCanada Water Act(1970) permits the federal government to enter into

cooperative agreements with provincial governments to manage water

resources. The International River Improvement Act (1955) provides a statutory basis for federal regulation of dams, diversions and other developments that affect the flow of rivers crossing the US-Canada border. As in

parts of the United States, aboriginal peoples in Canada have a growing

influence on water management, particularly in western and northern

Canada.

Managing Transboundary Waters in North America

The US-Mexico Framework

The 1944 Treaty Relating to the Utilization of Waters of the Colorado and Tijuana Rivers and of the Río Grande—also known as the 1944

Water Utilization Treaty—is considered the centerpiece of the

US-Mexico legal framework for managing transboundary waters. It

established the binational International Boundary and Water Commission (IBWC, formerly the International Boundary Commission), which

has many responsibilities, including oversight of transboundary water

allocation (as established in the 1944 treaty and subsequent agreements),

management of reclamation works, and development of joint sewage

and sanitation facilities.

The 1944 Water Utilization Treaty has permitted IBWC’s administrative role to evolve in response to emerging needs and circumstances.

EXECUTIVE SUMMARY 15
As populations have grown in the border area, IBWC has become

increasingly active in dealing with sewage and industrial water pollution in transboundary rivers. The commission has also assumed responsibility for addressing the persistent problem of high salinity in waters

flowing from the United States to Mexico, particularly the Colorado

River.

Growing concerns about environmental quality in the border

region have fostered the creation of several recent binational institutions

with responsibilities for transboundary water management. The United

States-Mexico Border Environmental Cooperation Agreement (the La

Paz Agreement) of 1983 established a process to reduce and prevent various forms of pollution in the border area. Working groups under the

La Paz process have collaborated with IBWC to address specific problems, such as sewage in the Tijuana basin and discharges of hazardous

substances into transboundary waters.

The Border Environment Cooperation Commission (BECC) is a

binational commission established in 1994 to address shortcomings in

environmental infrastructure along the US-Mexico border. The commission was created at the same time as the North American Development

Bank (NADBank), and both grew out of the North American Free Trade

Agreement (NAFTA). BECC and NADBank have been particularly

active in providing technical assistance to border communities for water

and sanitation projects that meet strict environmental criteria. Another

recent binational initiative, the Integrated Border Environmental Plan,

or Border XXI, promotes intergovernmental cooperation and public

involvement in sustainable development in the border area.

Over the past three decades, rapid urbanization and economic

development along the US-Mexico border have exacerbated problems

associated with water scarcity and have placed increasing demands on

groundwater resources. At the same time, water quality and environmental protection have become very important concerns. Although it

has improved considerably in the recent years, adequate sewage is a persistent issue affecting US-Mexico transboundary rivers. Rapid population growth on both sides of the border, coupled with Mexico’s limited

financial resources, continue to undermine efforts to treat raw sewage

prior to its disposal in the Río Grande and other rivers.

Transboundary water management on the US-Mexico border

takes place largely within the framework of four major basins:

• The Tijuana River basin is characterized by dense and growing populations and extremely scarce surface water resources. Despite various

16 INLAND WATER MANAGEMENT REPORT
attempts, the two governments have failed to reach agreement on the

apportionment of what little surface water exists in the basin. Surface

water pollution and concerns about groundwater depletion add to

the issues facing this region.

• The Colorado River basin is one of the most heavily regulated and used

water systems in the world. Apportionment of the Colorado River’s

water within the United States is governed by a series of agreements

constituting the “Law of the River.” The 1944 Water Utilization

Treaty allocates a specific volume of the Colorado to Mexico—1,850

million cubic meters (Mm3) per year or 1.5 million acre-feet per year

(MAF/yr), equivalent to roughly 10 percent of the average annual

flow—but was silent on the quality of water to be delivered. As a

result, serious problems have arisen, the most important of which is

the increased salinity caused by upstream irrigation. This problem

was addressed in 1973 by Minute 242 to the 1944 treaty, but it continues to be a concern for Mexico.

• The waters of the Santa Cruz and San Pedro River basins, although part

of the Colorado system, are managed separately. The United States

and Mexico have no binational agreement on the apportionment of

these rivers. The most significant feature of these basins, from a water

management perspective, is their reliance on groundwater. Rapid

population growth highlights the urgent need for a transboundary

groundwater management strategy for the region.

• International apportionment of the waters of the Río Grande and its

tributaries is stipulated in a 1906 binational convention and further

clarified by the 1944 Water Utilization Treaty. IBWC is responsible for

implementing these agreements and operating the binational structures that regulate flows in the basin. Also under IBWC, the two countries are monitoring and mitigating salinity levels in the Río Grande.

This problem remains, however, as does the need for groundwater

management in the basin. Mexico also is concerned about the potential for transboundary groundwater contamination from prospective

hazardous and radioactive waste disposal sites in Texas. It is attempting to use the La Paz process to address its concerns.

The US-Canada Framework

Transboundary water management on the US-Canada border is

conducted within the framework established of the 1909 Boundary

Waters Treaty. Several other region-specific treaties, conventions and

agreements have since been adopted, including the Columbia River

EXECUTIVE SUMMARY 17
Treaty (1961) and the second Great Lakes Water Quality Agreement

(1978).

The International Joint Commission (IJC) was established by the

Boundary Waters Treaty of 1909 to oversee issues arising from the

waters shared by the United States and Canada. Initially, the IJC was

responsible for approving water uses, obstructions and diversions of

boundary and transboundary waters between Canada and the United

States, and for investigating and making recommendations on questions

or disputes referred to it by the national governments. Since beginning

its work in 1912, the commission has seen its jurisdiction and functions

expanded by treaties, agreements and protocols. With the creation of

several international pollution boards in the 1960s and the signing of the

first Great Lakes Water Quality Agreement in 1972, water quality was

added to the more traditional concerns of water level and flow regulation.

Several bilateral government-to-government mechanisms and

province-state arrangements also have a long history in dealing with

transboundary water-related issues independent of the IJC. Examples of

such mechanisms are the Columbia River Permanent Engineering

Board, the Garrison Consultative Group and its Joint Technical Committee, the Bilateral Monitoring Committees for the Poplar and Souris

Rivers, the Great Lakes Charter, and the Saint John Water Quality Committee.

In this report, discussions of transboundary water management on

the US-Canada border focus on five regions:

• The upper St. Lawrence and Atlantic drainage basins include several

transboundary and boundary waters from the region east of the Great

Lakes to the Bay of Fundy. Both surface and groundwater resources

in these areas are abundant. The most pressing issues related to

boundary and transboundary water management in these basins are

water quality and the maintenance of water levels. Water levels are

especially important to navigation and hydroelectric power production in the upper St. Lawrence. Concerns along the St. John River

relate to the potential flooding of agricultural land upstream of dams,

and springtime floods in the lower St. John River Valley. In the St.

Croix River basin, fluctuating water levels affect the local bass fishery

and other wildlife species.

• The Great Lakes system is the world’s largest surface water system and

an extremely important transboundary resource. The management of

water levels in this basin is important for industrial, domestic, envi18 INLAND WATER MANAGEMENT REPORT
ronmental and navigational purposes, as well as for flooding,

hydropower and recreation. Proposals for large-scale diversions and

the potential effects of climate change are two of many concerns that

make water level regulation and maintenance in the Great Lakes an

ongoing issue. Problems with eutrophication in the lower lakes and

contamination by persistent toxic substances have spurred much

binational activity on improving water quality since the mid-1960s.

The Great Lakes Water Quality Agreement (1972) established the

“ecosystem approach” to restoring and maintaining “the chemical,

physical, and biological integrity of the waters of the Great Lakes

Basin Ecosystem.” This approach has helped to promote the adoption

of a long-term, basinwide perspective on both sides of the border.

• The Great Plains contains several transboundary rivers, the most significant of which are the St. Mary, Milk, Souris and Red. Despite a

recent major flood on the Red River, water is considered a scarce

resource, particularly in the western portion of this region, and the

rivers have been apportioned accordingly. The apportionment agreement for the St. Mary and Milk Rivers was reached in 1921 and is

administered by a permanent board overseen by the IJC. The Souris

River is apportioned as per a 1992 agreement. The increased uses and

evaporation from storage reservoirs, and the prospective effects of

climate change add to concerns about increasing water scarcity in the

plains region.

• The Columbia River flows from Canada to the United States across the

British Columbia-Washington border. Management of the river is

governed by the 1961 Columbia River Treaty, which is aimed at

improving flood control and maximizing hydropower generation.

The treaty is overseen by a Permanent Engineering Board, established to assist in reconciling differences that may arise under the

treaty. The 1992 British Columbia-Washington Environmental Cooperation Agreement provides an additional forum for addressing

transboundary water issues in the basin. A still unresolved dispute

between the United States and Canada has arisen over how to accommodate concerns about fisheries conservation in managing one of the

Columbia River Treaty facilities, the Libby Dam.

• The Yukon River basin, the fifth largest in North America, and several

other contiguous boundary basins make up the Northwestern International Drainage Area. The most significant of these are the Alsek, Taku

and Stikine Rivers, which flow from Canada into the Alaskan Panhandle. Some of the tributaries within the Yukon basin are themselves boundary waters. The most important are the White,

EXECUTIVE SUMMARY 19
Porcupine and Fortymile Rivers. The bulk removal or transfer of

freshwater, water quality degradation from mining activities, and the

hydrological and ecological impacts of climate change are the issues

most likely to emerge over the next several decades.

Common Issues and Challenges

Despite some obvious differences between water management on

the two international boundaries, several common trends and issues

emerge in this report:

• Groundwater depletion and quality. The availability and quality of

groundwater are becoming a major concern in all three countries of

North America. Until recently, water managers gave little thought

to groundwater. But with increasing dependence on this resource

and more frequent groundwater depletion and contamination, the

need to develop specific groundwater management and protection

regimes has become clearer. Groundwater is becoming a particularly

important issue on the US-Mexico border, where growing populations and vulnerable groundwater supplies suggest an urgent need

for coordinated binational strategies. The lack of operative mechanisms for the management of transboundary groundwater resources

promises to become one of the most pressing challenges of the 21st

century. Failure to address the need to better manage transboundary

groundwater could heighten the potential for regional conflicts,

raising serious environmental security issues.

• Growing concern about the environment. Until fairly recently, water

management meant ensuring the availability of water for domestic,

industrial, agricultural, navigational and power needs, with little

regard for the impact of these activities on aquatic ecosystems. Today,

all national and binational water agencies recognize the need to consider the wider ecological implications of water management. Maintaining instream flows to permit essential biological functions is just

one environmental imperative that challenges water management

regimes in different parts of the continent, particularly in arid

regions. Elsewhere, the need to protect surface and groundwater

quality so it supports healthy fish and wildlife populations as well as

human health is emerging as an important issue.

• Public participation. Across North America, concern about the environment has been accompanied by greater public interest and

involvement in water issues. Popular interest in water issues, combined with the growth of a more participatory political culture in all

20 INLAND WATER MANAGEMENT REPORT
three countries, has led to demands for greater public involvement in

water-related decision making. These demands have resulted in a

variety of institutional changes to open the process of transboundary

water management to the public on both borders.

• Decentralization of water management. In Canada and the United States,

freshwater allocation falls under provincial and state jurisdiction. A

trend toward the devolution of water management also has emerged

in Mexico. From a local perspective, the empowerment of local governments and citizen groups facilitates the development of policies

designed to address pressing local issues. However, decentralized

control over water management extends the process and complexity

of national and binational decision making; binational agencies,

which traditionally have operated within a federal diplomatic framework, have to deal with a wider range of governments and other

stakeholders.

• Concern about the adequacy of financial resources. Lack of financial

resources is an ongoing concern for water management agencies in all

three countries, as well as for the binational agencies with responsibilities in transboundary water management. Rising demands and pressures on water resources throughout North America will call for

improved water-related research, data collection, monitoring and

other functions that are essential to effective water management, but

that require additional resources.

• Water conservation. In many parts of North America, people used to

think of water as a practically infinite resource that could be manipulated to a very high degree to suit their social and economic needs.

Today, however, many realize that much of the water on the continent is overapportioned, and they better understand the economic

and ecological costs of damming or diverting surface waters. In all

three countries, people generally recognize that they must use the

available water more efficiently rather than seek new supplies. Thus

water conservation is being promoted by a variety of means, including through economic instruments, the application of modern and

efficient technologies, and public education. These developments are

gaining importance for transboundary water management, where

the adoption of new and improved conservation measures can help

alleviate several current and potential problems.

• Water marketing and pricing. Over the past two decades, international

agencies, including the Organisation for Economic Co-operation and

Development (OECD) and the World Bank, have linked the achievement of more efficient and ecologically sustainable water consumpEXECUTIVE SUMMARY 21
tion patterns to the use of economic instruments such as the pricing of

water supplies and services. In addition to creating a disincentive for

waste, market-based, pay-for-service funding of water supply and

sanitation services promises to produce the much-needed resources

for water infrastructure projects. However, any transition to full-cost

pricing must include the assurance that the water requirements (for

basic human needs) of low-income groups will be met, particularly in

regions characterized by a substantial disparity of wealth.

• Large-scale diversions and bulk exports. The transfer of large quantities

of water from one basin to another raises issues of environmental

resource management in the context of long-term, sustainable development. Although large-scale diversion and transfer schemes have

been around for centuries, increased concerns about water scarcity in

arid regions have coincided with a resurgence of proposals for bulk

transfers of water. For example, some recently proposed, but highly

controversial, projects call for shipping water in tankers and even

building continental canal systems from northern Canada to the

southern United States. The emerging issue is how trade law and

principles may or should relate to bulk water exports (defined as the

withdrawal of water from surface waters or from groundwater for the

purpose of selling it to a third party outside the country for profit).

A Note on Terminology

In this report the term boundary waters refers to surface waters

located along an international boundary; waters that flow across the

boundary are called transboundary waters. Binational surface water

agreements between Canada and the United States differentiate

between boundary waters and transboundary waters. However, similar

agreements between the United States and Mexico use the term

transboundary waters to encompass both boundary and transboundary

waters. The authors of this report have attempted to use the proper terminology where appropriate.

Finally, it should be pointed out that the bulk of this report was

prepared in November 1999 and some government bodies referred to

may have subsequently changed names or reorganized.

22 INLAND WATER MANAGEMENT REPORT
ACKNOWLEDGMENTS

CONTRIBUTING AUTHORS:

Yukon/NWIDA Ralph Pentland

Columbia Chad Day, Kristen Boudreau,

Nancy Hackett

Great Plains Ralph Pentland

Great Lakes/Lake of the Woods David Allee, Leonard Dworsky

St. Lawrence/Atlantic Drainage Ralph Pentland

Tijuana Francisco Lara

Colorado Jason Morrison, Peter Gleick

Santa Cruz/San Pedro Diana Liverman, Bob Meridith,

Francisco Lara

Río Grande Mary Kelly

Groundwater (Canada/US) Richard Connor

Groundwater (Mexico/US) Stephen Mumme

Legal Framework (Canada/US) Owen Saunders, Steven Kennett

Legal Framework (Mexico/US) Mary Kelly, Alberto Székely

Institutional Framework (Canada/US) Owen Saunders, Steven Kennett,

Chad Day

Institutional Framework (Mexico/US) Stephen Mumme

BECC/NADBank Mark Spalding

EDITORS Greg Block, Richard Connor,

Andrew Hamilton, Mary Kelly,

James Linton, Roberto Sánchez

PROJECT COORDINATOR Richard Connor

CEC PROJECT MANAGERS Roberto Sánchez, Project Manager

for Transboundary Issues

(through 1997); Andrew Hamilton,

Senior Science Advisor

CEC DIRECTOR Greg Block

23

INTRODUCTION

Clean, abundant freshwater is an essential component of human

health, economic development and environmental quality. As they continue to grow economically and in population, many regions of North

America face the challenge of meeting growing demands for water without compromising its quality and availability.

Meeting this challenge is no easy task. The legal and institutional

frameworks for managing water in Canada, Mexico and the United

States are complex and often cumbersome, making it difficult for these

countries to respond to emerging issues and circumstances. Economic

development produces shifting demands for water and new use patterns that may not suit traditional management strategies. Concerns

about social equity and about involving the public in decision making

are causing significant changes in the way new strategies are developed.

The growing appreciation of the need to integrate economic with environmental and social considerations in water management adds to the

challenge.

Assessing water resources, sorting out the conflicting demands for

water, protecting aquatic ecosystems, responding to emerging uses and

demands for water, ensuring that fairness and equity prevail in providing access to water—these are some of the basic tasks that must be carried out by each country in managing its water resources. The challenge

of managing water is compounded when the water is shared by more

than one country. Indeed, the successful management of international

transboundary waters, perhaps as much as any other shared resource,

requires an extraordinary degree of cooperation and collaboration

between countries.

In essence, a successful transboundary water management framework must ensure that the countries sharing a given water resource have

fair and equitable—if not equal1—access to the water and that appropri25

1. The critical principle of the Boundary Waters Treaty between Canada and the United

States is that, despite the disproportionate size of the United States, the two parties

must have equal access to the water.
ate rules be established and followed to ensure its sustainability. The

failure to develop adequate transboundary water management frameworks can lead, as the past has shown, to severely strained international

relations. Yet examples of successful transboundary management

regimes for water abound, including those governing the two international boundaries considered in this study.

This report describes transboundary water management in North

America in the context of evolving environmental, economic and social

conditions. It also outlines the legal and institutional frameworks for

managing transboundary waters on the US-Mexico and US-Canada borders, as well as the relevant domestic laws and agencies in all three countries. And the report describes the history and evolution of water

management in North America with specific reference to transboundary

issues. Overall, it represents a first step in providing a continental perspective of the transboundary water management challenges facing the

three countries.

The report is a collaborative effort of several researchers from all

three countries working under the direction of the Secretariat of the

North American Commission for Environmental Cooperation. CEC

assembled a team of Canadian, Mexican and US researchers with broad

experience in transboundary water management in different parts of the

continent. Nine major transboundary basins were selected for careful

analysis and draft reports on surface water were prepared for each

basin. Separate sections were prepared on groundwater for the two

international borders and incorporated into chapters four and five.

Researchers also analyzed the domestic and transboundary legal

regimes for water allocation and management.

The appendix to this report presents an overview of the nine major

basins discussed in the report and includes maps of the basins. Each

basin is described in terms of its physical and social characteristics, the

overall balance of uses to which the basin’s water is put, and important

or emerging management issues, as well as relevant transboundary

issues.

26 INLAND WATER MANAGEMENT REPORT
CHAPTER 1

Mexico’s Domestic Framework for

Transboundary Water Management

The domestic framework for water resources management in

Mexico is established by the fifth paragraph of Article 27 of the Political

Constitution of the United Mexican States, which provides that all

transboundary water—superficial or groundwater—situated in or

under Mexican territory is regarded as “national water.2” According to

the sixth paragraph of that article, such national waters may be exploited

only through federal concessions. The 1992 National Waters Act (Ley de

Aguas Nacionales), implemented by the federal National Water Commission (Comisión Nacional del Agua—CNA), governs these concessions.

From a legal standpoint, the federal government is the principal actor

managing transboundary waters; the Department of Foreign Affairs

(Secretaría de Relaciones Exteriores) serves as the conduit for diplomatic

intercourse. This situation greatly facilitates matters of binational cooperation in view of the many actors, federal and state, involved on the US

side of the border.

To explore and use national waters, a party must obtain a “concession” (for private users) or an “assignation” (for government users),

which can be in force for a period of between five and 50 years.3 Both are

subject to certain conditions meant to ensure water quality, hydraulic

security, environmental protection, dam safety and control of flows.

Federal law also provides authority for designating by decree special

administrative and reserve zones in areas particularly affected by water

scarcity, poor water quality or environmental degradation. These zones

27

2. C. Díaz and J. Ramón, “Constitutional Framework for Water Regulation in Mexico”,

(1995) 35 Natural Resources Journal 489-499.

3. According to Article 17 of the Act, the exploitation and use of national waters are free

when done by manual means and for domestic and cattle use, but the water flow may

not be changed or significantly diminished and the water quality may not be altered.

The same applies, according to Article 18, to the use and exploitation of groundwater

through infrastructure, except when, for the public interest, the federal government

regulates it.
may be established during “emergency” or drought conditions, and in

them water use may be restricted or curtailed completely.4

With financial support from the World Bank through its Northern

Border Environmental Project, Mexico is making efforts to promote conservation, improve water management and foster better intersectorial

allocation of rights. In addition, the loan will promote the strengthening

of the water management capabilities of user associations in irrigation

districts (management of these districts has devolved from the federal

government to the users’ associations). Like water management policy

in the United States and Canada, Mexico’s water policy is evolving to

meet changing needs and demands. Because major new water storage

projects or technological alternatives such as desalination are likely to be

too expensive to consider in the near term, water conservation may often

be the most desirable solution.

The institutional framework for transboundary inland water management in Mexico is centered in the agencies, institutions and administrative bodies described in the sections that follow.

1.1 National Water Commission (CNA)

Although a trend toward decentralization has been evident in

recent years, the administration of water resources in Mexico is still

dominated by the federal government and is highly centralized. The

National Waters Act of 1992 designates the National Water Commission,

a semiautonomous federal agency, as the lead agency for the administration of national water resources. CNA was established in 1989 in

response to the perceived need for greater integration of national water

policies. Since 1995, CNA has been located administratively within

the Department of Environment, Natural Resources and Fisheries

(Secretaría de Medio Ambiente, Recursos Naturales y Pesca—Semarnap).

The commission is required to, among other things:

• develop and implement the national water plan;

• develop criteria and guidelines for coordinating and integrating

federal activity related to water resources use and development;

• develop and support the development of potable water systems,

sanitation systems, water treatment and wastewater recycling,

irrigation and drainage, and flood control;

28 INLAND WATER MANAGEMENT REPORT

4. World Bank, Staff Appraisal Report: Mexico Water Resources Management Project,

Report No. 15435-ME, Washington, DC: World Bank, 1966, 3.
• administer and protect the quantity and quality of national water

resources;

• construct, operate, and maintain federal hydraulic works directly

or by contracts and concessions with third parties;

• administer and oversee the allocation of water rights;

• referee water disputes and arbitrate them at the request of water

users within the terms of the law;

• promote efficient water use and water conservation; and

• administer and enforce the terms of the present law and apply such

sanctions as are specified for noncompliance that are not otherwise

reserved to the federal executive.

Under the authority of the National Waters Act, the CNA discharges

these various functions in coordination with other federal, state, and

municipal agencies. Since its inception, the agency has sought to reduce

the level of centralization in water resources administration by conceding more administrative functions to the states, municipalities (municipios) and private firms. Nevertheless, CNA remains the lead agency for

national water resource administration in virtually all functional areas.5

CNA has a significant impact on the management of transboundary water resources along the US-Mexico border through its direct

involvement in: (1) the administration of water supply and sanitation in

border states and municipios; (2) the management of national irrigation

districts; (3) the creation of river basin councils; (4) the maintenance of

water supply and treatment infrastructure; and (5) the maintenance of a

public registry of public water rights. Brief descriptions of these functional areas follow.

1.1.1 State and Municipal Water Administrations

Traditionally, state and municipal authorities have exercised little

independent authority over water resources within their jurisdictions

because of the constitutional and statutory dominance of federal institutions and their own limited financial capabilities. Under the 1992

National Waters Act and related administrative changes, however, CNA

is now delegating the planning and budgeting of urban water supply

and sewerage services to the states, which in turn provide technical

MEXICO’S DOMESTIC FRAMEWORK 29

5. G. Newman, Managing Mexico’s Environmental Challenge, London: Economist Intelligence Unit, 1995, 54.
assistance, support services, and budgetary support to water utilities

and local organizations.6 State plans are detailed, describing various

classes of water users, listing applicable statutes and relevant federal

and state agencies, and setting out priorities for water use. The largest

part of state funding for municipal water management is derived from

CNA, and CNA continues to monitor state plans and management activities, retaining an oversight role.

Just how far the decentralization of urban water management will

proceed remains to be seen. Within the Federal District (Mexico City), a

1992 presidential decree created a new municipal water commission

with the authority to contract with private utilities for water distribution, sewerage and wastewater treatment. This arrangement is intended

to introduce market mechanisms and greater economic efficiency in

municipal water management. Consistent with this approach, the government initiated a new program of municipal subcontracting in 1992.7

The privatization of municipal water management has just begun in

border states and municipios.

1.1.2 Irrigation Districts

As the lead agency for water management in Mexico, the CNA

exercises considerable influence over rural and agricultural water management through its control of the nation’s reclamation works and federal irrigation districts. Since its inception, the CNA has sought to

introduce a greater degree of autonomy in irrigation district management, giving user groups greater influence. Under the 1992 National

Waters Act, the voting power of federal agencies in district water committees (comites hidraulicas) has been reduced. These committees are

headed by a chief engineer designated by CNA and comprise representatives of each of the user groups within the district. Other federal agencies, including the Department of Agriculture (Secretaría de Agricultura),

federal credit agencies, and state and municipal agencies, may also be

represented on a nonvoting basis.

Although CNA is now the only federal voting member on comites

hidraulicas, the continued presence of federal authorities in irrigation

30 INLAND WATER MANAGEMENT REPORT

6. Ibid., 55; and H. Ingram, N. Laney and D. Gillilan, Divided Waters, Tucson: University

of Arizona Press, 1995, 174-175.

7. This new program, known as the build-operate-transfer, or BOT, permits municipalities to establish organismos operadores, or operating entities, to contract out for

wastewater treatment services. These bodies may enter into contracts with private

enterprises to construct and operate the utility. State governments normally participate as financial guarantors for the operating entities. See Newman, Managing Mexico’s Environmental Challenge, 57-60.
district management, coupled with their technical expertise and the

financial resources they provide for agricultural development at the district level, lend considerable weight to the federal government in district-level water management.

Of Mexico’s 101 irrigation districts over 1,000 hectares (ha) in size,

27 are located in border states, and 11 of these are located directly along

the border.8

1.1.3 River Basin Councils (Consejos de Cuenca)

The CNA Technical Council is empowered to create the river basin

councils (consejos de cuenca). These bodies coordinate CNA activities

with federal, state and municipal agencies, as well as the representatives

of water users of each basin. More specifically, the councils propose, formulate and execute programs for water management, for the development of hydraulic infrastructure and services, and for the conservation

of the basin’s water resources.

The river basin councils are chaired by a representative of CNA,

who has tie-breaking voting authority. Additional voting members

include representatives of the Department of Budget and Public Credit

(Secretaría de Hacienda y Crédito), Department of Energy, Mining and

State-owned Industries (Secretaría de Energía, Minas e Industria

Paraestatal), Department of Agriculture, and Semarnap, and up to six

representatives of water user groups within the basin. Other representatives of federal agencies, states, municipalities and nongovernmental

organizations may be invited to participate in matters relevant to their

jurisdictions and interests.

The river basin councils propose to CNA changes in water management regulations that would better serve the needs of the basin; organize workshops and study groups to evaluate and improve water

management conditions and practices within the basin; work with CNA

to set priorities of use and address problems of water emergencies,

drought, depletion and contamination of water resources within the

basin; and assist CNA in setting user fees for the delivery and consumption of water resources within the basin.

Since the adoption of the National Waters Act in 1992, two river

basin councils have been established: (1) the Lerma-Chapala Basin

MEXICO’S DOMESTIC FRAMEWORK 31

8. A. Orive et al., La Irrigación en México, Mexico, DF: Editorial Grijalbo, 1970, 164-170.
Council, created on 8 December 1992 and covering the states of

Guanajuato, Jalisco, México, Michoacán and Querétaro; and (2) the Río

Bravo (Río Grande) Basin Council, created on 12 January 1994 and covering the states of Durango, Coahuila, Chihuahua, Nuevo León and

Tamaulipas.9

A third river basin council, for the Valley of Mexico, was being

established by CNA at the time of writing this report.

Adoption of this river basin approach is consistent with federal

efforts to reduce the level of centralization in national water management. It also represents a significant departure from previous water

management practices, and aims to provide a more integrated and cohesive intergovernmental response to the conservation of water resources

at the river basin level throughout Mexico.

1.1.4 Water Quality

Semarnap, through its subsidiary agencies, has the lead role in setting water quality standards and enforcing compliance with water quality regulations. CNA also has a substantial water quality management

role through its operational oversight of water conservation activities

and through its participation in the development, operation and management of reclamation works, sewage and wastewater treatment facilities. Furthermore, CNA is responsible for monitoring and regulating the

quality of water bodies, including groundwater aquifers.

Some of the water quality functions performed by these two agencies are: disseminating technical regulations for the discharge of pollutants and wastewater affecting water bodies; issuing licenses and permits

to sewage and wastewater treatment facilities; promulgating technical

norms for wastewater recycling; promulgating technical norms for the

use of urban wastewater in agriculture; and developing policy recommendations affecting the location of industrial facilities whose effluent

may affect the quality of water resources.

The role of states and municipalities in water quality management

is largely focused on municipal water supply and sanitation. Under the

1992 National Waters Act, municipalities and other providers of water

and sewer services are obligated to provide sufficient water treatment

to comply with national sanitary standards for drinking water and

32 INLAND WATER MANAGEMENT REPORT

9. Several observers assert that little progress has been made toward the implementation of the Río Grande Council, however.
wastewater. Under the 1988 Ecology Law,10 states and municipalities

are required to regulate the discharge of sewage and wastewater, provide for adequate sewage treatment, and maintain a registry of pollutants discharged to sewage systems, among other requirements. Many

state and municipal governments, however, lack the funds to finance

such activities themselves and remain dependent on federal support.

State and local water management authorities are becoming

increasingly involved in the ecological aspects of land-use management.

Among other things, they designate and manage conservation zones,

protected areas and other instruments of land-use management sensitive to environmental concerns. Such practices potentially affect water

quality by regulating the scope and character of urban development.

The relatively recent activities of the states and municipalities in this

area derive from the 1988 Ecology Law and new state environmental

laws.

Under the same statutory authority, states and localities also may

require environmental impact assessments. The new state environmental laws also authorize the state environmental agencies actively to limit

the discharge of pollutants from industrial and agricultural sources,

including pesticides and fertilizers.

1.1.5 Public Registry of Water Rights

In accordance with the National Waters Act, CNA maintains a Public Registry of Water Rights, which includes all titles of concession and

assignation, as well as all permits to construct drilling works for the

extraction of groundwater. The registry also includes contracts for the

partial or total transfer of water rights. As of March 1996, 43,400 water

users had initiated the registration process, and 37,600 of these had formally registered, accounting for more than 80 percent of total water use

in Mexico by volume. The registry also keeps a permanent national

record, by zones and regions, of groundwater extraction and groundwater springs. This record keeping permits the monitoring of aquifers in

order to regulate their use and exploitation.

Water rights, once registered, are transferable and can be bought

and sold, as long as such a transaction is determined to be technically

feasible and as long as the transfer does not adversely affect uncompenMEXICO’S DOMESTIC FRAMEWORK 33

10. Ley General de Equilibro Ecológico y la Protección al Ambiente, Mexico, DF: Editorial

Porrua, 1991.
sated third parties. Full implementation of a water rights market,

however, is not likely to occur until the water rights registry is complete,

CNA has fully implemented the appropriate fee schedules and CNA

staff has received additional training in water rights management.

1.2 Department of Environment, Natural Resources and Fisheries

(Semarnap)

Semarnap is directly charged with implementing the federal environmental laws. The mandate of this multipurpose agency includes

environmental protection, natural resources management and the management of Mexico’s marine resources. By law, it is the leading agency

with responsibility for protecting water quality, a function it shares with

CNA. Semarnap’s authority in this area is largely administrative rather

than operational. Most operational functions (such as ownership and

management of waste treatment facilities), inspection and monitoring

are carried out by CNA and other federal, state and municipal entities.

Semarnap has overall responsibility for setting standards and

enforcing compliance with regulatory requirements. It also is the primary mechanism for the articulation of public complaints about water

pollution throughout the country. Additional environmental functions

of the department affecting the management of water resources include:

developing standards for cross-media pollution; regulating solid and

hazardous wastes, radioactive substances, and air pollution; administering the environmental impact review process; designating and

enforcing natural protected areas and the conservation of wildlife; and

identifying and promoting new technologies for environmental protection. All these functions contribute to Mexico’s capacity to manage its

water resources.

Semarnap’s environmental functions are divided between two

autonomous agencies, the National Institute of Ecology (Instituto

Nacional de Ecología—INE) and the Office of the Federal Attorney for

Environmental Protection (Procuraduría Federal para la Protección al

Ambiente—Profepa). INE is responsible for the research, development

and evaluation of Mexico’s environmental policies; for the implementation of environmental programs; and for natural resources conservation.

Profepa is charged with enforcing compliance with INE regulations,

investigating noncompliance, providing public access, and responding

to public complaints of environmental noncompliance and activities

harmful to the environment.

34 INLAND WATER MANAGEMENT REPORT
1.3 State Environmental Agencies

Since 1988, as part of the overall trend toward decentralizing public administration, the federal government has encouraged Mexican

states to adopt their own environmental laws and environmental agencies. By the end of 1994, all but two of the 31 states had adopted environmental laws and established state environmental agencies to facilitate

environmental protection. As a rule, state environmental laws emulated

the 1988 Ecology Law, allowing for variations in state administration

and practice. Important aspects of national environmental management

at the state and local levels include: operational control of municipal

wastewater collection and treatment; application of the environmental

impact and assessment process; norm setting within the parameters set

by federal guidelines; conservation of natural resources and protected

areas; land-use planning; and application of sanctions for violations of

environmental laws.11

The establishment of state environmental agencies has not yet significantly altered the pattern of federal predominance in Mexican environmental management, particularly in water management. At present,

many state-level environmental agencies are fledgling operations with

limited resources. State agencies remain heavily dependent on federal

financing for their operating budgets and remain underfunded in relation to their statutory assignments. Where conflicts between state and

federal agencies have arisen, federal authorities have often prevailed on

the basis of federal preemption and fiscal dominance. State agencies are

less able to draw on technically qualified personnel and thus suffer from

shortages of inspectors, analysts and other skilled personnel.12 These

weaknesses, and the related needs of state and municipal environmental

agencies are a major focus of the World Bank’s Northern Border Environmental Project for Mexico.

1.4 Municipal Environmental Management

Provisions for municipal participation in environmental management are based on Article 115 of the Mexican Constitution and the 1988

MEXICO’S DOMESTIC FRAMEWORK 35

11. Environmental Law Institute, Decentralization of Environmental Protection in Mexico:

An Overview of State and Local Law Institutions, Washington, DC: ELI, 1996.

12. World Bank, Staff Appraisal Report, Mexico Northern Border Environment Project,

Report No. 12603-ME, Latin American and Caribbean Regional Office, International Bank for Reconstruction and Development, Washington, DC: World Bank,

16 May 1994, Annex I, 7-10.
Ecology Law. Municipalities, or municipios, are governed in greater

detail by the state environmental laws. Under the new state environmental laws, municipios now have the authority to establish environmental agencies or assign the administration of environmental laws to

existing divisions of municipal administration. Municipios also may

establish public advisory boards, known in some states as municipal

environmental commissions (comisiónes municipales de ecología), or other

mechanisms for providing public input in environmental administration and planning. At present, municipal governments have made only

limited progress in elaborating systems of environmental administration and public participation, although various municipalities along

Mexico’s northern border have made some headway in this regard. The

World Bank’s Northern Border Environmental Project for Mexico is

working toward, among other things, enhancement of the capacity of

municipal governments to participate in environmental administration.

Insofar as state and municipal environmental legislation affects

water management, the division of responsibilities between state and

municipal governments is specified by state law. Border state environmental laws vary in the assignment of responsibilities to municipalities.

The state of Nuevo León, for example, delegates to municipios the very

general responsibility for preserving and restoring ecological equilibrium and protecting the environment in those areas deriving from its

public service mandate, but without expressly mentioning water pollution. The state of Coahuila assigns to its municipios the responsibility for

promoting the rational use, conservation and recycling of assigned

municipal water, as well as the capture and efficient use of rainwater,

and for preventing and controlling the contamination of federal water

assigned for the discharge of municipal public services. In the state of

Sonora, the municipios are responsible for preventing and controlling

contamination of federal waters assigned to municipios or their concessionaires for the provision of public services, as well as those waters discharged in drainage and sewage systems in population centers or

discharged to water bodies under state jurisdiction.

Other municipal responsibilities that have indirect impacts on

water management are: regulation of solid and hazardous waste, air

pollution, contingency planning, environmental impact assessment,

creation and maintenance of ecological preserves, land-use planning,

and human settlements management.

36 INLAND WATER MANAGEMENT REPORT
CHAPTER 2

United States’ Domestic Framework for

Transboundary Water Management

In the United States, the intrastate allocation of water rights is basically a matter of state law. Even water rights held by the federal government—federal reserved water rights associated with federal lands—and

Native American water rights (see section 2.3) are often subject to state

water rights adjudication procedures.13 State constitutions, particularly

in those states that follow the prior appropriation doctrine (see section

2.2.1.1), often have provisions stating that all waters belong to the state

or are held by the state in trust for the public.

The federal government’s powers under the US Constitution,

however, impose some limits on state authority over water allocation.

For example, the US Supreme Court has limited the ability of states to

prohibit out-of-state water exports.14 Federal powers over navigation

and power generation and federal environmental laws can also constrain states’ abilities to approve certain water allocations. Of particular

importance to this report, the federal government’s power to enter into

treaties limits state authority over international (transboundary) waters.

Nevertheless, in terms of water resource management the federal government’s primary responsibilities relate to water quality.

The legal and institutional framework for transboundary inland

water management in the United States comprises a wide range of federal, state, tribal, municipal and intergovernmental laws and agencies.

The most relevant of these laws and institutions are described in the rest

37

13. C.J. Strong and S.W. Strack, “The McCarran Amendment Is Alive and Well”, in

Water Law: Trends, Policies and Practice, K.M. Carr and J.D. Crammond, ed., Chicago: American Bar Association, 1995, 43-57. Some adjudications in western US

states deal with entire river basins to ensure that the adjudication encompasses federal rights.

14. Sporhase v. Nebraska, 458 US 941 (1982). This decision held that water is an article of

commerce and thus strict state limits on exports are not permissible if they unreasonably burden commerce without federal authorization. States can, however,

regulate exports on the basis of water conservation and public welfare.
of this chapter, starting at the federal level and proceeding to the state

and subnational levels. An overview of management and jurisdictional

issues pertaining to groundwater is presented in section 2.2.1.3.

2.1 Federal Legal and Institutional Framework

Federal environmental and natural resources legislation encompasses several different laws; they address water issues mostly in terms

of water quality. Some of these laws are described below:

• The federal Clean Water Act prohibits any person from discharging a

pollutant from a point source into navigable waters without a permit

from the National Pollutant Discharge Elimination System (NPDES).

It also requires each state to identify those waters that cannot meet

water quality standards without control of non-point sources; the categories of non-point sources that significantly pollute those waters;

the methods used to determine best management practices for those

categories of non-point sources; and any existing programs aimed at

curbing non-point pollution.

• The National Environmental Policy Act (NEPA) authorizes the federal

government, in cooperation with state and local governments, and

other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance,

to foster and promote the general welfare, to create and maintain conditions under which people and nature can exist in productive harmony, and to fulfill the social, economic and other requirements of

present and future generations.

• The Safe Drinking Water Act requires all public water systems to meet

certain national primary drinking-water regulations.

• The Federal Endangered Species Act declares that federal agencies shall

cooperate with state and local agencies to resolve water resource

issues in concert with the conservation of endangered species.

• The Fish and Wildlife Coordination Actrequires federal agencies to consult with the US Fish and Wildlife Service to identify potential mitigation steps before permitting or licensing certain water development

projects.

• The Wild and Scenic Rivers Act prohibits any activities, including logging, water diversions or development projects, that could conflict

with the purposes of the “Wild and Scenic” designation allowed for

specified rivers.

38 INLAND WATER MANAGEMENT REPORT
• Various other statutes govern construction and operation of federal

reclamation projects. The Pacific Northwest Power Planning and Conservation Act applies to the Northwest.

It is beyond the scope of this report to provide full descriptions of

these detailed and complex federal laws.15 It is of significance to the

management of transboundary waters, however, that each of these acts

may affect both the development of new water supply sources and the

management of existing water rights and supply reservoirs. For example, development of a new reservoir would have to comply, at a minimum, with restrictions imposed under the federal Clean Water Act,

NEPA and the Endangered Species Act. In other cases, the Endangered Species Act may require changes in the management of existing hydropower

developments.16

The following sections briefly describe the main federal institutions responsible for managing US freshwater resources and the legislative context in which these institutions function.17

2.1.1 Environmental Protection Agency (EPA)

Established in December 1970 by an executive order submitted to

Congress, EPA is the independent agency in the executive branch that

has primary responsibility for implementing, monitoring and enforcing

the nation’s environmental protection laws. EPA’s mission is to protect

human health and to safeguard the natural environment—air, water

and land—on which life depends. It also is a key research agency, conducting analysis on toxic substances, pesticides, air and water quality,

hazardous wastes, radiation, and the causes and effects of acid rain.

EPA has 10 regional offices: Boston, New York, Philadelphia,

Atlanta, Chicago, Dallas, Kansas City, Denver, San Francisco and Seattle. The regional offices are responsible for carrying out, within their

region, the national program objectives established by EPA. They work

with federal, state, interstate, local, tribal and nongovernmental organizations to ensure that regional needs and circumstances are considered and federal environmental laws are implemented. Six of the EPA

UNITED STATES’ DOMESTIC FRAMEWORK 39

15. Summaries may be found at http://www.cec.org.

16. For a thorough discussion of these issues from a legal perspective in the context of

the northwest, see “Symposium: Northwest Water Law”, (1996) 26(1) Environmental Law.

17. This section is drawn primarily from: The US Government Manual 1995/96, Washington, DC: Government Printing Office, 1995; and C. Kerwin, Guide to US Federal

Regulatory Agencies, Washington, DC: CQ Press, 1995.
regional offices are involved in and provide leadership for regional

domestic and binational efforts to protect many US-Canada waters. In

addition, EPA’s regional office in Kansas City carries out a key role in

certain domestic and US-Canada cooperation aimed at protecting prairie waters ecosystems, which include many waters critical for the survival of migratory birds.

EPA does not have a direct role in water allocation, nor does it have

a separate program for the protection of groundwater quality. It does,

however, have significant responsibilities as part of US-Canada relations under the Boundary Waters Treaty to help ensure that allocations

of certain US-Canada waters are planned and carried out in an environmentally sound manner consistent with up-to-date interpretations of

compliance with Article IV on water quality protection of the 1909

Boundary Waters Treaty. EPA has the following major responsibilities

for surface water quality:

• Issue permits for the discharge of any pollutant into navigable waters.

• In cooperation with the US Coast Guard, coordinate cleanup of oil

and chemical spills into waterways.

• Develop effluent guidelines to control discharge of specific water

pollutants.

• Develop criteria that serve as guidance when states and tribes set

surface-water quality standards.

• Administer federal grants programs to subsidize the cost of

building sewage treatment facilities.

• Regulate disposal of waste materials into the oceans.

• In cooperation with the US Army Corps of Engineers, issue permits

for the dredging and filling of wetlands.

• Set national drinking water standards.

• Regulate underground injection of waste materials.

• Authorize states and tribes to issue permits and set standards for

surface-water quality standards.

2.1.2 Council on Environmental Quality (CEQ)

CEQ was established within the Executive Office of the President

by the National Environmental Policy Act to formulate and recommend

40 INLAND WATER MANAGEMENT REPORT
national policies that would promote improvements in the quality of the

environment. The council develops and recommends national policies

that further environmental quality; analyzes changes or trends in

national environmental matters; reviews and appraises federal government programs to determine their contributions to sound environmental policy; conducts research related to ecological systems and

environmental quality; assists the president in preparing the annual

environmental quality report to Congress; and oversees implementation of NEPA. CEQ also resolves interagency disputes on NEPA-related

matters, including preparation of environmental impact statements

(EIS).18 Since 1979, the provisions of NEPA have been extended to federal agency actions that have significant environmental impacts beyond

the territorial boundaries of the United States. Thus CEQ’s EIS functions

are potentially significant for transboundary water management.

2.1.3 Department of Agriculture (USDA)

Although not directly involved with water management issues,

two branches of the USDA: the US Forestry Service and the Natural

Resources Conservation Service—have general mandates that give

them some authority over certain water-related issues.

2.1.3.1 US Forest Service (USFS)

A federal agency created in 1905, USFS is responsible for national

leadership in forestry. It manages forests and grasslands on over

77 million ha (191 million acres) of public lands under the principle of

multiple use. In doing so, USFS strives to meet the nation’s need for

wood products while assuring the availability of other forest system

benefits for the public, including wildlife habitat and water supplies.

2.1.3.2 Natural Resources Conservation Service (NRCS)

Formerly the Soil Conservation Service, the NRCS helps farmers,

ranchers and other private landowners develop voluntary programs to

conserve and protect natural resources, including water. NRCS is the

technical delivery arm for conservation of the US Department of Agriculture.

UNITED STATES’ DOMESTIC FRAMEWORK 41

18. US Environmental Protection Agency, Facts about the National Environmental Policy

Act, Washington, DC: EPA, 1989; and Council on Environmental Quality, Regulations for Implementing the Procedural Provisions of the National Environmental Policy

Act, Washington, DC: CEQ, Executive Office of the President, 1986.
Key water-related NRCS programs include: Conservation Technical Assistance, Snow Survey and Water Supply Forecasting Program,

River Basin Surveys and Investigations, Resource Conservation and

Development Program, Wetlands Reserve Program, and the Colorado

River Basin Salinity Control Program.

2.1.4 National Oceanic and Atmospheric Administration (NOAA)

An agency within the Department of Commerce, NOAA is primarily concerned with developing scientific understanding of oceanic and

atmospheric natural resources. NOAA disseminates information about

the short- and long-term consequences of environmental modification

and provides services to a variety of governmental and nongovernmental organizations in support of air quality, agricultural, forestry

and marine activities. Marine activities are supported by the National

Marine Fisheries Service, which assists in administering the Endangered

Species Act and the new Essential Fish Habitat Program. Finally, NOAA

conducts research and implements services related to inland waterways, including the St. Lawrence Seaway and the Great Lakes.

2.1.5 US Army Corps of Engineers

The Corps of Engineers is a division of the US Army and is administered by the Defense Department. Its major role is to regulate all

construction projects in the navigable waterways of the United States.

In cooperation with the Environmental Protection Agency, the Corps

promulgates regulations governing the transportation and dumping of

dredged materials in navigable waters under Section 404 of the Clean

Water Act.

The majority of the Corps’s activities involve water resource development projects, including the planning, construction, and often operation of dams, reservoirs, levees, harbors, waterways and locks. These

projects are designed to provide protection from floods, reduce transportation costs, supply water for municipal and industrial use, generate

hydroelectric power, create recreation opportunities, improve wildlife

and water quality, and protect the shorelines of lakes and oceans. The

Corps also provides assistance to state, local and nonfederal water

resource management groups, as well as to foreign countries, for the

purpose of improving water management activities.

2.1.6 Department of Energy (DOE)

Created in 1977, the DOE is responsible for research and development on energy technology and overseeing energy conservation and

42 INLAND WATER MANAGEMENT REPORT
energy regulatory programs, as well as the nation’s nuclear weapons

program. The department also is responsible for marketing power produced at federal hydroelectric projects and reservoirs. The marketing

and transmission of power is carried out by five power administrations

including two that are relevant to this study:

• Bonneville Power Administration. Established in 1937, the Bonneville

Power Administration markets electric power and sells surplus

power generated by federal hydroelectric projects in the Pacific

Northwest. These projects are constructed and operated by the Army

Corps of Engineers and the Bureau of Reclamation. The Bonneville

Power Administration is also responsible for energy conservation,

renewable resource development and fish and wildlife enhancement

under the provisions of the Pacific Northwest Electric Power Planning

and Conservation Act of 1980. In cooperation with the Army Corps of

Engineers, the administration represents the United States in implementing the provisions of the Columbia River Treaty with Canada.

• Western Area Power Administration. The Western Area Power Administration, established in 1977, is responsible for marketing and transmitting federal electric power in the western United States, where it

operates 47 hydropower facilities. The Western Area Power Administration is also responsible for planning, constructing and maintaining

any additional federal facilities that may be authorized in the future.

2.1.7 Department of the Interior

The Department of the Interior is the federal agency with primary

responsibilities for the management of natural resources. These

resources include public lands, national parks and monuments, recreation areas, wildlife refuges, fish and wildlife (including endangered

species), and minerals. Within the Department of the Interior, several

bureaus have specific responsibilities for various natural resources, as

described in the sections that follow,

2.1.7.1 Bureau of Land Management (BLM)

The Bureau of Land Management, created in 1946, is responsible

for administering more than 109 million ha (270 million acres) of public

lands, located mainly in the western United States and Alaska. The

bureau is also responsible for developing the mineral resources found

on an additional 236 million ha (582 million acres) of public lands,

including lands administered by other federal agencies.

UNITED STATES’ DOMESTIC FRAMEWORK 43
BLM regulates federal grazing lands, protects and preserves timberland for permanent forest production, manages watersheds to protect soil and water quality, and issues permits for mineral exploration.

2.1.7.2 US Fish and Wildlife Service (USFWS)

The US Fish and Wildlife Service, created in 1940, manages more

than 500 National Wildlife Refuges and 166 waterfowl production area,

totaling over 37 million ha (92 million acres). The service is responsible

for the conservation and management of fish and wildlife, including

migratory birds, endangered species, certain marine mammals, and

freshwater fish. As the lead federal agency for the protection and

improvement of habitat for fish and wildlife, USFWS regulates and preserves wetlands for waterfowl and other species within the National

Wildlife Refuge system. USFWS also plays a key role in administering

the Endangered Species Act.

Major water quality-related activities of the FWS include: monitoring pesticides and other contaminants in the environment; studying

ecology and fish and wildlife populations; performing environmental

impact assessments of hydroelectric projects and stream channelization;

and assessing requests for dredge and fill permits under the Clean Water

Act.

2.1.7.3 US Geological Survey (USGS)

Established in 1879, USGS surveys and identifies the mineral,

water and energy resources of the United States. In the area of water,

USGS maintains a water resources office in every state, and conducts

nationwide assessments of the supply, quality and use of water

resources.

2.1.7.4 National Park Service (NPS)

Established in 1916, the fundamental objective of the NPS is to

conserve the scenery, natural and historic objects, and wildlife in the

nation’s park system. The service manages an extensive system of

national parks, monuments, historic sites, riverways, seashores, lakeshores and recreation areas, more than 365 areas in all.

2.1.7.5 Bureau of Reclamation

Established by theReclamation Act of 1902 and created as a separate

agency in 1907, the bureau is responsible for water and power develop44 INLAND WATER MANAGEMENT REPORT
ment in the 17 contiguous western states. Its activities include municipal

and industrial water services, irrigation systems, hydropower generation, flood control, river regulation, fish and wildlife enhancement,

recreational opportunities, and water quality improvement. Bureau reclamation projects currently in operation include 348 storage reservoirs,

thousands of miles of canals and other distribution facilities, and 58

hydroelectric projects. These projects are funded in part by taxes levied

on the direct beneficiaries. With its infrastructure largely in place, the

bureau now focuses more on promoting the efficient management and

conservation of water resources than on developing new supplies of

water.

The primary activities of the bureau include:

• working in concert with other governmental and

nongovernmental organizations to develop water

conservation plans and working to improve the

management of existing water resources;

• designing and constructing water resources projects;

• assisting other federal and state agencies in protecting

surface and groundwater resources from hazardous

waste contamination and restoring affected resources;

• providing engineering and technical support to federal and

state agencies and Native American governments; and

• preparing and reviewing, in cooperation with other federal

agencies, environmental impact statements for proposed

federal water resource projects.

2.1.8 US Coast Guard

Established in 1915, the US Coast Guard became part of the Department of Transportation in 1967. Although the Coast Guard is a branch of

the armed services, it acts as a service within the Department of Transportation, except in times of war or as specified by presidential directive.

The Coast Guard is responsible for enforcing elements of the federal Water Pollution Control Act and various other statutes relating to the

protection of the marine environment from oil and other material spills.

In addition, through its Port Safety and Security Program, the Coast

Guard enforces rules and regulations governing the safety and security

of ports, the movement of vessels and the prevention of pollution in US

waterways.

UNITED STATES’ DOMESTIC FRAMEWORK 45
2.2 State-Level Legislation and Institutions

State law generally governs allocation of water resources.19 In

addition, states have begun to play a central role in protecting water

quality. Because Congress designed most major environmental legislation so it could be administered by state and local governments, the

states are the key implementers of most major environmental programs.

As of the late 1970s and early 1980s, state and local governments began

to shoulder a greater share of environmental program responsibilities.

Under the “new federalism” of recent presidential administrations, public policy responsibilities were shifted from the federal to the state and

local levels of government. In general, state responsibilities in pollution

control have increased significantly during the past two decades.

The early national environmental laws were enacted with a strong

federal focus that provided for consistency across states—many states

did not have the capacity needed to carry out major environmental programs themselves. Nevertheless, while these laws gave EPA the main

role in the delivery of environmental programs, they also allowed states

to assume these responsibilities as they developed the capacity to do so.

As a result, the states have now become key players in the implementation of a full range of environmental program responsibilities.

Essentially, operational responsibilities for many of EPA’s major environmental programs, including water pollution control and abatement,

lie with the states.

In part in response to their increased program responsibilities,

states have undergone transformations in their fiscal, managerial and

political capacities for implementing federal environmental programs.

Yet these transformations are not uniform across the 50 states. Comparative analyses of state environmental policy indicate that the states

diverge widely in their capacity for environmental protection, including

freshwater resources.

46 INLAND WATER MANAGEMENT REPORT

19. For more on state-level legislation and institutions, see E.J. Ringquis, Environmental

Protection at the State Level, Armonk, NY: M.E. Sharpe, 1993; W. Lowry, The Dimensions of Federalism, Durham, NC: Duke University Press, 1993; U.S. General

Accounting Office, EPA and the States: Environmental Challenges Require a Better

Working Relationship, GAO/RCED-95-64, 1995; and J.P. Lester, “Federalism and

State Environmental Policy”, in Environmental Politics and Policy: Theories and

Evidence, 2nd ed., J.P. Lester, ed., Durham, NC: Duke University Press, 1995.
2.2.1 Water Rights Allocation Systems

The northern US states employ a variety of water rights allocation

systems.20 The states along the western portion of the US-Canada border

(Alaska, Washington, Idaho, Montana and North Dakota) rely on prior

appropriation systems for surface water allocation. Two of these states

(Washington and North Dakota) have what are sometimes called

“hybrid” systems, because existing riparian rights were preserved when

the prior appropriation statutory scheme was enacted. The US states in

the Great Lakes area and the eastern portion of the US-Canada border

rely on the riparian doctrine, overlaid by a modern permit system which

allows the states to better track and control water use.

A relative lack of abundance characterizes freshwater resources

along the US-Mexico border. Thus, in this region, instream flow, federal

reserved rights, Native American reserved rights and public trust issues

generally receive more attention than in the northern border states. As

they have along the northern US border, water allocations and the legal

regimes governing those allocations are evolving in response to growing urban populations, changing economic and social conditions, and

increased recognition of environmental values.

The southern boundary states use prior appropriation systems for

allocating surface water. The Texas system also protects existing riparian rights, as long as those rights were asserted during stream adjudication proceedings. And, although California generally relies on a prior

appropriation system, it also recognizes riparian rights. Key features

of the prior appropriation and riparian doctrines of water rights are

described in the sections that follow.

In addition to state law systems, surface water allocation along the

northern and southern US border areas is affected by several interstate

compacts applicable to rivers that flow through one or more states

(Colorado, Río Grande and the Great Lakes). The relevant provisions of

these compacts are discussed in section 2.2.2.

2.2.1.1. Prior Appropriation

The doctrine of prior appropriation gives secure title to those who

undertook to develop water resources for beneficial use by awarding

UNITED STATES’ DOMESTIC FRAMEWORK 47

20. D. Getches, Water Law in a Nutshell, St. Paul, MN: West Publishing, 1990; and C.J.

Meyers et al., Water Resource Management, Mineola, NY: Foundation Press, 1988.
water rights on a “first in time, first in right” basis. Thus, in times of

shortages, which can be frequent in some areas of the arid west, the

rights of senior appropriators take precedence over those of junior

appropriators—that is, the senior’s rights must be fully satisfied before

the junior appropriator receives any water. Permits under prior appropriation systems generally specify the amount of water that may be

diverted, for what purpose it may be used and where it may be used.

Diversions outside of the basin of origin are generally not permitted or

are only permitted under certain conditions.

Rights under prior appropriation are generally secured through a

permit process. New permits are granted only if there is unappropriated

water in the watercourse. Most states have an administrative or judicial

adjudication process whereby existing rights are quantified on a

basin-by-basin basis.21 These adjudications are necessary to establish

certainty of title, facilitate water allocation decisions, allow for water

resource planning to meet future needs and to quantify federal and

Native American reserved rights. Many rivers in western US states are

already fully appropriated or overappropriated (the rights on paper to

water withdrawals exceed the actual supply).22

Beneficial uses, which are usually defined by state statute, originally included uses tied to economic development or basic needs:

domestic, municipal, industrial, irrigation, mining and the like. In recent

decades, however, use of water to preserve fish and wildlife habitat,

sustain recreational activities or otherwise maintain instream flows

are often—but not universally—recognized as beneficial uses.23 Earlier

interpretation of the prior appropriation doctrine did not recognize such

uses as beneficial because they did not involve diversions of water.

Wasting water is not considered a beneficial use. Most states and

courts, however, have been reluctant to deny rights to water on the

grounds of waste. Nevertheless, as water conservation gains higher priority and judicial interpretation of state statutes defining beneficial use

48 INLAND WATER MANAGEMENT REPORT

21. An excellent survey of adjudication systems in western US states can be found in

A.L. Krogh, “Water Right Adjudications in the Western States: Procedures, Constitutionality, Problems and Solutions”, (1995) 30 Land and Water Law Review 35.

22. R.D. Benson, “A Watershed Issue: The Role of Stream Flow Protection in Northwest River Basin Management”, (1996) 26(1) Environmental Law 175.

23. The literature on recognition of instream flows and other environmental uses of

water in western US states is extensive. See L.J. MacDonnell and T. Rice, ed.,

Instream Flow Protection in the West, Boulder: University of Colorado, Natural

Resources Law Center, 1993.
responds to changing conditions, it is likely that waste will be less tolerated.24

To preserve a water right under the prior appropriation doctrine,

the water right holder must actually use the water. Many analysts have

concluded that this “use it or lose it” aspect of the prior appropriation

doctrine can hinder water conservation efforts. A water right holder

may refrain from implementing conservation measures if he believes he

may lose the right to the unused water. Some states have begun to adjust

their statutory schemes to remove this potential barrier to conservation.

Another key feature of the prior appropriation doctrine is the “no

injury” rule. This principle prevents transfers of water rights that would

adversely affect any downstream appropriator, whether junior or

senior. Thus, a transfer from one use to another that would increase

water consumption, thereby reducing return flows to the watershed,

may be prohibited if it would adversely affect downstream users. Minimum instream flow requirements in some states may also limit the

possibility of transfers. Most state statutes provide for notice and opportunity for hearing for potentially affected persons before a transfer

can be approved. Some states, like Alaska, require that any proposed

water-rights transfer be reviewed to determine if it is in the public interest. In some western states, special laws have been enacted to facilitate

water transfers and water-rights “banking,” especially during times of

drought.

A final feature of some prior appropriation systems is that municipal water use may, in times of shortages, take precedence over other

uses, particularly irrigation, even if the irrigation rights are senior. In

most cases, however, compensation must be paid to those whose rights

cannot be satisfied.

As this discussion has suggested, in the western US states the prior

appropriation doctrine has undergone significant changes over last two

to three decades in response to growing urban populations and changing economic and social conditions.25 It is likely that this evolution will

continue as (1) more watercourses become fully appropriated; (2) conservation and water marketing take central stage as mechanisms for

UNITED STATES’ DOMESTIC FRAMEWORK 49

24. D. Getches, “Changing the River’s Course: Western Water Policy Reform”, (1996)

26(1) Environmental Law 157.

25. C.F. Wilkinson, “Western Water Law in Transition”, (1985) 59 University of Colorado

Law Review 551; and N. Johnson and C.T. DuMars, “A Survey of the Evolution

of Western Water Law in Response to Changing Economic and Public Interest

Demands”, (1989) 29 Natural Resources Journal 347.
meeting new water demands; and (3) economic values of instream uses

are recognized and quantified.

Another factor that may influence the regulation of water rights is

the development of case law and statutory principles regarding constitutional and “regulatory” takings. Some water rights holders in western

states are increasingly objecting to regulation of their water rights on the

grounds that such actions can constitute a taking of private property for

which they are entitled to compensation.26 Most of the constitutional

takings claims have failed, but interest groups continue to pressure

western states to enact legislation requiring compensation for regulatory takings that do not meet the constitutional standard.

2.2.1.2 Riparian Rights

The riparian system forms the basis for surface water rights

management and allocation in those states where water resources are

relatively more abundant than in the more arid western states. Riparian-based systems are based on the common law and are generally less

rigorous than those based on the prior appropriation doctrine.

Riparian water rights pertain to land located alongside a watercourse (so-called riparian land). Under the common law riparian

doctrine, water use was limited to the riparian land itself. Under

most permit systems, however, riparian rights can be exercised on

nonriparian land and nonriparians can obtain water rights. The riparian

doctrine is based on a principle of reasonable use: the amount of water

used must be reasonable in relation to other riparian uses of the watercourse. It is also based on the principle that water must not be spoiled for

downstream use. Under common law, riparians have a right to clean

water, with a tort remedy against upstream pollution.

Riparian rights under common law are not lost because of nonuse.

Most permit systems, however, provide for cancellation of unused

rights. In times of shortage, allocation priorities under a riparian system

are based on the reasonable use principle rather than on seniority of

rights. Some permit systems also provide for preferences to be given to

certain uses, both in issuing new permits and in allocations during shortages. The issuance of permits in most riparian states is based on statutory schemes that require the permitting agency to consider the type of

50 INLAND WATER MANAGEMENT REPORT

26. B.H. Thompson Jr., “Takings and Water Rights”, in Water Law: Trends, Policies and

Practice, K.M. Carr and J.D. Crammond, ed., Chicago: American Bar Association,

1995.
use, the condition of the watercourse and the effect of the proposed use

on other water users and the public.

2.2.1.3 Groundwater

The northern US border states vary in the way they manage

groundwater rights, which is a matter of state jurisdiction. Most of the

states manage groundwater separately from surface water—a perpetual

problem in water resources management given pervasive groundwater/surface water interactions. The US states along the western portion

of the US-Canada border (Alaska, Washington, Idaho, Montana and

North Dakota) use a prior appropriation/permit system for groundwater management.27 These systems are similar to those for surface water

rights, with permits specifying the rate of withdrawal, well location, and

place and purpose of use. Allocations in times of shortage are based on

seniority of rights.

The rest of the states generally rely on a “reasonable use” doctrine,

whether adopted through statute or developed through court decisions.

This doctrine entitles overlying landowners to make reasonable use of

groundwater pumped from beneath their property, with some limited

liability to adversely affected neighboring landowners for unreasonable

use. Michigan, Ohio and Wisconsin (which depends very heavily on

groundwater) have adopted this doctrine through court decisions.28

Minnesota, which also depends heavily on groundwater, has adopted

the doctrine through a statute and has implemented a groundwater permitting program. Pumping of groundwater by the city of Chicago and

its suburbs is so extensive that the water being drawn out through wells

actually comes from Lake Michigan and is thus included in Chicago’s

surface water allocation. As noted, efforts to manage groundwater

quantity and quality are inadequate, constituting a significant gap in the

legal framework for managing transboundary water in the Great Lakes

and eastern US-Canada border region.29

UNITED STATES’ DOMESTIC FRAMEWORK 51

27. J.D. Aiken, “Well Interference and Groundwater Mining: The Legal Framework”,

in Proceedings of Conference on Groundwater Law, Hydrology and Policy in the 1990s,

Boulder: University of Colorado School of Law, 1992.

28. A.D. Tarbock and S.L. Deutsch, “Foreword to Symposium on Prevention of

Groundwater Contamination in the Great Lakes Region”, (1989) 65 Chicago-Kent

Law Review 345.

29. Tarlock and Deutsch (ibid.) observe that groundwater resources in the Great Lakes

region were historically treated as inexhaustible and consumption has not been

limited through regulatory measures. They also note that many crucial hydrological connections between surface and groundwater are poorly understood. They

advocate better definition of groundwater property rights to foster conservation of

the resource.
Legal regimes for allocating groundwater also vary substantially

among southern US border states. Texas has no statutory regulation of

groundwater pumping, relying instead on the common law “rule of capture” or absolute ownership.30 Recent drought conditions and a major

conflict over use of the Edwards Aquifer in the central Texas region,

however, may force the state to adopt some sort of statewide groundwater regulatory system over the next few years. New Mexico has a prior

appropriation permit system for groundwater management. Arizona

has a groundwater withdrawal permitting process for designated active

management areas (AMAs). California has a combination of correlative

rights31 for overlying landowners and an appropriation system for

nonoverlying landowners.

2.2.2 Interstate River Basin Compacts Commissions

Interstate and river basin commissions administer water compact

agreements between state governments. Compacts, an outgrowth of the

recognition that water resource planning and development is central to

the interests of state and federal governments, are formal agreements

between state governments to address water resource issues relevant to

the particular circumstances of river basins. Under the US Constitution,

interstate agreements must receive the approval of the federal government. Interstate commissions are established by interstate compact to

administer the terms of the agreements.

In general, interstate and river basin commissions:

• coordinate the water management activities of the signatory

parties;

• serve as a mechanism for resolving disputes between

interested parties;

• provide a forum for observation and communication among

states, federal agencies, tribal governments and other parties

interested in water resource management;

• recommend priorities for data collection and for the

investigation, planning and construction of water projects;

and

52 INLAND WATER MANAGEMENT REPORT

30. Under this rule, an overlying landowner can pump as much groundwater as he

cares to, virtually without any liability for damage to adjacent landowners who

might be adversely affected.

31. Under a correlative rights system, pro rata sharing goes into effect among pumpers

during times of shortage.
• undertake the development of comprehensive plans for water

resource management.

The three interstate river basin commissions with transboundary

water management implications are described in the sections that follow.

2.2.2.1 Colorado River Commission

The Colorado River has been described as the most closely regulated and controlled stream in the United States.32 The “Law of the

River” as applied to the Colorado River is a complex mosaic of federal

and state statutes, interstate compacts, court decisions and water delivery contracts that have been established over time (see section 4.6.2.1 for

a detailed discussion of the Law of the River). The Colorado River Commission is responsible for administering the Law of the River. It is composed of two representatives of each of the signatory states to the

Colorado River Compact.

The Colorado River Compact, signed by each of the seven Colorado River basin states in 1922, serves as the cornerstone of the Law

of the River.33 The compact divides the Colorado River basin into

“upper” (Colorado, Wyoming, Utah, New Mexico) and “lower” (Arizona, Nevada, California) basins, with the dividing line drawn at Lee’s

Ferry, Arizona. The water of the river is apportioned roughly in half

(1922 flow) at 9,250 Mm3 (7.5 MAF) per year per basin. Apportionment

among lower basin states was determined by the Boulder Canyon Project

Act of 1928 and affirmed by the US Supreme Court in Arizona v.California

(1963). The Court decree also confirmed the apportionment of water

(known as present perfect rights) to Indian reservations, national recreation areas and wildlife refuges. The upper basin is apportioned in

accordance with the 1948 Upper Colorado River Basin Compact.

A provision of the Colorado River Compact recognizes the right of

Mexico to Colorado River waters. This right was elaborated in a bilateral

treaty signed in 1944 (see chapter 4). Other bilateral agreements have

been signed since to deal with increasing salinity problems in Mexico’s

portion of Colorado River water.

UNITED STATES’ DOMESTIC FRAMEWORK 53

32. M. Nathanson, Updating the Hoover Dam Documents, Denver: US Department of the

Interior, Bureau of Reclamation, 1978.

33. The compact was ratified by all the Colorado River basin states in 1923, except Arizona which did not ratify until 1944. Congress gave its consent to the compact in

1928 with the passage of the Boulder Canyon Project Act, authorizing the construction of the Hoover Dam near Las Vegas, NV.
2.2.2.2 Río Grande Commission

The Río Grande Compact, among Colorado, New Mexico and

Texas, was ratified in 1939.34 The compact was designed to stabilize the

water allocation pattern in the upper Río Grande and establish the various annual water delivery obligations of the signatory parties. The Río

Grande Commission is composed of a federal chairperson appointed by

the president and three voting members from the states.

The commission meets annually to review compliance with the

compact over the previous year, to hear reports from federal water management agencies, and to consider water management decisions that

have interstate implications. It issues a report to the governors of Colorado, New Mexico and Texas on the streamflow of the Río Grande at various gauging stations, and water storage in the system of reservoirs that

make up the Río Grande Project. The data contained in the annual

reports of the Río Grande Commission are provided by the relevant state

agencies, the Bureau of Reclamation, the US Army Corps of Engineers,

the US Geologic Survey and the Bureau of Indian Affairs.

The Bureau of Reclamation and the Corps of Engineers are bound

by federal statute to ensure that their actions are consistent with the provisions of the compact. The Bureau of Indian Affairs is involved primarily to ensure that Pueblo Indian reservations receive their allotted share

of Río Grande waters.

2.2.2.3 Great Lakes Commission

Established in 1955 by the Great Lakes Basin Compact, the Great

Lakes Commission comprises appointed officials from Illinois, Indiana,

Michigan, Minnesota, New York, Ohio, Pennsylvania and Wisconsin.35

The commission was granted congressional consent in 1968. The commission’s history includes informal yet long-standing relationships with

Canada’s federal and provincial governments. Under the Great Lakes

Compact, the Great Lakes Commission is responsible for:

• promoting the orderly, integrated and comprehensive use and

conservation of water resources;

54 INLAND WATER MANAGEMENT REPORT

34. This section is based on the Report of the Río Grande Compact Commission, 1994.

35. This section is based on the Great Lakes Commission 1995 Annual Report, 9(1) January/February 1996, Great Lakes Commission, Ann Arbor, MI.
• planning for the welfare and development of water resources

as a whole as well as the particular needs of specific areas

within the Great Lakes basin; and

• advising in securing and maintaining a proper balance among

the various uses of water resources in the basin.

Other activities of the Great Lakes Commission include advising

federal, state and binational agencies; providing testimony before the

US Congress and Canadian Parliament on Great Lakes issues; fostering

cooperation and consensus among Great Lakes states on policy and

research priorities; and promoting linkages among researchers, policy

makers and resource managers.

Many groups have observer status at the Great Lakes Commission.

Federal observers include representatives of the US Geological Survey,

US Army Corps of Engineers, National Oceanic and Atmospheric

Administration, US Fish and Wildlife Service, US National Park Service,

Environmental Protection Agency, Natural Resources Conservation

Service, US Coast Guard, and the St. Lawrence Seaway Development

Corporation. Canadian observers include representatives of the federal

government as well as the provinces of Ontario and Quebec. Regional

observers include representatives of the Council of Great Lakes Governors and of the Great Lakes Sea Grant Network. Other observers represent the International Joint Commission and the Chippewa/Ottawa

Treaty Fishery Management Authority. According to the commission’s

work plan, regional coordination is a major program goal for strengthening Great Lakes management.

2.3 Native American Governments

Of the more than 500 federally recognized Native American tribes

in the United States, more than 300 are in the lower 48 states. In the Colorado River basin alone, nearly 300,000 Native Americans are living on 29

reservations covering more than 11.3 million ha (28 million acres).36

Many of the tribal governments are playing an increasingly significant

role in water management issues. Their growing role is based on federal

reserved water rights and the federal Clean Water Act.

Native American water rights have been established by law, beginning with a US Supreme Court decision in 1908 that protected the water

UNITED STATES’ DOMESTIC FRAMEWORK 55

36. G. Weatherford, M. Wallace and L.H. Storey, Leasing Indian Water: Choices in the Colorado River Basin, Washington, DC: Conservation Foundation, 1988.
rights of Indian reservations. This decision is the basis for the Winters

Doctrine, which quantifies tribal rights in terms of the amount of water

necessary to irrigate the “practicably irrigable acreage” on the various

reservations. The right to this amount of water is prior to nearly all state

appropriated rights, meaning that reservations in the southwestern

United States, for example, would have prior rights to most of the available supply if the doctrine were applied uniformly.37

Given the extent of these rights, it is not surprising that, in the 1980s

alone, more than four dozen major Native American water rights

disputes were winding their way through state and federal courtrooms

and administrative hearings throughout the United States.38 Even if

the existing water rights claims are settled, the utilization of allocated

waters is likely to come under scrutiny. In some instances, off-reservation water marketing, allowable in principle under a recent Bureau of

Reclamation ruling, may encourage water utilization in less-efficient,

low-value applications, with possibly adverse environmental effects.39

The authority of tribal governments to regulate the environment is

based on the retained sovereignty of Native American peoples. Recent

amendments to the Clean Water Act state explicitly that Indian reservations are to be treated as states for certain purposes related to water quality. Thus, at least 77 of the tribes in the lower 48 states issue water quality

standards, undertake point source management and develop instream

flow programs.40 Tribal governments have the potential to become

important players in transboundary water management. Generally, the

result of their involvement has been a heightening of standards applicable to many transboundary waterways. Reservations vary widely, however, in regulatory capacity in terms of both funding and staffing.41

56 INLAND WATER MANAGEMENT REPORT

37. P. Sly, Reserved Water Rights Settlement Manual, Washington, DC: Island Press, 1988,

5. The Supreme Court opinion is that of Winters v. US, 207 US 564 (1908).

38. L. Burton, American Indian Water Rights and the Limits of the Law, Lawrence: University of Kansas Press, 1991, 2.

39. J. Morrison, The Sustainable Use of Water in the Lower Colorado River Basin, Oakland:

Pacific Institute, 1996, 58-59.

40. Gover, Stetson, and Williams, “Survey of Tribal Actions to Protect Water Quality

and the Implementation of Tribal Amendments to the Clean Water Act”, in Report

to the National Indian Policy Center, Albuquerque: National Indian Policy Center,

1994, 82-83.

41. L. Jones, “Reservation Environmental Issues: Problems in Federal and Tribal Governmental Responses: 1989-1991”, unpublished manuscript, Department of Political Science, Colorado State University, Fort Collins, 1993, 21.
CHAPTER 3

Canada’s Domestic Framework

for Transboundary Water Management

3.1 Introduction: The Constitutional Basis for Transboundary

Water Management in Canada

The framework for transboundary water management in Canada

is a product of constitutional provisions, federal and provincial statutes,

federal water policy, and intergovernmental institutional arrangements. The legal foundation for this framework is the Constitution Act of

1867, which establishes the division of powers between the federal government and the provinces.42 Since no single authority is in charge of

water management, control devolves to a variety of specific and general

powers of each order of government.

The provinces have primary responsibility for land and resource

management—including water management—within their respective

boundaries.43 This authority is based on provincial ownership of most

public land and resources44 and on the provinces’ legislative authority

over “property and civil rights,” “local works and undertakings,” “all

matters of a merely local and private nature” and “municipal institutions” (Constitution Act, Section 92). Provincial legislative authority over

the “development, conservation and management of sites and facilities

in the province for the generation and production of electrical energy”

was explicitly established through constitutional amendment in 1982

(Section 92A).

57

42. The authoritative text on Canadian constitutional law is P.W. Hogg, Constitutional

Law of Canada, 4th ed., Scarborough, ON: Carswell, 1997. Constitutional issues

relating to transboundary water management are discussed in more detail

in S.A. Kennett, Managing Interjurisdictional Waters in Canada: A Constitutional

Analysis, Calgary: Canadian Institute of Resources Law, 1991; and J.O. Saunders,

Interjurisdictional Issues in Canadian Water Management, Calgary: Canadian Institute

of Resources Law, 1988.

43. In the northern territories, the federal government exercises province-like resource

management authority. Northern water management is discussed in section 2.2.8.

44. Constitution Act, 1867, Section 109; and Natural Resources Transfer Agreements,

Constitution Act, 1930.
The provinces thus have considerable authority, as owners and

legislators, to manage their water resources and regulate the principal

land-based activities, ranging from forestry operations to industrial and

municipal facilities, that affect water quality and consumption. Where

watersheds cross provincial, territorial or international boundaries, the

provinces’ water management regimes and their regulation of individual projects (such as dams and diversions, pulp and paper mills, and

municipal discharges) have important direct effects on transboundary

waters. The provincial role in transboundary water management is,

however, subject to two important legal limitations. First, the territorial

limitation on provincial powers means that provinces cannot regulate

water uses occurring beyond their boundaries. Second, provincial water

management is subject to the legislative authority of the federal government, described below, which is accorded constitutional primacy by the

principle of federal paramountcy.

Despite the provinces’ position as the primary resource managers,

the federal government occupies a very strong constitutional position on

transboundary waters by virtue of specific oversight exercised by several ministries and its general authority to pass laws for the “peace,

order, and good government of Canada” (Constitution Act, Section 91).

In addition, the federal government has a proprietary basis for its role as

water resource manager on federal lands (for example, national parks)

and in the northern territories.

Specific ministries exercise federal authority over “sea coast and

inland fisheries” and “navigation and shipping.” Federal legislation

under the former protects fish and fish habitat, while the latter supports

regulation of projects and activities, such as dams and dumping, that

may affect navigable waters. It should be noted, however, that neither

the navigation power nor the more broadly worded federal power over

“trade and commerce” have been interpreted by the courts as permitting

expansive legislative authority along the lines exercised by the US government under the interstate commerce clause. Federal jurisdiction in

relation to “Indians and lands reserved for Indians,” taxation, federal

public property, and interprovincial works and undertakings could

also support a role in transboundary water management under certain

circumstances. Moreover, the federal government’s “spending

power”—which enables it to establish and fund programs in areas of

provincial jurisdiction—could serve as a basis for federal leverage in

water management through joint funding arrangements and conditional grants to the provinces.

58 INLAND WATER MANAGEMENT REPORT
The federal government’s power to implement treaties (Constitution Act, Section 132) is of particular importance for transboundary

waters, because it gives the federal government authority to implement

the Boundary Waters Treaty (1909) between Canada and the United

States. This power is, however, applicable only to “Empire” treaties,

signed before Canada attained full independence in international

relations. It is thus doubtful whether the federal government could unilaterally implement more recent treaties affecting areas of provincial

jurisdiction.

On the other hand, the provinces themselves may not extend

management beyond their borders, nor may they unilaterally regulate

shared-jurisdiction waters. The area beyond provincial jurisdiction falls

precisely into the federal domain. For example, in the spring of 1998 the

province of Ontario issued a water extraction permit for the bulk export

by tanker of water from Lake Superior (the Nova project). The Canadian

federal government and the US state and federal governments all

expressed strong opposition. In response, not only did Ontario respond

by revoking the permit, but it also appealed to the federal government to

act within its jurisdiction to prevent bulk water exports. Thus, in 1999,

the federal government launched a strategy to prohibit the bulk removal

of water, including for export, from Canadian watersheds.

The federal government’s criminal law power has emerged as

an important general basis for federal environmental regulation. The

Supreme Court of Canada recently upheld federal legislation prohibiting the dumping of PCBs into waterways as a valid exercise of this

power.45 The case went beyond earlier decisions upholding federal environmental regulations designed to protect public health under the criminal law power and relied instead on a very broad definition of criminal

law (requiring only a prohibition enforced by a penal sanction) to support the legislation at issue. The resulting scope for federal environmental regulation, including water management, is untested but potentially

significant.

Finally, the federal authority to enact laws for “peace, order, and

good government” (POGG) is directly relevant to transboundary water

management. In 1997, the “national concern” facet of POGG was applied

by the Supreme Court of Canada in R. v. Crown Zellerbach to uphold federal legislation prohibiting ocean dumping in intraprovincial waters.46

CANADA’S DOMESTIC FRAMEWORK 59

45. R. v. Hydro Quebec (1997), 151 D.L.R. (4th) 32 (S.C.C.).

46. R. v. Crown Zellerbach, [1988] 1 S.C.R. 401.
This case set out a three-element test for the “national concern” branch

of POGG, specifying that it applies (1) to matters that did not exist at the

time of Confederation or have since attained national significance; (2) to

matters that have a singleness, distinctiveness and indivisibility that distinguish them from matters of provincial concern and ensure an impact

on provincial jurisdiction consistent with the division of powers; and (3)

in cases where a provincial failure to deal with intraprovincial aspects of

an issue have effects on extraprovincial issues. The third element, called

the “provincial inability test,” underlines the particular relevance of

POGG to federal regulation of transboundary waters.47

The Supreme Court of Canada, unlike the US Supreme Court, does

not have original jurisdiction under the Constitution in relation to interprovincial disputes. Thus the Canadian Court has not played a significant role in transboundary apportionment issues or in other aspects

of transboundary water management. Canadian governments have

generally avoided resorting to the courts to resolve disputes over

transboundary waters.

In summary, the Constitution confers on the provinces a predominant role in water management generally, while giving the federal

government significant water-related powers, some of which are

particularly suited to managing interprovincial and international

transboundary waters. As the rest of this chapter will show, however,

the Constitution reveals relatively little about transboundary water

management in practice. The operational framework for transboundary

water management, where one exists, is established through statutes

and, more important, through informal administrative arrangements

and formal—but generally nonstatutory—intergovernmental agreements. From a constitutional perspective, the story is one of unexercised

federal powers.

3.2 The Legal Framework at the Federal Level

All federal water law is concerned with transboundary water management in the sense that federal legislation is, in principle, applicable

throughout the country without regard to provincial or territorial

boundaries.48 Yet only a few elements of federal water law deal

60 INLAND WATER MANAGEMENT REPORT

47. See, Kennett, Managing Interjurisdictional Waters in Canada, 191-227, n. 42.

48. As discussed in section 3.3.2, the applicability of federal legislation in practice may

differ among provinces as a result of formal delegation of powers, equivalency

agreements, informal administrative arrangements and discretionary enforcement

policy.
expressly with transboundary water management. The rest of this

section begins by reviewing these transboundary provisions and then

turns to other legislation relevant to federal water management.

3.2.1 Canada Water Act

The Canada Water Act,49 passed in 1970, was the federal government’s first statutory attempt to adopt a comprehensive and focused

approach to freshwater management and to promote federal- provincial

cooperation on related initiatives. With its emphasis on water resource

management broadly defined, the act has a de facto transboundary orientation, because most of Canada’s major river basins cross provincial, territorial or international boundaries. Furthermore, the act sets out a basic

framework for transboundary water management in that it provides

both for intergovernmental management arrangements and for unilateral federal action on certain transboundary issues. In practice, however, the Canada Water Act has never been fully implemented and has

had a relatively limited impact on transboundary water management in

Canada.

Parts I and II of the act are relevant to transboundary water

management. Part I, “Comprehensive Water Resource Management,”

authorizes the federal government to enter into consultative arrangements with the provinces and to conclude federal-provincial agreements for programs relating to any waters where there is a significant

national interest in water resource management. Specified subjects for

agreement include establishing water inventories, collecting data, conducting research, formulating comprehensive management plans, and

designing water management projects. Joint commissions or boards

may be established to oversee these programs. The federal government

may undertake such programs unilaterally for those waters over which

it has full jurisdiction. For interjurisdictional, international and boundary waters, unilateral federal action is limited to planning and project

design where “there is a significant national interest in the water

resource management” of the waters in question and where “all reasonable efforts” have been made to reach agreement with the provincial

governments whose interests are affected (Section 6). Part I of the act has

resulted in formal agreements and informal work-sharing arrangements for intergovernmental cooperation—but not necessarily

transboundary water management—in the form of water resource surveys, studies and other programs.

CANADA’S DOMESTIC FRAMEWORK 61

49. R.S.C. 1985, c. C-11.
Part II of the act, “Water Quality Management,” provides for

federal-provincial agreements to designate water quality management

areas where water quality management has become a matter of urgent

national concern. The federal government is authorized to take unilateral action in relation to the water quality management of interjurisdictional waters if, despite “all reasonable efforts,” no agreement

can be reached with the affected province(s) (Section 13). Although unilateral federal action is restricted to interjurisdictional waters where

water quality management has become a matter of “urgent national concern,” the definition of interjurisdictional waters is broad enough to

include water bodies wholly within a province.50 While this portion of

the act could enable significant federal-provincial cooperation on

transboundary water quality problems and could also support unilateral federal measures in the transboundary context, it has not been

implemented to date.

Should the federal government seek a stronger, even unilateral,

role in transboundary water management, the Canada Water Act provides some of the necessary legal tools. At present, however, there is no

indication that the act will be used in this way.

3.2.2 International River Improvements Act

The International River Improvements Act51 is directly related to

transboundary water management, because it provides an explicit statutory basis for federal regulation of dams, diversions and other developments that affect the flow of rivers crossing the US-Canada border. The

act was originally passed in 1955 to allow the federal government to prevent the construction of a major dam on the Columbia River by the province of British Columbia. The objective was to permit a larger scale,

coordinated effort to develop the water resources of the basin. More

recently, the act received attention when it served as a trigger for the federal environmental assessment process.52

The act requires a license for the construction, operation or maintenance of certain international river improvements. An “international

62 INLAND WATER MANAGEMENT REPORT

50. The term interjurisdictional watersis defined in Section 2(1) of the act as “any waters,

whether international, boundary, or otherwise, that, whether wholly situated in a

province or not, significantly affect the quantity or quality of waters outside the

province.”

51. R.S.C. 1985, c. I-20.

52. The act provided the basis for litigation over federal environmental assessment

obligations in relation to the Rafferty-Alameda Dam project in Saskatchewan. See

Canadian Wildlife Federation v. Canada (Minister of the Environment) (1989), 4 C.E.L.R.

(N.S.) 1 (F.C.A.).
river improvement” is defined as “a dam, obstruction, canal, reservoir

or other work the purpose or effect of which is (a) to increase, decrease or

alter the natural flow of an international river, and (b) to interfere with,

alter or affect the actual or potential use of the international river outside

Canada” (Section 2). The act applies to any waters in Canada that flow

across the international boundary into the United States, but it does not

apply to projects authorized by an act of Parliament, situated within

boundary waters as defined in the Boundary Waters Treaty, or constructed or operated solely for domestic, sanitary or irrigation purposes

or other similar consumptive uses.

3.2.3 Fisheries Act

The Fisheries Act53 is a powerful legal tool for the management of

fish stocks and the protection of fish habitat. Although it does not focus

expressly on transboundary waters, it provides the basis for a federal

role in the management of Canadian fisheries waters. Section 35(1) of the

act makes it an offense to “carry on any work or undertaking that results

in the harmful alteration, disruption or destruction of fish habitat” and

Section 36(3) prohibits the deposit of deleterious substances into Canadian fisheries waters or at any other location where these substances

may enter such waters. The activities specified in these sections are not

offences, however, if carried on pursuant to federal regulatory approvals. The Supreme Court of Canada has interpreted these provisions as

authorizing a broad range of measures to protect water quality, provided that these measures have a clear nexus with fish and fish habitat.54

However, despite its broad applicability and clear prohibitions, the Fisheries Act is not meant to provide legislative authority for a full-fledged

water management scheme.

Effluent regulations passed under the act have been criticized as

weak, and the federal government’s enforcement policy has been characterized as “inconsistent and sporadic.55” Furthermore, as discussed in

section 3.3.2, enforcement of the fish habitat protection and pollution

prevention provisions of the act has generally been assumed by the

inland provinces, which have often preferred to use their own environmental legislation instead of the Fisheries Act when prosecuting environmental offenses.

CANADA’S DOMESTIC FRAMEWORK 63

53. R.S.C. 1985, c. F-14.

54. Fowler v. R., [1980] 2 S.C.R. 213; and Northwest Falling Contractors Ltd. v. R., [1980] 2

S.C.R. 292.

55. D. Estrin and J. Swaigen, Environment on Trial: A Guide to Ontario Environmental Law

and Policy, 3rd ed., Toronto: Emond Montgomery, 1993, 523.
3.2.4 Navigable Waters Protection Act

Under the Navigable Waters Protection Act,56 the minister of Transport must approve the construction of any structure such as a bridge or

dam that might affect navigable waters. The term navigable has been

broadly defined to include relatively small streams and bodies of water

capable of floating a canoe or logs. The act also prohibits the dumping of

specified substances into water in a way that might interfere with navigation. These provisions create some scope for federal control over

dumping, provided a nexus exists between the prohibition and navigation. Although this act is not concerned explicitly with transboundary

waters, it does authorize federal involvement in aspects of the management of a broad range of Canada’s waters, transboundary and other.

Like the International River Improvements Act, it is a trigger for the federal

environmental assessment process.

3.2.5 Canada Shipping Act

The Canada Shipping Act57 applies generally to Canadian ships

everywhere and to foreign ships in Canadian waters and in Canada’s

Exclusive Economic Zone within the limits imposed by international

law. Part XV of the act and the regulations pursuant to this part make

it an offence to discharge prescribed pollutants, which are broadly

defined.58 The act also specifies various preventive, control and remediation measures. Because much of the shipping regulated by theCanada

Shipping Act occurs in the Great Lakes and in coastal waters close to

boundaries with the United States and international waters, this act provides a federal instrument for addressing certain water pollution issues

in the transboundary context.

3.2.6 Canadian Environmental Protection Act

The Canadian Environmental Protection Act59 (CEPA) is intended to

protect the environment and human health by regulating the use of toxic

and dangerous substances. CEPA is not directed specifically at water

resource management, but it does apply to discharges of prescribed substances into bodies of water. In laying the groundwork for a constitutional defense of this legislation under the “peace, order, and good

64 INLAND WATER MANAGEMENT REPORT

56. R.S.C. 1985, c. N-22.

57. R.S.C. 1985, c. S-9.

58. The pollution control regime established under this act is described in Estrin and

Swaigen, Environment on Trial, 525-526, n. 14.

59. R.S.C. 1985, c. 16 (4th Supp.), first enacted as S.C. 1988, c. 22.
government” clause,60 the preamble to CEPA notes that “the presence of

toxic substances in the environment is a matter of national concern” and

that “toxic substances, once introduced into the environment, cannot

always be contained within geographic boundaries.” The preamble also

speaks of federal leadership through the establishment of national environmental quality objectives and notes that “Canada must be able to fulfil its international obligations in respect of the environment.” These

provisions reveal a clear connection between the federal role under

CEPA and transboundary environmental issues.

CEPA adopts an ecosystem approach to regulating toxic substances, focusing on controlling releases throughout the environment

and promoting life cycle management. The act creates a complex regulatory process for the designation of toxic substances. National standards

may be established, but the act also states that federal regulations will

not apply in provinces that develop equivalent standards and sign

“equivalency agreements” with the federal government.61 Provisions

regulating “cleaning agents” and “nutrients,” formerly in the Canada

Water Act, are now included in Part III of CEPA. Ocean dumping, the

subject of the landmark R. v. Crown Zellerbach decision on federal environmental powers, is regulated under Part VI. Principles for applying

CEPA are set out in the Enforcement and Compliance Policy.62

Although CEPA deals explicitly with “International Air Pollution”

in Part V, it does not provide equivalent treatment of transboundary or

international water pollution. This deficiency was discussed in a 1995

review of CEPA by the House of Commons Standing Committee on

Environment and Sustainable Development. The committee recommended amendments to CEPA “authorizing the federal government to

prevent transboundary water pollution and to ensure that Canada complies with international agreements relating to transboundary water

pollution.63” In its response to the committee’s report, the federal government stated that it “proposes to include, in a renewed CEPA, provisions to prevent transboundary water pollution, to mirror and respect

the reciprocity provisions of the US Clean Water Act, and to enable Canada to continue to comply with international agreements, to which it is a

CANADA’S DOMESTIC FRAMEWORK 65

60. Interestingly, as noted in section 3.1, the Supreme Court of Canada in R. v. Hydro

Quebec recently upheld key provisions of CEPA under the criminal law power.

61. CEPA, Section 34(5), (6). See, for example, An Agreement on the Equivalency of Federal

and Alberta Regulations for the Control of Toxic Substances in Alberta (1st June 1994).

62. Environment Canada, Enforcement and Compliance Policy, 1992.

63. House of Commons Standing Committee on Environment and Sustainable Development, It’s About Our Health! Towards Pollution Prevention, June 1995, 118.
party or may become a party, relating to transboundary water pollution.64”

As of the fall of 1998, CEPA had not been amended to include these

measures.65 Nonetheless, CEPA remains an important federal instrument for addressing specific pollution issues in transboundary and

other contexts.66

3.2.7 Canadian Environmental Assessment Act

The Canadian Environmental Assessment Act67 (CEAA) requires the

federal government to consider environmental consequences when

making decisions regarding specified projects. The process is, however,

entirely advisory in that the federal “responsible authorities” retain

authority to make final decisions about whether or not to authorize the

projects in question.

Although CEAA does not establish a resource management

regime, it is relevant to the federal role in transboundary water management for two reasons. First, CEAA has an explicit transboundary focus.68

One purpose of the act is “to ensure that projects that are to be carried out

in Canada or on federal lands do not cause significant adverse environmental effects outside the jurisdictions in which the projects are carried

out” (Section 4(c)). Sections 46-53 contain specific provisions dealing

with projects that have interprovincial and international effects and

effects on federal lands.69 Although these sections focus on the procedure for transboundary environmental assessment, they also authorize

the federal minister of the environment to order a proponent not to proceed with a project having potential transboundary effects until the

environmental assessment is completed and the minister is satisfied that

these effects have been appropriately dealt with (Sections 50, 51).

66 INLAND WATER MANAGEMENT REPORT

64. Environment Canada, CEPA Review: The Government Response, Ottawa: Minister of

Supply and Services Canada, 1995, 57.

65. Provisions addressing international water pollution are, however, contained in

Division 7 of the proposed Canadian Environmental Protection Act, 1998 (Bill C-32),

Second Reading and referred to the Standing Committee on Environment and Sustainable Development, 28 April 1998.

66. For a more extensive discussion of CEPA and transboundary issues, see Steven A.

Kennett, “Boundary Issues and Canadian Environmental Legislation”, in Environmental Policy: Transnational Issues and National Trends, L.K. Caldwell and R.V. Bartlett, ed., Westport, CT: Quorum Books, 1997, 138-143.

67. S.C. 1992, c. 37.

68. CEAA’s relevance to transboundary issues is discussed in Kennett, Managing

Interjurisdictional Waters in Canada, 144-147, cf. n. 42, supra.

69. These provisions are discussed in Steven A. Kennett, “The Canadian Environmental

Assessment Act’s Transboundary Provisions: Trojan Horse or Paper Tiger?”, (1995)

5 Journal of Environmental Law and Practice 263.
The second way that CEAA affects transboundary water management is by permitting the federal government to review a broad range of

water projects falling primarily under provincial jurisdiction. Federal

regulatory powers under statutes such as the Fisheries Act, the International River Improvements Act and the Navigable Waters Protection Act constitute triggers for the CEAA process.70 Once triggered for a project, the

assessment process applies to a broad range of environmental and other

effects, not simply those associated with the particular trigger mechanism, such as effects on fisheries or navigable waters.71 Transboundary

effects may thus be considered in any CEAA environmental assessment,

not simply where the specific transboundary processes are used.

3.2.8 Northern Water Management

The legal framework for transboundary water management in the

northern territories is complex and currently in flux. The federal government is the principal owner of land and resources in the north and has

primary responsibility for water management. These responsibilities

are carried out through the Northwest Territories Waters Act72 and the

Yukon Waters Act.73 Although important instruments of federal water

management, these acts do not address transboundary water management directly.74 Transboundary water issues are addressed, however, in

constitutionally entrenched northern land claims agreements.75

CANADA’S DOMESTIC FRAMEWORK 67

70. Law List Regulations, SOR/94-636.

71. See S.A. Kennett, “Federal Environmental Jurisdiction after Oldman”, (1993) 38

McGill Law Journal 180.

72. S.C. 1992, c. 40.

73. S.C. 1992, c. 39. A separate water management statute for the new territory of

Nunavut is currently being prepared.

74. The conditions specified for issuing water licenses do, however, require attention

to significant adverse effects on “the use of waters, whether in or outside the water

management area to which the application relates.” See Northwest Territories Waters

Act, Section 14(4)(a)(I).

75. See, for example, Article 20 of the Nunavut Agreement. This article states that projects outside the Nunavut Settlement Area that affect Inuit water rights should not

be approved until arrangements are made for compensation. The settlement of

land claims in the Mackenzie River basin adds a new set of transboundary issues,

because, for water management purposes, the boundaries between land claims

regimes are increasingly important. Transboundary provisions are found in the

Mackenzie Valley claims (see, for example, Sections 20.1.18 and 20.1.19 of the Sahtu

Dene and Metís Comprehensive Land Claim Agreement) and in the Mackenzie Valley Resource Management Act (S.C. 1998, c. 25; see Sections 55, 60(3), 107, 141-144),

which will implement these claims by establishing new institutions for managing

resources, including water.
3.2.9 Summary

The legal framework for transboundary water management at the

federal level is a patchwork quilt of specific provisions. These provisions, taken together, could support a strong federal role in this area, but

they have yet to be integrated into a coherent whole. Furthermore, a history of selective enforcement, limited resources for monitoring and

investigating offenses, delegation to the provinces and deference to provincial sensitivities in relation to resource management has meant that

the federal role in transboundary water management is significantly less

important in practice than a reading of the relevant statutes might suggest.

3.3 The Policy and Institutional Framework at the Federal Level

3.3.1 Federal Water Policy

In January 1984, an advisory committee was established by the

minister of the environment pursuant to the Canada Water Act with a

broad mandate to review and advise on Canada’s water policy. The

committee’s final report, issued in September 1985, dealt with the federal responsibility for interjurisdictional waters by recommending the

repeal of Part II of the Canada Water Act and its replacement with “provisions to authorize the federal government to assist in resolving disputes

between provinces and territories about the use of interjurisdictional

waters.76” The recommended provisions would have included authorization for the federal government to intervene and impose a solution to

an intergovernmental dispute where the provincial or territorial governments had failed to agree after reasonable efforts and where one of the

jurisdictions had submitted a complaint to the federal government. The

report also made recommendations on water exports, including those

calling for the federal government to require permits for any water

exports and the cabinet to determine whether large-scale diversions of

water to the United States would be open to consideration.

The federal government responded to the report two years later by

issuing the Federal Water Policy.77 For interjurisdictional water conflicts

generally within Canada, the government committed itself to developing, in consultation with the provinces, a mechanism for resolving

interjurisdictional disputes where other avenues had failed.78 On the

68 INLAND WATER MANAGEMENT REPORT

76. Canada, Currents of Change, Inquiry on Federal Water Policy, Final Report, Ottawa,

1985.

77. Environment Canada, Federal Water Policy, Ottawa, November 1987.

78. Ibid., 33.
issue of interbasin transfers, the government agreed to three key efforts:

to “draft guidelines and criteria for assessing interbasin transfers within

Canada in cooperation with the provinces/territories; to take measures

to prohibit interbasin diversions aimed at exporting water from Canada;

and to develop with the provinces a system to regulate small-scale transfers of water.79” A specific provision also committed the government to

establishing “mechanisms with the provinces regarding (trans)boundary water to ensure that the [northern territories’] interests are protected.80” None of these commitments (with the arguable exception of

the last one) was implemented in the first 10 years following adoption of

the policy.

Although the 1987 policy focused on interbasin water transfers, the

federal government did offer a commitment to take all steps within its

jurisdiction to prohibit the export of Canadian waters by interbasin

diversions and to strengthen legislation to the extent needed to implement this policy. Smaller-scale transfers, including containerized ones,

were viewed as a matter better handled by the provinces. Interestingly,

however, this 1987 policy notes the need for the provinces to take into

account federal interests in making decisions on these transfers, with

trade considerations being expressly included.81 One effort to pass such

legislation, Bill C-156, the Canada Water Preservation Act, died in Parliament in 1988.

In February 1999, the federal government announced its strategy

to prevent the bulk removal of water from Canadian watersheds. The

strategy had three prongs:82

1. Amendments to the International Boundary Waters Treaty Act,

which implements the 1909 Boundary Waters Treaty, to give the

federal government the power to regulate to prohibit bulk water

exports from boundary waters (waters with a boundary running

through them). These amendments were not tabled, but were

expected to be tabled in the spring of 1999, before the session of

Parliament was adjourned. The development of a regulation

would then be subject to further consultations with the provinces

and a review of the state of provincial laws affecting potential

water exports.

CANADA’S DOMESTIC FRAMEWORK 69

79. Ibid., 24.

80. Ibid., 30.

81. Environment Canada, Federal Water Policy, Section 8, “Interbasin Transfers.”

82. The following is taken from the press release “Strategy Launched to Prohibit the

Bulk Removal of Canadian Water, Including Water for Export,” Foreign Minister

Lloyd Axworthy and Environment Minister Christine Stewart, 10 February 1999.

Numbered paragraphs note the strategy elements.
2. The Canadian government, with the United States government,

issued a joint reference under the Boundary Waters Treaty to the

International Joint Commission to study the effects of water

consumption, diversion and removal, including for export, from

boundary waters. Recommendations are to be made on the “management and protection” of these shared waters. The IJC is to conduct public consultations and to submit interim recommendations

six months from the reference date. Final recommendations are to

follow in a further six months.

3. The federal government proposes to pursue a Canada-wide accord

on bulk water removals from watersheds, by which all governments will act through legislation or policy to prohibit them. The

strategy urged the provinces and territories without existing prohibitions to adopt a moratorium on any bulk transfers while such

an accord is developed.

At the time of this writing, the federal government had initiated

discussions with the provinces and territories on these and other elements of its Federal Freshwater Strategy. Thus policies and other measures were in a state of evolution, with further developments anticipated

over the course of 1999-2000.

The federal strategy is anchored in the view that water in its natural

state is not a good and should not be treated as such. Accordingly, it

seeks to promote a consistent approach to all interbasin transfers or bulk

removals, whether for domestic or export purposes, as part of a broader

sound environmental management strategy for freshwater resources.

The strategy also reflects a jurisdictional dilemma at the federal

level. Provincial jurisdiction over water resources in their natural state

includes the ownership and overall management of the resource. Federal jurisdiction is limited to international and interprovincial issues, but

it also could be invoked at the border through the use of the trade and

commerce power.83 Exercising this constitutional jurisdiction, however,

requires the use of trade tools. It has been feared that this requirement

could be turned around to argue that water, even in its natural state, is

being treated as a good and thus should be subject to the full panoply of

trade laws applying to goods. This is not to imply that the use of such

tools would be inconsistent with the North American Free Trade Agreement (NAFTA) or World Trade Organization agreement. Rather, it

implies that the use of other tools, which would not raise these issues nor

70 INLAND WATER MANAGEMENT REPORT

83. This power is set out in Section 91(2) of the Canada Act, 1867.
reflect the proposition that water in its natural state is not a good, is the

preferable route to follow.

3.3.2 Institutional and Administrative Arrangements

Federal water management is implemented by a number of government departments and by the water boards in the northern territories. The administrative arrangements are sometimes complex, with the

departments of Environment, Fisheries and Oceans, Transport, Indian

Affairs and Northern Development and Health all taking some measure

of responsibility for water-related legislation and policy. In some cases,

authority for enforcing a single piece of legislation is shared by two

departments. The Department of Foreign Affairs and International

Trade is Canada’s lead federal agency for dealing with the International

Boundary Waters Treaty, the IJC, and the US State Department.

Federal institutional arrangements are further complicated by formal and informal arrangements that delegate powers to the provinces.

For example, some of the federal government’s enforcement powers

under the Fisheries Act related to fish habitat protection and pollution

prevention in inland waters have been assumed by the provinces.

Equivalency agreements under CEPA also limit the applicability of this

act and thereby reduce the direct federal role in pollution control. Moreover, deference to provincial sensitivities has produced an often passive

and sometimes uneven federal enforcement policy.

Finally, federal participation in intergovernmental water management agreements is particularly important in relation to transboundary

waters. These agreements are discussed in section 3.5.

3.4 The Legal Framework at the Provincial Level

As the principal water resource managers in Canada, the provinces have detailed legislation dealing with water quality and allocation.

In general, these statutes do not address transboundary water management, but statutory authorization for intergovernmental agreements is

usually provided, whether in water management legislation or elsewhere.84

In some provinces, transboundary water issues are addressed

through environmental assessment legislation. For example, ManitoCANADA’S DOMESTIC FRAMEWORK 71

84. See Saunders, Interjurisdictional Issues in Canadian Water Management, 105-106, see

n. 42 above.
ba’s Environment Act provides for a joint assessment process where a

project “may have an environmental impact of concern to a jurisdiction

other than Manitoba.85” British Columbia’s Environmental Assessment

Act allows neighboring jurisdictions to participate in project reviews.86

Although these provisions are the exception rather than the rule in

provincial legislation, they provide a model for incorporating transboundary concerns into the review and regulation of projects affecting

transboundary waters.87

One transboundary issue that has been addressed in several provinces is water exports. Three provinces have taken specific measures on

water exports: British Columbia, Alberta and Ontario. The province of

Quebec is currently undergoing a public consultation process on water,

and in Newfoundland proposed water exports became subject to the

province’s permitting and assessment processes as this report was being

written. It is likely that the policies in other provinces will develop over

the near future.

3.5 Interjurisdictional Water Management Agreements

As with many other shared federal/provincial areas of interest

under Canadian federalism, cooperation between the two levels of government is facilitated in important respects through a range of intergovernmental agreements. Generally, these agreements fall into two

categories: those that set out cost-sharing arrangements in areas of water

research and development (for example, hydrometric agreements and

flood damage reduction agreements), and those that are directed at

water management in specific basins. The latter are more relevant to

transboundary issues.

The federal government sits on several interjurisdictional water

boards, including the Prairie Provinces Water Board (PPWB), the

Ottawa River Regulation Planning Board (ORRPB), the Mackenzie River

Basin Board (MRBP) and the Lake of the Woods Control Board (LWCB)

—all established by intergovernmental agreements. These boards,

which have been created to deal with basin-specific concerns, have no

consistent structure or mandate. PPWB (comprising Canada, Alberta,

Saskatchewan and Manitoba) was set up to administer an apportionment agreement for prairie waters and later took on responsibility for

72 INLAND WATER MANAGEMENT REPORT

85. C.C.S.M., c. E125; and Joint Environmental Assessment Regulation, Manitoba Register 126/91.

86. S.B.C. 1994, c. 35, Section 2(e).

87. See, Kennett, Managing Interjurisdictional Water in Canada, see n. 42 above.
water quality. ORRPB (comprising Canada, Ontario and Quebec) coordinates use of the Ottawa River and concentrates primarily on balancing

hydroelectricity interests with flood reduction. MRBP (comprising Canada, three western provinces and the two northern territories) facilitates

“cooperative management of the Aquatic Ecosystem of the... Basin”

and reflects a balancing of upstream development interests (hydroelectricity and resource industry use) with a downstream interest in

instream uses, especially by aboriginal peoples. Finally, LWCB (comprising Canada, Manitoba and Ontario), which mirrors the International

Lake of the Woods Control Board, manages the lake flows within certain

high and low water marks, beyond which the international board

assumes responsibility (which occurs only about five percent of the

time).

The federal role in these boards varies somewhat, but the emphasis

in all the arrangements is on resolving disputes by consultation and

agreement. The precise legal status of the agreements establishing the

boards is at best ambiguous, but none of the agreements has ever been

litigated, and water managers involved in the boards stress the lengths

to which they will go in order to avoid litigation. They consistently refer

to the need to avoid the litigious approach to interjurisdictional water

management that they perceive as existing in the United States.

CANADA’S DOMESTIC FRAMEWORK 73

CHAPTER 4

Mexico and the United States: The Binational

Water Management Framework

4.1 Overview of the Legal Framework

Historically, the economic disparities between the United States

and Mexico have posed a significant challenge to the binational management of water resources. Yet despite their differences, the two countries

have established a high standard of cooperation on transboundary

waters.

The history of US-Mexico legal relations over water can be divided

into three stages. In the first stage, beginning in the late 19th century,

transboundary surface water resources, their use and, above all, their

apportionment, distribution and allocation, prevailed. The connection

between surface water and groundwater was not addressed at this

stage, nor was water quality considered a major issue. Several binational

agreements marked this first stage:

The 1889 Convention to Avoid the Difficulties Occasioned by Reason of the Changes which Take Place in the Beds of the Río Grande and

Colorado River created the first bilateral mechanism to deal with boundary water problems: the International Boundary Commission (now the

International Boundary and Water Commission, or IBWC). This was followed by the 1906 Convention Providing for the Equitable Distribution

of the Waters of the Río Grande for Irrigation Purposes. This agreement

guaranteed 74 Mm3 (60,000 AF) per year in deliveries to Mexico at a

point above Ciudad Juárez, in accordance with a monthly schedule. In

turn, Mexico waived any claims to Río Grande waters between the point

of delivery and Fort Quitman, located roughly 115 kilometers (km, 70

miles) downstream.

In November 1944, Mexico and the United States signed the Treaty

Relating to the Utilization of Waters of the Colorado and Tijuana Rivers

and of the Río Grande, which has been in force ever since and which

75
established the modern International Boundary and Water Commission. Better known as the 1944 Water Utilization Treaty, it is considered

the centerpiece of the US-Mexico legal framework for transboundary

water allocation.

The 1944 treaty sets forth a hierarchy of preferential water uses that

guide IBWC in its duties. According to Article 3 of the treaty:

In matters in which the Commission may be called upon to make provision for joint use of international waters, the following order of preferences shall serve as a guide:

1. Domestic and Municipal Uses.

2. Agriculture and stock raising.

3. Electric power.

4. Other industrial uses.

5. Navigation.

6. Fishing and hunting.

7. Any other beneficial uses which may be determined by the Commission.

All of the foregoing uses shall be subject to any sanitary measures or works

which may be mutually agreed upon by the two Governments, which

hereby agree to give preferential attention to the solution of all border sanitation problems.

This comprehensive treaty applies to surface water allocation in

the three transboundary basins but does not cover the allocation of

groundwater resources.88 The 1944 treaty’s apportionment of water in

the Río Grande and Colorado basins is described in the sections below.

Apportionment of the water of the Tijuana River has not yet been agreed

upon under the terms of the treaty.

The second stage of US-Mexico relations on transboundary water

resources began in the 1960s, propelled by the first major water quality

difference between the two countries: high-salinity water was being

delivered to the Mexicali Valley through the Colorado River. High concentrations of salts were entering the river upstream, particularly as a

result of extensive irrigation. The Colorado salinity controversy temporarily disrupted US-Mexico relations. As described in section 4.6.2.2, this

problem was largely resolved in 1973 by Minute 242 to the 1944 treaty.

The salinity of Colorado River water, however, remains a concern.

76 INLAND WATER MANAGEMENT REPORT

88. IBWC Minute No. 242, adopted in 1973, does provide for regulation of groundwater withdrawals on the Yuma Mesa on the western Arizona-Sonora border. This

minute order encourages binational efforts to achieve a groundwater agreement,

but no substantive progress has been made toward such an agreement.
At the end of its first eight decades of work, the IBWC had led the

two neighbors to settle all major surface water allocation and distribution problems. Moreover, the institution had served as the platform for

jointly constructed, financed and operated engineering projects, such as

the Amistad and Falcon International Reservoirs on the main channel of

the Río Grande.

Mexico and the United States are now entering a third stage in the

history of their management of transboundary waters. Issues likely to

dominate in the coming years are surface water quality and transboundary groundwater issues, including allocation, quality and groundwater/surface water interconnections.

The following sections describe in detail the prominent binational

institutions and the relevant legislation involved in the management of

freshwater resources along the US-Mexico border.

4.2 International Boundary and Water Commission (IBWC)

IBWC is a binational commission made up of two national sections. Each section is headed by a single commissioner who holds the

rank of ambassador in his or her respective foreign service. The commissioners are mandated by treaty to be licensed engineers. Each section

also includes up to two principal engineers, a legal adviser and a secretary. National sections remain under the policy authority of the national

governments operating through their respective foreign ministries—the

Department of Foreign Affairs (Secretaría de Relaciones Exteriores)in Mexico and the Department of State in the United States.

As an international body, IBWC is first and foremost an operational agency charged with boundary maintenance and reclamation

duties for the two governments. Under the 1944 Water Utilization

Treaty and earlier conventions and agreements, IBWC is responsible

for six functions: (1) maintaining the boundary; (2) constructing and

operating reclamation works located on the boundary; (3) allocating

transboundary water resources in accordance with treaty specifications;

(4) interpreting, investigating and resolving differences between the

Parties with respect to the meaning of the 1944 treaty and earlier agreements in its charge; (5) ensuring the enforcement of rules and procedures within its jurisdiction; and (6) constructing and maintaining joint

sewage and sanitation works, and resolving differences related to the

quality of transboundary water.

MEXICO AND THE UNITED STATES 77
The sections that follow describe the specific roles of IBWC in relation to different transboundary water management issues.

4.2.1 Reclamation

Through IBWC, the two countries have constructed and operated a

series of major reclamation works on the Río Grande and Colorado

Rivers for purposes of flood prevention and water storage. These projects, including channelization of the Río Grande, diversion and flood

control projects (the Anzalduas Dam on the Río Grande and the Morelos

Dam on the Colorado), and water impoundment for irrigation (the

Falcon and Amistad Dams on the Río Grande) have played an important

role in the development of agriculture and human settlements in the arid

border region. The commission also operates several hydropower projects associated with the Río Grande dams.

In compliance with the provisions of the 1906 Río Grande Water

Treaty and the 1944 Water Utilization Treaty, the IBWC has important

functions in the area of water allocation. It is the only institution to operate stream gaging stations, audit water flows and balances, and certify

compliance with treaty provisions. And it is the lead agency for investigating and mediating any disputes over treaty-based water deliveries

and water allocation issues (see next section).

4.2.2 Investigations and Dispute Settlement

The investigative, dispute settlement and other diplomatic functions of IBWC are found in Articles 2 and 24 of the 1944 Water Utilization

Treaty. IBWC is mandated to “settle all disputes” related to the “observance and execution” of the treaty; to “settle all differences that may

arise between the two Governments with respect to the interpretation or

application of this Treaty, subject to the approval of the two Governments”; and to “initiate and carry on investigations and develop plans

for the works which are to be constructed or established in accordance

with this or other treaties or agreements in force.” Under such authority,

IBWC has addressed a wide range of water-related environmental problems in the border area, including sanitation and sewage issues, salinity

and other water quality issues.

4.2.3 Quasi-judicial Function

IBWC’s quasi-judicial functions are confined to the actions necessary to carry out its other duties. The commission is required by the 1944

78 INLAND WATER MANAGEMENT REPORT
treaty “to carry into execution and prevent the violation of the provisions of those treaties and agreements” applicable to it. The treaty further stipulates that “the authorities of each country shall aid and support

the exercise and discharge of these powers and duties, and each Commissioner shall invoke when necessary the jurisdiction of the courts or

other appropriate agencies of his country to aid in the execution and

enforcement of these powers and duties.”

4.2.4 Water Quality, Water Pollution

IBWC has a range of functions in the area of water quality management. Until the mid-1980s, the commission was the sole agency dealing

with transboundary water quality issues along the US-Mexico border.

Under the authority of the 1983 United States-Mexico Agreement on

Cooperation for the Protection and Improvement of the Environment in

the Border Area (the La Paz Agreement) and more recent initiatives, it

now shares this responsibility with other agencies, particularly the environmental ministries of each country. IBWC’s authority in this area

derives from Article 3 of the treaty, which, as noted earlier, stipulates

priority of uses for international waters under the commission’s jurisdiction and subjects those uses “to any sanitary measure or works which

may be mutually agreed upon by the two Governments, which hereby

agree to give preferential treatment to the solution of all border sanitation problems.”

Under the provisions of Article 3, IBWC became the lead agency

for the development of transboundary sewage and sanitation projects

along the US-Mexico border. From 1946 through 1990, IBWC developed

and operated sanitation projects at Douglas, Arizona, and Agua Prieta,

Sonora; San Diego, California, and Tijuana, Baja California; Nogales,

Arizona, and Nogales, Mexicali; and Laredo, Texas, and Nuevo Laredo,

Tamaulipas. The rapid urbanization in the border area since the 1960s

has generated steady pressure for the expansion and further development of these and other projects in the border area, making sewage and

sanitation the most vigorous area of functional growth for the commission.89

The need to better define IBWC’s responsibilities in sewage treatment and water quality led to Minute 261 (in 1979), Minute 288 (1992),

and Minute 294 (1995). In response to numerous demands that the

commission move more aggressively to deal with a wide range of

MEXICO AND THE UNITED STATES 79

89. S.P. Mumme, “Innovation and Reform in Transboundary Resource Management:

A Critical Look at the International Boundary and Water Commission, United

States and Mexico”, (1993) 33 Natural Resources Journal 113-114.
transboundary water quality issues, Minute 261 broadens interpretation

of the 1944 water treaty’s Article 3 to allow the commission to deal with

problems of persistent water pollution. Minute 261 also provides the

basis for intensified binational efforts through IBWC to deal with sewage and sanitation, and related water pollution that is transboundary in

nature.90 Building on Minute 261, Minute 288 provides for a coordinated

water quality planning through partnerships with US and Mexican governmental agencies.

Minute 294 consolidates agreements on sewage treatment plant

works. Perhaps more important, Minute 294 represents an effort by

IBWC to provide assistance to border communities in bringing their

water quality and sanitation planning up to levels that would help them

achieve certification by the Border Environment Cooperation Commission (BECC) and, potentially, financing by the North American Development Bank (see section 4.4). In essence, this minute created a

foundation for increased cooperation between IBWC and BECC. In

December 1998, IBWC issued Minute 299 which called for a “Coordinated Memorandum of Understanding” that would formalize cooperation between the two commissions.

Under Minutes 261, 288 and 294, IBWC has addressed sewage contamination issues on a case-by-case basis, negotiating binational plans

for the construction of sewage collection works in San Diego-Tijuana,

the New River, Ambos Nogales and Nuevo Laredo. Progress in the New

River and San Diego-Tijuana areas has been slower than hoped for

because of a variety of complicating factors at the local and binational

levels. Rapid industrial development, population growth and the unequal economic conditions on different sides of the border have undermined efforts to treat all raw sewage prior to disposal in the Río Grande

and other areas of the border. The quality of transboundary surface

waters thus often violates the basic water quality standards of both

countries.91

80 INLAND WATER MANAGEMENT REPORT

90. S.P. Mumme, “The Background and Significance of Minute 261 of the International

Boundary and Water Commission”, (1981) 11 California Western International Law

Journal 223-235.

91. D.J. Eaton and D. Hurlbut, Challenges in the Binational Management of Water

Resources in the Río Grande/Río Bravo, US-Mexican Policy Report No. 2, Lyndon B.

Johnson School of Public Affairs, University of Texas at Austin, 1992, 2; R.A.

Sánchez, El Drenaje de Tijuana como Fuente de Conflicto entre México y Estados Unidos,

El Colegio de la Frontera Norte, Tijuana, Mayo de 1988; R. Morales and C. Romero,

“Evaluación de la contaminación en playas de Tijuana, B.C. Reporte Preliminar”,

Ecología y Frontera, Universidad Autónoma de Baja California, 1986; R. Sánchez,

“Las relaciones binacionales como un marco conceptual en el análisis de los

problemas ambientales transfronterizos entre México y Estados Unidos”, in Una

Frontera Dos Países, A. Utton and E. Marroquín, ed., Mexico: ANUIES, 1988;
Managing salinity in transboundary waters continues to be of

great importance on the US-Mexico border, particularly for the Colorado River. This issue, which is one of IBWC’s most active, is discussed

in further detail in section 4.6.2.2.

4.3 La Paz Framework Agreement

In response to the new and more complex environmental situation

on the US-Mexico border, the United States and Mexico signed a framework agreement for binational environmental cooperation in 1983. The

United States-Mexico Agreement on Cooperation for the Protection and

Improvement of the Environment in the Border Area (the La Paz Agreement) establishes a process for regular binational consultation on border

area environmental problems, the assignment of priorities, and the

development of binational solutions to identified problems.92 Under La

Paz, Mexico and the United States agreed to work together in preventing, reducing and eliminating pollution that may affect the border area.

The agreement defines the border area as a zone extending 100 km

(62 miles) on either side of the international boundary.

The heads of the two national environmental agencies (Semarnap

and EPA) are national coordinators for the La Paz Agreement. The

national coordinators’ principal functions are to coordinate and monitor

the implementation of the agreement and its annexes, make recommendations to the parties, and organize annual meetings.93 While official

participation is mostly federal, the national coordinators may invite

state, municipal and non-governmental representatives to take part in

the meetings.

The La Paz Agreement has been implemented primarily by means

of the binational working groups. These working groups bring together

MEXICO AND THE UNITED STATES 81

and C. Metzner, “Transboundary Sewage Problems: Tijuana/San Diego/New

River/Imperial Valley”, (1988) 2 Transboundary Resources Report 5-6.

92. A. Székely, “Establishing a Region for Ecological Cooperation in North America”,

(1992) 32 Natural Resources Journal 563; S.P. Mumme, “La Paz Agreement: Progress

and Problems in Managing the Border Environment”, (1988) 2 Transboundary

Resources Report 1-3; M.A. Sinclair, “The Environmental Protection Agreement

between Mexico and the United States: A Response to Pollution Problems of the

Borderlands”, (1986) 19 Cornell International Law Journal 87; H.M. Ingram, “State

Role in US-Mexico Resource Issues”, (1987) 1 Transboundary Resources Report 4; and

A. Székely, “How to Accommodate an Uncertain Future into Institutional Responsiveness and Planning: The Case of Mexico and the United States”, (1993) 33 Natural Resources Journal 9.

93. At least one meeting of the national coordinators must be held annually, and meetings may be held more frequently as necessary.
federal agencies from both countries in various areas to work toward

common solutions to identified problems. Within the Border XXI framework (see section 4.5.1), working groups deal with water, air, hazardous

and solid wastes, contingency planning and emergency response, cooperative enforcement, and pollution prevention.

The La Paz Agreement provides a means of concluding special or

ad hoc arrangements, in the form of annexes, to deal with specific common environmental problems at the border. The agreement is applicable

to all environmental issues, including land and water pollution, so long

as it does not “prejudice or otherwise affect the functions entrusted” to

IBWC in accordance with the 1944 treaty. This recognition of IBWC as

the lead agency for resolving binational water disputes means that

IBWC frequently works on water quality issues in cooperation with the

working groups established under the La Paz Agreement.94

During the first six years of the La Paz process, the two countries

were able to agree on five annexes, two of which were water-related.

Annex I for the “Solution of the Border Sanitation Problem at San Diego,

California/Tijuana, Baja California” was concluded in 1985 to deal with

a serious water sanitation problem that had arisen when sewage from

Tijuana entered San Diego and its adjoining bay. Annex II, “Regarding

Pollution of the Environment along the Inland International Boundary

by Discharges of Hazardous Substances,” also concluded in 1985, dealt

with water pollution in border rivers. Other annexes address issues such

as hazardous waste, air quality and emergency response.

As a result of this early work under the La Paz Agreement and its

annexes, sewage treatment plants and collection facilities have been and

are being built; copper smelters have been either closed down, frozen

at their current capacity or modified; more water quality monitoring

devices and programs have been put in place for transboundary waters;

the two countries have adopted more stringent environmental regulations for the area; and the exchange of data and training of personnel has

become commonplace.

In keeping with its mandate, the La Paz process has not addressed

certain transboundary water-related issues. These issues include

drought and groundwater management, which have yet to be addressed

82 INLAND WATER MANAGEMENT REPORT

94. Scott A. Hajost, “US-Mexico Environmental Cooperation: Agreement between the

United States of America and the United Mexican States for the Protection and

Improvement of the Environment in the Border Area”, (1984) Environmental Law

1-3.
by IBWC.95 Concerns about groundwater quality have led to suggestions that the La Paz process be extended. The controversy of a few years

ago surrounding the siting of a low-level radioactive waste disposal site

in Hudspeth County of southern Texas underscores the need for

enhanced mechanisms. Current discussions on transboundary environmental impact assessments under way in CEC may lead to the development of suitable mechanisms.

4.4 Border Environment Cooperation Commission

Inaugurated along with the NAFTA on 1st January 1994, the Border Environment Cooperation Commission (BECC) is the most recent

institutional player with a mandate affecting binational water management. The Commission is a direct result of the NAFTA process and is

intended to address historic shortcomings in environmental infrastructure along the US-Mexico border. The BECC’s functions are to provide

technical assistance for developing environmental infrastructure projects in the border area, and to certify those projects for financing consideration by the North American Development Bank (NADBank) and

other sources. As such, it is limited to the official border region of

100 kilometers on each side of the border and to three types of environmental infrastructure development: water supply and treatment, waste

water treatment and disposal, and solid municipal waste (and related

matters).

BECC is required to certify that projects meet basic environmental

criteria before they are eligible for any financing. Project financing is

arranged through the NADBank and other public and private lenders.

The BECC/NADBank structure is unique. First, the structure ensures

that only environmentally sound projects ever make it to final consideration, rather than doing a cursory environmental impact review of

otherwise financiable development projects. Second, that such certification is not in the same hands as those making the decisions on the

financiability of the projects eliminates a potential conflict of interest.

A binational commission, BECC relies on its board of directors,

general manager, deputy general manager, advisory council and staff to

carry out its functions. The board of directors oversees “operational and

structural policies.” It is made up of 10 members, including the US and

Mexican commissioners of IBWC, and the chief administrative officers

of the national environmental agencies or their deputies. The six addiMEXICO AND THE UNITED STATES 83

95. A.E. Utton, “Water and the Arid Southwest: An International Region under

Stress”, (1994) 34 Natural Resources Journal 957-961.
tional directors, chosen on the basis of needed expertise, represent US

and Mexican border states, municipalities and the general public. The

chair of the board of directors is selected annually, named by each of the

parties on a rotating basis. The positions of general manager and deputy

general manager are divided between the two countries. The board of

directors appoints each manager for a three-year term, after which the

positions rotate between the two countries. The advisory council may

consist of up to 18 members. Up to six members represent US border

states and municipalities; another six represent Mexican border states

and municipalities; three members represent the US public; and three

members represent the Mexican public.

Through a special grant fund, BECC helps small communities field

project proposals. This up-front, before certification, technical assistance

helps ensure technically sound and feasible projects, master plans, project design, environmental assessment and local institutional capacity-building. BECC works with states, municipalities and private parties

to deliver such projects. Under its charter, the BECC works closely with

the IBWC and domestic environmental agencies in considering the need

for infrastructure projects. Operationally, however, it remains dependent on project submissions from border communities.

4.4.1 BECC Project Certification

Water-related projects are expected to continue to make up a significant component of BECC projects, particularly in the area of sewage,

sanitation and municipal water supply. Of the 49 projects (29 American

and 20 Mexican), with a total investment value of US $ 1 billion, that

obtained BECC certification through June 2001, 44 were water-related.

Although urban projects are likely to be favored, rural water supply,

groundwater protection, restoration and preservation of wetlands, and

other biodiversity issues may qualify for BECC certification and technical assistance.

The detailed certification itself is based on a set of environmental,

health, technical, financial, community participation and sustainable

development criteria, through a process that ensures extensive public

and local input.

4.4.2 North American Development Bank

The North American Development Bank (NADBank) was established under the auspices of NAFTA to facilitate financing for the development, execution and operation environmental infrastructure projects

84 INLAND WATER MANAGEMENT REPORT
that have been certified by BECC, its sister institution. NADBank has a

binational, six-person board of directors—three from the United States

and three from Mexico. All six members are federal cabinet level presidential appointees. There is no state, local or public representation on

the board. The chairmanship of the board alternates each year between

Mexican and US representatives.

NADBank’s capital is committed in equal amounts by the two governments. Fifteen percent of this capital, $ 450 million, is in the form of

paid-in capital and the remainder is subscribed as callable capital.

Through June 2001, NADBank had approved $ 295 million in loans,

guarantees and grants to help finance 36 environmental infrastructure

projects along the US-Mexico border, of which 30 were directly related

to water, wastewater or both.

Overall, NADBank funds are expected to augment and strengthen

existing financial support for border water-based infrastructure, and to

leverage financing for unrated (by traditional finance sources) and

underserved communities. However, the provision of adequate financing remains a serious limitation. The BECC-NADBank structure does

not officially preclude more traditional approaches to infrastructure

financing, but it does shift the emphasis from government grants and

subsidies to market-driven, pay-for-service instruments. This approach

favors urban areas in the competition for funded projects. Some have

raised concerns about the capacity of poorer people to pay for local

water services, particularly in Mexico.

The BECC/NADBank institutional structures as implemented

allow for innovative initiatives to resolve border environmental problems. In particular, the BECC’s project certification criteria are to be

highly applauded. As such, the BECC and the NADBank have had a limited but generally positive effect on binational environmental cooperation in the region. For example, the nearly 50 BECC/NADBank projects

certified to date exceed the number of projects and people served in all

preceding efforts in the border region. The BECC and the NADBank

have adopted real measurements for qualitative outcomes rather than

simply quantitative outcomes; they are institutions with sustainable

development criteria to implement solutions.96 Over time, the mechanism of the BECC criteria for certification and the NADBank financial

evaluations should ensure the efficient spending of funds to improve the

quality of life of those who live in the border region.

MEXICO AND THE UNITED STATES 85

96. For a more full discussion of this see: M. Spalding, “The NAFTA Environmental

Institutions and Sustainable Development on the US-Mexico Border”, chapter for

Shared Space: Rethinking the US Mexico Border Environment, Herzog, ed., Regents of

the University of California, 2000.
4.4.3 Expansion of the Mandate of the BECC/NADBank Institutions

Despite the many urgent infrastructure and environmental needs

in the region, less than four percent of the NADBank’s paid-in capital

has been expended on loans for border environmental infrastructure

projects in its more than seven years of existence. As a result of a growing

concern that the majority portion of the NADBank’s resources were

going unused, the board of the NADBank directed the NADBank staff to

prepare a white paper to explore options to address this issue. This white

paper was issued in June 2000. The white paper primarily proposed a

mandate expansion to allow the bank to lend in sectors more easily

financed. As examples of the proposed areas for mandate expansion, the

NADBank listed:

• agriculture to municipal water transfers;

• individual water and wastewater home installations;

• industrial and hazardous waste treatment and disposal

projects;

• air quality projects: general;

• air quality projects: street paving;

• municipal urban roads and public transportation systems;

• housing improvements.

NADBank describes the outcome for this process as follows:

In November 2000, the [NADBank] Board approved a resolution allowing

the Bank to finance new types of BECC-certified environmental infrastructure projects within the current charter. While water, wastewater and

solid waste will continue to be priorities, this new flexibility to consider

additional sectors and financing mechanisms will greatly enhance the

Bank’s positive impact along the border. The Bank and the Border Environment Cooperation Commission (BECC) are working together to identify which new environmental infrastructure sectors to pursue in the near

term.97

In early 2001, the BECC and the NADBank agreed to open additional types of projects for certification and financing. This mandate

expansion has just begun and is not yet fulfilled. A recent joint letter

from the BECC and the NADBank indicated their agreement to expand

86 INLAND WATER MANAGEMENT REPORT

97. From the NADBank’s web site discussion of mandate expansion: <http://www.

nadbank.org/Reports/mandate/eng/mandate_frame.htm>.
their scope beyond the original mandate for water, wastewater, and

solid waste projects. The BECC will certify industrial and hazardous

waste projects (to the extent they will prevent a pollution threat to water

or soil); water conservation projects; water and wastewater hookups for

housing; and recycling and waste reduction projects. BECC will also certify, on a pilot basis, projects related to air quality, public transportation,

and clean and efficient energy, as well as projects that improve municipal planning and development, and water management.

In addition, new finance mechanisms have just been developed to

address the lack of affordability of NADBank lending. For example, the

NADBank has recently set up a limited-purpose financial mechanism

that channels NADBank financing to Mexican public sector environmental infrastructure projects to avoid Mexican constitutional prohibitions on sub-federal entities borrowing in foreign currencies and from

foreign entities. Even more promising is NADBank’s new Value

Lending Program to lend $ 50 million of its paid-in capital through low

interest rate loans for water, wastewater, and solid waste projects.

To complement the agreement between the sister institutions, the

mandate expansion discussion has been continued through proposals of

environmental groups and politicians. Leading policy advocates for the

border region, the Texas Center for Policy Studies, together with the

North American Integration and Development Center, and the William

C. Velasquez Institute, have now fielded their own proposal for reform

of the institutions:

• Dedicate a majority of the bank’s paid-in capital—between $ 150 and

$ 200 million—to low interest loans for border environmental projects

certified by BECC.

• Improve the certification process itself.

• Allow other NADBank capital to be used for non-environmental

infrastructure projects in and outside the border zone, with guarantees for transparency and accountability in the use of these public

funds.

• Establish a program within NADBank to leverage transnational

remittances for community development projects in those regions of

Mexico where economic opportunity is so scarce that people are

forced to migrate in search of work.98

MEXICO AND THE UNITED STATES 87

98. Finding Common Ground: A Public Interest Proposal for BECC/NADBANK Reform,

Austin/Los Angeles: William C. Velasquez Institute, Texas Center for Policy

Studies, and the North American Integration and Development Center, 9 August

2001.
In February 2001, President Fox in his first official meeting with

President Bush suggested that we convert the existing NADBank and

redirect its capital to be used for North America-wide economic promotion loans, including micro-enterprise loans to stimulate small and

medium businesses, especially those in Mexico. Fox suggested that Canada, Mexico and the US contribute to such a redesigned NADBank. His

proposals included expanding the geographical focus of the NADBank

from US/Mexican border to all of North America, and would expand

the scope of development projects from environmental infrastructure

(sanitation and solid waste projects, air quality, water quality and conservation) to non-environmental infrastructure projects such as airports,

bridges and transportation corridors.

According to a Joint Statement between the United States of America and the United Mexican States issued on 6 September 2001:

To serve urgent environmental priorities in the border area, the Presidents

agreed that immediate measures were needed to strengthen the performance of the North American Development Bank (NADBank), and its sister Border Environmental Cooperation Commission (BECC), to identify

and fund environmental infrastructure projects on the border. Presidents

Bush and Fox agreed that a binational working group —which will consult with national legislatures, border states, communities, and other

stakeholders— will develop joint recommendations and report back to the

Presidents by 31 October 2001.

4.5 Other Binational Initiatives

Since 1992, Mexico and the United States have sought to further

improve binational cooperation in environmental management, including water resources. Many of these initiatives can be traced to perceived

deficiencies in the La Paz process and to public demands for the two

countries to work together more aggressively to deal with environmental problems on the border.

4.5.1 Border XXI (Integrated Border Environmental Plan)

The Border XXI initiative, adopted in October 1996, builds on the

Integrated Border Environmental Plan (IBEP) of 1992, in response to

concerns about the possible adverse environmental consequences of

activities flowing from the NAFTA agreements. Border XXI is a regional

sustainable development program that complies with Agenda 21 at the

88 INLAND WATER MANAGEMENT REPORT
global level.99 Its core objective is to improve binational, intergovernmental, and social cooperation for environmental protection and sustainable development in the border area. The Border XXI operational

approach emphasizes public involvement, decentralization of environmental management through state and local capacity building, and

improved communication and cooperation among federal, state and

local government agencies.

Building on the La Paz process and other existing binational institutions, Border XXI sets five-year targets for environmental improvement in the California-Baja California, Arizona-Sonora, New MexicoTexas-Chihuahua, Texas-Coahuila/Nuevo León, and TexasTamaulipas regions of the border. Nine new binational working groups,

incorporating the La Paz process working groups, are coordinating

binational environmental/sustainable development policy for the border area. These groups meet at least annually to coordinate activities in

their respective areas of concern.

At this juncture, it is difficult to point to concrete advances in

transboundary water management associated with the Border XXI initiative. Compared with the La Paz process and the earlier IBEP, Border

XXI adopts the language of sustainable development, construes the border area in more flexible and more ecological terms and establishes

five-year objectives for the realization of new and ongoing projects.

Biennial implementation plans and progress reports will track and

assess the Border XXI process. Financial commitments beyond current

authorizations remain nebulous, however, and are tied, in the Mexican

case, to implementation of the World Bank’s Northern Border Environmental Program, a program heavily oriented to urban water and

environmental infrastructure development.100 The initiative should

reinforce institutional commitments and strengthen the case for further

coordination and cooperation in binational water management. Perhaps

most important, Border XXI provides an additional means of accommodating public participation and public input on environmental management in the border region. In other respects, Border XXI may well be

viewed as a repackaging of existing binational agreements and practices

as these influence water management in the border region.

MEXICO AND THE UNITED STATES 89

99. Agenda 21, the Rio Declaration on Environment and Development, and the Statement of Principles for the Sustainable Management of Forests is a comprehensive

plan of action to be taken globally, nationally and locally by organizations of

the United Nations system, governments, and major groups in every area in

which humans affect on the environment (see <http://www.un.org/esa/sustdev/

agenda21.htm>).

100. World Bank, Staff Appraisal Report: Northern Border Environment Project, Report No.

12603-ME, Latin American and Caribbean Regional Office, International Bank for

Reconstruction and Development, Washington, DC, 16 May 1994.
4.5.2 Good Neighbor Environmental Board and Regional Advisory

Council for Sustainable Development

The Good Neighbor Environmental Board (GNEB) was established by the US Congress in 1992. It advises the president and Congress

concerning environmental and infrastructure issues and needs within

the states contiguous to Mexico. As such, it directly assists federal

authorities involved in environmental protection in the border area. Its

Mexican counterpart, the Regional Advisory Council for Sustainable

Development (Consejo Regional para Desarollo Sustenable) was created in

1995 to advise Semarnap on regional matters of concern. The advisory

council covers four national regions; Region 1 is the northern border

area. Although some intergroup consultation occurs, the groups function independently. Through these institutions, the federal governments are formalizing and supporting mechanisms for the border area,

which are formally incorporated in Border XXI’s public participation

processes.

The GNEB is attempting to take a long-term view including the use

of long-term indicators of human and ecosystem health. It is effective at

calling for and reporting on the transparency and accountability from

the various other border institutions and government agencies working

on border issues. While the GNEB’s deliberate, but important development of consensus results in a more diplomatic message, it represents an

important integrative approach to border issues. The 25-member board

is composed of representatives from federal, tribal, state, and local government, non-governmental organizations (NGOs), academia, private

organizations, and the community.

The GNEB’s most important contribution to date regarding water

in the border region is its September 2000 Fourth Report to the President

and Congress.101 The five recommendations it contains all reflect the

basic premise that the US/Mexico border region faces critical water

issues, and takes a “watershed” approach to strategically addressing

priorities for our growing populations. According to the report,

“[w]atersheds are natural boundaries that can be thought of as dividing

the land into water-resource management units that are often more useful than more traditional designations such as political boundaries.” The

report’s five recommendations are:

90 INLAND WATER MANAGEMENT REPORT

101. The full text of the Good Neighbor Environmental Board’s Fourth Report to the

President and Congress of the United States is available on line at <www.epa.gov/

ocem/gneb-page.htm>.
• Institutionalize a border-wide watershed approach. Enable institution of a

watershed approach as the underlying standard operating procedure

for all projects that deal with water-resources management along the

US border with Mexico. Concentrate initially on key priority watersheds and then expand the effort.

• Support data-gathering and analysis that generates a clear picture of border

watersheds. Using, initially, a subset of priority watersheds,

strengthen current efforts to collect, integrate, and analyze the data

needed to flesh out watershed-based planning frameworks and fully

understand both existing conditions and potential future scenarios in

them. Expand this effort until, eventually, sufficient data is gathered

and available for all border-region watersheds so that a watershed

approach can be fully implemented.

• Highlight and support water resource management practices along the border that are based on a watershed approach. Develop a border-region strategic water plan that becomes a useful operational tool for day-to-day

management decisions about individual watersheds made by US federal, state, county, municipal and tribal decision makers, and also is

available to other interested groups. The plan should identify key

transboundary water quality and quantity issues, present core components of a transboundary watershed analysis, include preliminary

options for addressing these issues, and complement existing state,

local and tribal government watershed-based plans and programs.

• Encourage the full participation of tribal governments, along with binational

organizations, federal, state and local governments and other border groups,

in developing and implementing a watershed approach. Ensure that the

training, funding and physical infrastructure needs of all tribal

governments, along with other border governmental agencies and

population groups, are fully addressed when developing and implementing a watershed management approach.

• Provide continued federal budgetary support for actions and programs consistent with the themes and purposes of a watershed approach for the border

region. Good Neighbor especially wishes to emphasize the importance and urgency of continued and full budgetary support for binational commitments to address border environmental issues within

the context of a watershed approach.

4.6 Basin-Specific Frameworks

Many aspects of freshwater resource management along the USMexico border fall under state or other regional jurisdictions. The

MEXICO AND THE UNITED STATES 91
following sections profile the existing legal and institutional transboundary water management frameworks at the individual basin level.

4.6.1 Tijuana River Basin

The relevant legal regimes for this basin include California state

law, Mexican federal law and the 1944 Water Utilization Treaty. California state law and the 1944 treaty, as they relate to the Tijuana basin, are

described below. Mexican federal law is described in Chapter 1.

California has a hybrid system of water rights, recognizing both

riparian and prior appropriation rights.102 For the most part, allocations

in times of shortage are based on seniority of appropriative rights, and

some existing riparian rights have seniority. California is unique in that

its permitting system is based on beneficial and reasonable use of water.

Reasonableness is determined on the facts of each case and may change

over time. This provision implies that water rights holders under California’s appropriative system are more susceptible to having their rights

modified than are water rights holders in some other prior appropriation states.

California law provides for public interest review of water right

applications and transfers. The state also has a strong public interest doctrine that has been enforced by the courts. Instream use is defined as beneficial use, but it is not clear that a private person could secure an

appropriative right to instream flows under California law.

Article 16 of the 1944 treaty provides that in order to “improve

existing uses and to assure any feasible further development, the IBWC

shall study and investigate, and shall submit to the two governments for

approval, recommendations for the equitable distribution between the

two countries of the waters of [the Tijuana] River system.” But despite

various attempts, the two governments, through IBWC, have failed to

reach any apportionment agreement for the Tijuana basin waters. As a

result, each country has tried unilaterally to capture what little surface

water the basin offers.

4.6.2 Colorado River Basin

The relevant legal regimes for this basin include California, Colorado and Arizona state laws, various interstate compacts, Mexican

92 INLAND WATER MANAGEMENT REPORT

102. For a thorough analysis of current California water management policy and implications, see P. Gleick et al., California Water Management 2020: A Sustainable Vision,

Oakland, CA: Pacific Institute, 1995.
federal law (Chapter 1) and the 1944 Treaty. Colorado and Arizona rely

on prior appropriation permitting systems, and the California system is

described in the previous section.

4.6.2.1 US “Law of the River”

Water management in the Colorado River has a history of conflict

and mistrust. Throughout the first part of the 20th century, conflicts

arose over rights to use the river’s water. Since then, ways to develop

and deliver the water to support economic growth within the basin

states have been the subject of debate. The conflict-ridden process of

“dividing” and then “developing” the waters of the Colorado has preoccupied water planners throughout most of the century. The resultant

combination of federal legislation, compacts, mandates, and court decisions makes up what is now called the “Law of the River.” The most relevant elements of the Law of the River are summarized in the discussion

that follows.

The Colorado River Compact of 1922 (see section 2.2.2.1) was the

first attempt by political leaders and water officials to divide the waters

of the Colorado River. The compact came about because of concerns by

the upper-basin states (Colorado, Wyoming, New Mexico and Utah)

that the proposed Hoover Dam and other lower-basin water projects

might deprive them of water in the future. Lower-basin states (California, Arizona and Nevada), especially California, were growing faster

than the upper-basin states. Because of the western water law doctrine of

prior appropriation, it was feared that rights to the river’s water would

be established before the upper basin had a chance to develop its fair

share.

The compact splits the Colorado River basin into two geopolitical

regions—the upper and lower basins—with Lee’s Ferry, Arizona, specified as the dividing mark. The 1922 compact stipulated that any amount

allocated to Mexico by future treaty would come equally from the upper

and lower basins. Finally, it was agreed the lower basin retained the

right to use any water that the upper basin did not use.

Six years later, the US Congress passed the Boulder Canyon Project

Act of 1928, which granted congressional approval of the 1922 compact.

The act also authorized the construction of Boulder (later called Hoover)

Dam for water supply, flood control and hydropower generation in the

lower basin, as well as the All American Canal for delivery of water to

California. In addition, the secretary of the interior, through the Bureau

of Reclamation, was authorized to enter into contracts for the storage of

MEXICO AND THE UNITED STATES 93
water in Lake Mead and the delivery of water for irrigation and urban

use in the lower basin.

In the late 1940s, the upper-basin states signed the Upper Basin

Compact of 1948, allocating Colorado River water among the states as

percentage shares of the annual volume available and based the distribution on each state’s contribution to the river’s flow.103

The Colorado River Storage Project Act of 1956 authorized the construction of several dams, including Glen Canyon Dam, which, when

completed in 1963, formed Lake Powell on the Arizona-Utah border.

The reservoir is able to hold the equivalent of two years of the Colorado’s

annual average flow. This dam was supposed to be the engineering solution to a problem that became evident during the decades that followed

the signing of the 1922 compact: the average flow of the river was considerably less than the compact negotiators had assumed.104

A 1963 US Supreme Court decision, Arizona v. California, settled 11

years of litigation stemming from Arizona’s desire to build the Central

Arizona Project so it could use its full Colorado River apportionment.

The Supreme Court ruled that the Boulder Canyon Project Act of 1928 had

determined that Arizona’s apportionment (3,454 Mm3) did not include

tributary waters of the state. The court’s 1964 decree also prohibited the

secretary of the interior from delivering water outside the framework of

entitlements defined by law. Moreover, the court granted five Native

American tribes along the Colorado River reserved rights to river water

dating back to the establishment of their reservations, with the total

amount of these rights to be quantified according to each reservation’s

“practicably irrigable acreage.105” These Native American entitlements

were to be drawn from the water apportionment of the state in which the

tribe was located.

94 INLAND WATER MANAGEMENT REPORT

103. Colorado (51.75 percent), Utah (23 percent), Wyoming (14 percent) and New Mexico (11.25 percent). Arizona (a northern portion of which is in the upper basin)

received a fixed allocation of 61.7 Mm3 (50,000 AF) per year.

104. Emerging hydrologic evidence suggested that if the upper basin were to consume

its full 9,251 Mm3 (7.5 MAF) annual allotment, it would fail to meet its obligation to

provide at least 92,511 Mm3 (75 MAF) to the lower basin during any consecutive 10

years. By building a large reservoir near Lee’s Ferry, the upper basin could store

water during wet periods and release it during dry periods, helping to meet its compact obligations while maximizing its own supply. In addition to regulating the

flow into the lower basin, Glen Canyon Dam, like Hoover Dam downstream,

became a major generator of hydroelectric power and a “cash register” (through

power sales) for constructing other water supply projects.

105. H. Ingram, A.D. Tarlock and C.R. Oggins, “The Law and Politics of the Operation of

Glen Canyon Dam”, in Committee to Review the Glen Canyon Environmental

Studies, Water Science and Technology Board, Colorado River Ecology and Dam Management, Washington, DC: National Academy Press, 1991.
TheColorado River Basin Project Act of 1968 authorized construction

of the Central Arizona Project (CAP) and other water development projects in the upper basin. However, in order to mollify California’s

concerns about reliability of supply in dry years, Arizona agreed to subordinate CAP’s entitlement to that of California’s full basic apportionment of 5,427 Mm3 (4.4 MAF). As a result, in times of shortage, deliveries

to CAP are eliminated before California’s entitlements are affected.

The Grand Canyon Protection Act of 1992 requires the secretary of

interior to operate Glen Canyon Dam in such a way as to protect and

improve the values for which Grand Canyon National Park and Glen

Canyon National Recreation Area were established. This marked the

first time that protection of downstream river resources was identified

as a primary purpose of a Colorado River dam. The act ensures that

water releases from Glen Canyon Dam will stay within a range that protects the safety of Grand Canyon river rafters and boaters. This strategy

helps maintain the sand beaches along the river that are used by these

boaters and that constitute important habitat for aquatic and terrestrial

species. The act thus raised the priority of recreational values and lowered the priority of hydropower values in the operation of the dam.

It is important to note that because of the way the Law of the River

was created, amended and modified, each of the river’s stakeholders

now holds a different hand of cards. Because of negotiations that took

place in the early-1920s and the mid-1930s, respectively, the urban areas

of Nevada and California receive limited supplies from the Colorado

River. These areas are currently seeking more water to meet their growing demands. Arizona, by contrast, has an abundance of Colorado River

water rights, but more than half of them are extremely junior priority

rights due to concessions made in the early 1960s. Because in times of

drought Arizona’s supply will be the first to be cut back, reliability of

water supply remains a concern for Arizona.

In general, most farming communities of the lower basin are well

endowed when it comes to water rights. Their rights are senior and their

entitlements are more than sufficient to meet their needs. However, as

water laws are now structured there is little incentive for them to conserve because of a system that permanently removes cancel rights for

water that is not being put to beneficial use.

Though not formally part of the Law of the River, some federal

statutes have a bearing on how the Colorado River is managed. The

three most important are the Clean Water Act, the Endangered Species Act

(ESA), and the National Environmental Policy Act, each of which may

MEXICO AND THE UNITED STATES 95
impose habitat maintenance or environmental protection mandates on

existing water rights allocations, dam operations and river management

procedures.

When the waters of the Colorado River were divided over 70 years

ago, no water was explicitly dedicated to maintain healthy aquatic ecosystems. One could argue that instream flows were accounted for by the

1922 compact signatories when they apportioned only 18,500 Mm3 (15

MAF) of a river they believed to have an annual average flow of 22,200

Mm3 (18 MAF). Unfortunately, that 3,700 Mm3 (3 MAF) cushion

instantly disappeared when scientists learned that annual average flows

were closer to 18,500 Mm3 per year (measured at Lee’s Ferry) and possibly lower. Even though the river’s flows were grossly overestimated,

subsequent laws and decrees have been based on the original apportionments agreed to in the compact.

In the United States, federal legislation such as the Endangered Species Act, the National Environmental Policy Act and the Grand Canyon

Protection Act have made environmental issues a factor in the river’s

management. No river management plan, however, comprehensively

accounts for ecosystems. Laws such as ESA and NEPA restrict and influence river operations, but only in a fragmented way. As a result, piecemeal attempts have been made to rescue imperiled species, but only

recently have agencies begun looking into comprehensive strategies for

ecosystem recovery.

In essence, the environment does not have any explicit rights to the

waters of the Colorado River. The water needed to meet local ecosystem

requirements has thus far been fulfilled with unused entitlements. In

this sense, the environment, which has not yet been fully integrated into

Law of the River and given explicit water rights, is living off of “borrowed” water. Because all the legally apportioned water for human uses

is eventually used by basin states, there is great uncertainty as to what

will happen to the ecosystems. Unless a mechanism can be established

that provides water for the environment, water will surely be taken from

the most junior water rights holders in order to meet existing ESA and

NEPA requirements. If so, several stakeholders on the lower basin stand

to be adversely affected.

4.6.2.2 1944 Water Utilization Treaty

In 1944, to resolve Mexico’s long-standing concerns that it have

secure rights to transnational rivers along the border, the US and Mexican governments entered into the 1944 Water Utilization Treaty. Among

96 INLAND WATER MANAGEMENT REPORT
other things, the treaty committed 1,850 Mm3 per year (1.5 MAF/yr,

roughly equivalent to 10 percent of the average annual flow) of Colorado River water to Mexico. In times of surplus, Mexico would receive

an additional 246.7 Mm3 (200,000 AF) per year from the Colorado. In

accordance with the 1922 compact, the upper and lower basins were

each to supply half of the total amount obligated by treaty to Mexico.

The US-Mexico treaty of 1944 said nothing about the quality of

water to be delivered to Mexico under the agreement. Salinity is the

major water quality issue facing the river basin. As with many rivers of

the western United States, the Colorado is naturally salty. Half of the

average annual salt load of 8.2 million tonnes (9 million tons) carried

past Hoover Dam is attributed to natural occurrences.106 Human-caused

increases in salinity concentration account for the remainder, and

include saline irrigation return flows, reservoir evaporation,

out-of-basin transfers, and municipal/industrial uses.

In the early 1900s, the salinity of the river’s water increased from

under 50 parts per million (ppm) at its source high in the Rocky Mountains to 400 ppm when it crossed the border into Mexico. Development

and human uses have now more than doubled the salinity of water

entering Mexico at the border. As water is repeatedly diverted, used and

returned to the main stream on its journey from the Rocky Mountains to

the Sea of Cortez, the quality of the water decreases. As a result, high salt

loadings have been a long-standing problem for stakeholders in the

lower Colorado and especially Mexico. As early as 1961, Mexico began

to worry publicly that high salinity levels were affecting crop yields in

the country’s Mexicali Valley.

After 12 years of negotiations and various interim agreements, a

solution was reached in 1973. Minute 242 of the 1944 Water Utilization

Treaty was signed to resolve the dispute over the deterioration in the

quality of water crossing the border. This minute stipulated that the

water received by Mexico should have salinity levels of 115 (±30) ppm

not higher than the water arriving at Imperial Dam just north of the border. In 1974, the US Congress passed the Colorado River Basin Salinity

Control Act to help meet the Minute 242 obligations. Among the measures authorized by the act were construction of a desalting plant at

Yuma, Arizona, as well as a 4,047-ha (10,000-acre) reduction in irrigable

land in the Wellton-Mohawk Irrigation District.

MEXICO AND THE UNITED STATES 97

106. Colorado River Basin Salinity Control Forum, Water Quality Standards for Salinity:

Colorado River System, Final Report, October 1993.
Although Minute 242 resolved most of the problem, the issue of

salinity has not yet been completely resolved. The current dispute centers on the fact that water quality standards are based on annual averages and do not take into account the significant fluctuations in salt

concentrations that occur on a monthly basis. Extremely high salinity

levels can have negative effects on crop yields, soil conditions and

aquatic ecosystem health.

4.6.3 Santa Cruz and San Pedro Basins

The Santa Cruz and San Pedro Rivers are part of the Colorado

River system whose basins overlap the US-Mexico border. Their

streamflow is negligible, however, and for purposes of transboundary

water management no agreement applies specifically to these rivers.

The legal regimes most relevant to water allocation in these two basins

include Arizona state law, US interstate compacts and Mexican federal

law (described in chapter 1). Transboundary agreements applicable to

water allocation have not been concluded for these two basins.

Arizona relies on the prior appropriation doctrine. Those who

developed or diverted surface water in Arizona prior to 1919 have senior

rights to that water so long as it is put to beneficial use. After 1919, water

rights could be obtained by applying for a permit for offstream beneficial use. Arizona law provides that “the waters of all sources, flowing in

streams, canyons, ravines or other natural channels, or in definite underground channels... belong to the public and are subject to appropriation

and beneficial use.” Beneficial uses under Arizona law include domestic, municipal, irrigation, stock watering, hydropower, recreation, wildlife (including fish), artificial groundwater recharge and mining.107

For many years it was not clear whether this language applied just

to surface water or also included groundwater.108 In 1953, the Arizona

Supreme Court (Bristor v. Cheatam) decided that the prior appropriation

doctrine did not apply to groundwater. Thus senior surface water rights

could be negatively affected by more recent groundwater pumping,

with no legal recourse for the holder of the surface water rights. This

legal separation of surface and subsurface water rights has had significant implications in the Santa Cruz and San Pedro watersheds.109

98 INLAND WATER MANAGEMENT REPORT

107. Arizona Department of Water Resources, Arizona Water Resources Assessment, Vol.

1, Inventory and Analysis, State of Arizona, 1994, 22.

108. J.D. Leshy and J. Belanger, “Arizona Law Where Ground and Surface Water Meet”,

(1988) 20 Arizona State Law Journal 657.

109. R.J. Glennon and T. Maddock III, “In Search of Subflow: Arizona’s Futile Effort to

Separate Groundwater from Surface Water”, (1994) 36 Arizona Law Review 567.
In 1988, a court decision granted surface water right holders protection from surface flow depletion due to groundwater extraction. By

acknowledging a link between surface and goundwater, the 1988 decision made groundwater users responsible for any significant surface

water depletion they may cause. A later court ruling (1993), however,

narrowed the responsibility of detrimental (or “negatively consequential”) groundwater extraction to include only those extractors located in

the riparian zone. The 1993 case linked surface water to “subflow”—a

term defined as groundwater flowing adjacent to or directly below a surface water body. As the court itself acknowledged, this ruling ignores

hydrological science, which has shown that groundwater pumping

some distance away from a river can interrupt or redirect flow that

would eventually reach the river.

Other legal issues in Arizona water management are associated

with the use of the Colorado River and litigation over various compacts

and congressional acts. In order to use its share of Colorado River water,

Arizona persuaded Congress to approve funding for the Central Arizona Project under the 1968 Colorado River Basin Project Act. CAP

involved the construction of a canal to bring water to southern Arizona

and was completed as far as Tucson in 1991. The water was originally

targeted for municipal and industrial use and to replace groundwater in

existing irrigation districts. CAP water is not supposed to be used for

new irrigation development, except on Native American lands.110

In addition to the legal restrictions, barriers to the actual use of

CAP water include cost and quality. In Tucson, the public perception of

poor water quality led to the passage of Proposition 200 in 1995. This

proposition forces CAP water to be used only for aquifer recharge or

other nonpotable uses. The costs of the project are to be repaid through

charges levied by the Central Arizona Water Conservation District,

which covers Pima, Pinal and Maricopa Counties. As discussed earlier,

in years when there is less than 9,250 Mm3 (7.5 MAF) of water in the

lower Colorado, the CAP rights are junior to the pre-1968 rights of Mexico, California and Arizona. Thus CAP water allocations are vulnerable

to low flows on the Colorado and to the overallocation of water under

the Colorado River Compact.

In 1988, Congress passed the San Pedro Riparian National Conservation Act, establishing the San Pedro Riparian National Conservation

Area (SPRNCA). SPRNCA consists of 22,663 ha (56,000 acres) of public

MEXICO AND THE UNITED STATES 99

110. R.J. Glennon, “Coattails of the Past: Using and Financing the Central Arizona Project”, (1995) 27 Arizona State Law Journal 677.
lands managed by the federal Bureau of the Land Management to protect the riparian area and associated aquatic, wildlife, archeological,

paleontological, scientific, cultural, educational and recreational

resources. The act explicitly reserved federal water rights for SPRNCA,

putting it in possible contention with all other water rights claimants in

the basin, including Native Americans, the US Department of Defense

and the burgeoning municipality of Sierra Vista.

Native American water rights are another major issue in southern

Arizona. A 1935 court case involving the Gila River (into which the Santa

Cruz and San Pedro Rivers flow) recognized that Native American lands

might hold prior appropriation rights. The US Supreme Court decision

Arizona v. Colorado held that the reserved rights of five Native American

reservations should be calculated on the basis of an amount of water necessary to irrigate “all practicably irrigable acreage” on each reservation.

In 1974, the Salt River Valley Waters Users Association requested the

adjudication of water rights on the Gila, and in 1981 this adjudication

was consolidated into a general adjudication of water rights for the

entire Gila basin. Among other issues being adjudicated are overappropriation of surface water in the Gila River, groundwater overdraft

and growing municipal water use.

This adjudication process continues, involving some 60,000 claimants and 12 Native American reservations. If the Native American water

rights are found to have seniority (dating from the date of the treaty,

executive order or act of Congress that established the reservation),

water allocations in southern Arizona could shift dramatically. Some

have suggested that CAP water could fill some of the demand. The first

region of the Gila for full adjudication will be the San Pedro.

As problems emerged with groundwater overdraft, and because

subsurface water was not subject to prior appropriation, it became clear

that Arizona needed to manage the groundwater upon which much of

the state depends. The Arizona Groundwater Management Act, often cited

as a relatively forward-looking groundwater management scheme

among western US states, was enacted in 1980. The Arizona Department

of Water Resources (ADWR), which also was created by the 1980 legislation, is charged with managing and developing the state’s water

resources.

The Groundwater Code, as implemented under the 1980 act, sets

out to control the severe overdraft and allocate limited resources effectively. It includes general provisions on well registration and has led to

the establishment of four “active management areas” (AMAs) in which

100 INLAND WATER MANAGEMENT REPORT
groundwater was being seriously depleted. Three of these AMAs—the

Pinal, Tucson and Santa Cruz-—lie in the Santa Cruz watershed. The

ADWR was directed to prepare a series of decade management plans for

each AMA, with progressively stricter regulations and conservation

objectives. One major goal of these AMAs is “safe yield” of the aquifers

by 2025 (balancing annual groundwater extraction against natural and

artificial aquifer recharge). For new subdivisions, the AMAs are

required to produce an “assured water supply” for 100 years.

There is no AMA for the San Pedro River basin. Groundwater is

regulated through a mix of pre-1980 statutes and common law.111 In the

San Pedro basin, groundwater users can pump an unlimited amount of

groundwater for “reasonable and beneficial” use. If one user’s pumping

affects the well of another user, the offending user may be required

to cease and pay damages through private tort actions. ADWR does

require that the construction, deepening and abandonment of wells be

reported to the agency, but it does not regulate the quantity or quality of

the water coming from the wells in the San Pedro basin. State law also

requires that a subdivision developer demonstrate to ADWR that it has

an adequate water supply.

4.6.4 Río Grande Basin

The legal framework governing the management of surface water

in the Texas/Mexico portion of the Río Grande basin is quite complex.

This complexity derives from several factors, including: the

transboundary and interstate nature of many of the basin’s water

resources, the legacy of different regimes that have governed the region,

and the role of various sectors with substantial political influence and

often competing interests.

Groundwater, by contrast, lacks a substantial legal management

framework, especially in Texas where landowners are free to pump

as much groundwater from under their land as they can use under

the long-standing “rule of capture.” Moreover, there is no agreement

between the United States and Mexico for management of transboundary groundwater resources.

The two US-Mexico treaties governing water resource management in the Texas/Mexico portion of the Río Grande are the 1906 Río

Grande Convention and the 1944 Water Utilization Treaty. Both treaties

MEXICO AND THE UNITED STATES 101

111. Arizona Department of Water Resources, Hydrographic Survey Report for the San

Pedro River Watershed, Vol. 1, General Assessment, State of Arizona, 1991.
apply to management of surface water only and generally do not

address surface water/groundwater connections.

The 1906 convention applies to distribution of Río Grande waters

above Fort Quitman, Texas. Its major features are guaranteed deliveries

of a total of 74 Mm3 (60,000 AF) per year at a point above Juárez according to a monthly schedule, and waiver by Mexico of any claims to the

waters of the Río Grande between the point of delivery and Fort

Quitman.

As described later in this section, the water allotted to the United

States is divided among Colorado, Texas and New Mexico pursuant to

the 1938 Río Grande Compact.

The 1944 treaty is more comprehensive, applying to other

transboundary waters in addition to the Río Grande and also governing

matters such as the maintenance of the boundary between the two countries. The pertinent legal features of the 1944 treaty regarding allocation

of the waters of the Río Grande watershed from Fort Quitman to the Gulf

of Mexico are described in the following table.

1944 Treaty Allocations for the Río Grande

Mexico United States

All waters reaching the main channel

of the Río Grande from the Río San

Juan and the Río Alamo, including the

return flow from the lands irrigated

from these two rivers.

All waters reaching the main channel

of the Río Grande from the Pecos and

Devils Rivers, Goodenough Springs

and the Alamito, Terlingua, San

Felipe and Pinto Creeks.

Two-thirds of the flow reaching the

main channel of the Río Grande from

the Ríos Conchos, San Diego, San

Rodrigo, Escondido and Salado, and

the Las Vacas Arroyo, subject to the US

right to an average of at least 432 Mm3

(350,000 AF) per year in cycles of five

consecutive years.

One-third of the flow reaching the

main channel of the Río Grande from

the Ríos Conchos, San Diego, San

Rodrigo, Escondido, and Salado, and

the Las Vacas Arroyo, provided that

this third shall not be less, as an average amount in cycles of five consecutive years, than 432 Mm3 (350,000 AF)

per year. The United States does not

acquire rights in the Mexican tributaries in excess of 432 Mm3 per year

except the right to use one-third of the

flow reaching the Río Grande from

these tributaries, although the

one-third may be in excess of 432 Mm3

per year.

102 INLAND WATER MANAGEMENT REPORT
One-half all other flows of the main

channel of the Río Grande not otherwise allotted, including contributions

from all unmeasured tributaries

between Fort Quitman and the lowest

major international storage dam (Falcon).

One-half of all the flows of the main

channel of the Río Grande not otherwise allotted by the treaty, including

contributions from all unmeasured

tributaries between Fort Quitman

and the lowest major international

storage dam (Falcon).

One-half the flow in the main channel

of the Río Grande below the lowest

major international storage dam (Falcon), unless it is specifically allocated

under the treaty to either of the two

countries.

One half of the flow in the main channel of the Río Grande below the lowest international storage dam (Falcon)

unless it is specifically allocated

under the treaty to either of the countries.

The 1944 treaty contains few provisions for water management

and allocation during times of drought. The treaty, which includes, but

does not define the term extraordinary drought, provides that if there is

abundant water in one country while the other one is experiencing an

“extraordinary drought,” “water stored in the international storage reservoirs and belonging to the country enjoying such abundant water supply may be withdrawn, with the consent of the International Boundary

and Water Commission (IBWC) for use of the country undergoing the

drought.” It also provides that if an “extraordinary drought” prevents

Mexico from being able to deliver the 432 Mm3 per year average from

its tributaries, “any deficiencies existing at the end of the aforesaid

five-year cycle shall be made up in the following five-year cycle with

water from the measured tributaries in which the US has the right to a

1/3 share.”

In 1995, during a prolonged drought that was threatening Mexico’s water supply, IBWC concluded Minute 293, which provided for an

emergency water loan from the United States. Although Minute 293 was

never brought into force, it established a coordinated drought planning

process for Texas and Mexico that could be used in the future.

IBWC is responsible for implementing the 1906 convention and the

1944 treaty. It also operates the Amistad and Falcon International Reservoirs on the main channel of the Río Grande. The US share of the water

from the Río Grande basin is managed by the Texas Natural Resource

Conservation Commission (TNRCC) through the Río Grande

Watermaster program.

Two US interstate compacts also are relevant to the Río Grande

basin. The Río Grande Compact of 1938 provides for distribution of the

US share of the waters of the Río Grande among Colorado, New Mexico

MEXICO AND THE UNITED STATES 103
and Texas, above Fort Quitman, Texas. The compact includes schedules

for carrying out Colorado’s obligation to deliver water at the Colorado-New Mexico state line and the obligation of New Mexico to deliver

water to Elephant Butte Reservoir, from where it is transferred to downstream users in New Mexico and Texas. The provisions of the compact

allow for certain accrued credits and debits between states, but these

provisions have produced a long-standing controversy and lengthy litigation.112

Like the 1944 Treaty, the Río Grande Compact deals only with surface water allocation. It thus is ill-suited to deal with groundwater/surface water interactions in the Texas/New Mexico border region.

The 1948 Pecos River Compact between Texas and New Mexico

governs the allocation of the Pecos River basin above its confluence with

the Río Grande. The compact provides that New Mexico must deliver to

Texas, subject to streamflow and other conditions, the same amount of

flow that Texas received from the Pecos in 1947. It provides for a cooperative program designed to salvage water from consumption by

phreatophytes (water-consuming vegetation) and to alleviate high

salinity in certain areas of the basin.

Management and allocation of the US share of Río Grande waters

in Texas are governed largely by Texas state law.113 Texas law also governs use of groundwater resources. Federal law is relevant to at least two

aspects of surface water management in the basin, however: federal conservation requirements govern irrigators using water from the Río

Grande Project (Elephant Butte/Caballo system), and instream flow

rights apply to the federally designated Wild and Scenic River section of

the Río Grande below Big Bend National Park.

With few exceptions, surface water in Texas is the property of the

state. Water rights, which are granted and administered by the Texas

Natural Resource Conservation Commission, specify the amount of

water that can be used, where it can be used, and for what purpose. In

general, Texas uses a system of prior appropriation, but through a process of water rights adjudication114 it also recognizes riparian and other

rights.

104 INLAND WATER MANAGEMENT REPORT

112. For a brief description on this litigation, see F. Skillern, Texas Water Law, Vol. 2, San

Antonio: Sterling Press, 1991, 285-86.

113. It is beyond the scope of this report to provide a detailed description of Texas surface water law. For a comprehensive discussion see ibid., Vol. 1 and 2.

114. Texas Water Code, Sections 11.301-11.341. In this process, all water rights claimants

are required to file their claims with the state water rights agency (TNRCC). The
In Texas, a water right is a real property right and therefore cannot

be removed by the state without compensation to the water rights

holder.115 Because they are property rights, water rights can be sold,

leased or transferred. For such sales and transfers, the conditions

included in the permit (point, amount and purpose of use) still apply

unless a change in these conditions is sought from and granted by

TNRCC.

A large share of irrigation water rights in the Texas portion of the

Río Grande are held and managed by special districts. These government entities include irrigation districts and water improvement districts. Over 30 such districts can be found in the lower Río Grande. Some

also supply water to municipal and industrial users.

Texas state law provides that surface water rights are subject to a

“beneficial use” requirement. Beneficial use is broadly defined and the

courts have never ruled any use to be nonbeneficial.116 There is some

controversy in Texas over whether a water right can be held solely to

preserve instream flow, with some arguing that such a purpose is not a

“beneficial use.” Others argue that instream flow is a beneficial use,

because it preserves important aquatic and/or riparian habitats.

In the 1985, the Texas Water Code was amended to take into

account conservation and environmental needs. Before the 1985 amendments, the term conservation in Texas water law generally referred only

to the development of water resources. Now, however, the concept

includes notions of efficiency of use, as well as preservation of water

quality. Applicants for new or amended water rights permits are now

required to submit water conservation plans as part of their application

to TNRCC. These plans are to “demonstrate that reasonable diligence

will be used to avoid waste and achieve water conservation.”

MEXICO AND THE UNITED STATES 105

agency evaluates the claims and then holds an administrative hearing to determine

which are valid and which are not. The amount and place of use are also adjudicated. The final results are filed with the courts for approval, and parties can appeal

agency decisions through this judicial validation process.

115. Texas Water Code, Section 11.033. There is substantial confusion about whether the

1931 Texas statute known as the Wagstaff Act might allow municipalities to acquire

agricultural or other rights without compensation, but this act does not apply to the

Río Grande. See “Texas Municipalities’ Thirst for Water: Acquisition Methods for

Water Planning”, (1993) 45 Baylor Law Review 685.

116. Texas Water Code, Section 11.002(14). Beneficial use is defined as “the amount of

water which is economically necessary for a purpose authorized by this chapter,

when reasonable intelligence and reasonable diligence are used in applying the

water to that purpose.”
These conservation rules allow TNRCC to require irrigators who

transfer part of their water rights to municipal users to submit water conservation plans for the rest of their irrigation water. This is expected to be

particularly important in the lower Río Grande, where conservation

practices have not yet been widely adopted by irrigators.

In 1997, the Texas legislature passed a major water resources management bill. This act, which was motivated largely by the problems

caused by a recent drought, strengthens conservation and drought planning requirements, and provides for the development of regional water

management plans. For purposes of conservation, those holding municipal, industrial or other surface water rights in excess of 1.23 Mm3 (1,000

AF) per year, and those holding irrigation rights in excess of 12.3 Mm3

(10,000 AF) per year are required to develop and implement water conservation plans. Wholesale and retail public water suppliers and irrigation districts also are required to prepare drought contingency plans.

Finally, the 1997 legislation makes cancellation of unused water rights

somewhat easier, establishes more specific guidelines for water reuse

projects and expands provisions for surface water rights marketing.

For groundwater, Texas relies on the English common law doctrine of absolute ownership. Under this doctrine, the surface estate

owner has ownership rights to all the groundwater he can pump for use

at any location; he bears no responsibility to neighboring landowners.

Texas is the only state that still adheres to this approach.117

The Texas Water Code does provide, however, that the state may

act (through TNRCC) to “make and enforce rules and regulations for

conserving, protecting and preserving, and distributing underground,

subterranean, and percolating water” and to “do all things necessary for

these purposes.” Despite this broad language, TNRCC and its predecessor agencies have done little to restrict pumping from overexploited

aquifers.

Groundwater management has been confined to those areas where

groundwater management districts have been formed by the legislature,

through local petition or through TNRCC initiation of a “critical area”

designation.118 These districts are authorized to regulate pumping from

106 INLAND WATER MANAGEMENT REPORT

117. Houston & T.C. Railway v. East, 81 SW 279 (Tex. 1904). For an overview of the problems caused by this doctrine, see D. Todd, “Common Resources, Private Rights and

Liabilities: A Case Study on Texas Groundwater Law”, (1992) 32 Natural Resources

Journal 233.

118. In the latter process, TNRCC and the Texas Water Development Board carry out a

study, with the involvement of local interests, to determine whether the ground-
wells to protect aquifer levels, but most created to date have not exercised this authority. In spite of the recognition that some areas are facing

critical problems, there are no groundwater conservation districts in the

Texas portion of the Río Grande basin.

MEXICO AND THE UNITED STATES 107

water problems in an area are critical. If they are, TNRCC may propose creation of

an underground water conservation district to manage the groundwater resource,

but local landowners can still vote on whether to create the district. If the proposed

district is voted down, the state can withhold funds for water development or

wastewater treatment projects.

CHAPTER 5

The United States and Canada: The Binational

Water Management Framework

Several binational agreements between the United States and Canada govern boundary and transboundary surface water management

(see table below). Among the most important of these are the 1909

Boundary Waters Treaty, the Columbia River Treaty (1961), and the

Great Lakes Water Quality Agreement (1978). These agreements and the

institutions that have been established to administer them are described

in the following sections.

US-Canada Boundary Water Arrangements

Although this chapter focuses primarily on the International Joint

Commission and its related mechanisms, several bilateral government-to-government mechanisms and province-state arrangements

also have a long history of dealing with boundary and transboundary

water-related issues. According to Environment Canada, bilateral and

109

Treaties

• Boundary Waters Treaty, 1909

• Niagara River Treaty, 1950

• Columbia River Treaty and

Protocol, 1961 and 1964

• Skagit River Treaty, 1984

Conventions

• Lake of the Woods Convention

and Protocol, 1925

• Rainy Lake Convention, 1938

• Convention on Great Lakes

Fisheries, 1955 (Great Lakes

Fisheries Commission)

Agreements

• St. Lawrence Seaway

Agreement, 1959

• Great Lakes Water Quality

Agreements, 1972 and 1978

• Water Supply and Flood

Control in the Souris River

Basin, 1989
province-state mechanisms appear to be taking on greater importance.

Examples of such mechanisms include the Garrison Consultative Group

and its Joint Technical Committee and the bilateral monitoring committees for the Poplar River, Souris River, Great Lakes Commission and St.

Croix Waterway.

5.1 The Boundary Waters Treaty and the International Joint

Commission

By the beginning of the 20th century, concerns had begun to

emerge about the waters flowing along the US-Canada border. These

included controlling water levels at Lake of the Woods, power developments on the St. Marys and Niagara Rivers, and conflicting plans for

diverting irrigation water from the St. Mary and Milk Rivers of Alberta

and Montana.119 Discussions in Washington and in London, which

made all foreign affairs decisions on behalf of Canada at the time, were

not able to resolve these issues. In response, the countries began to

develop a new institutional mechanism to deal with binational water

issues.

The International Waterways Commission was established in 1905

to provide advice on the Great Lakes-St. Lawrence system. Commissioners from both countries recommended general principles to be followed in resolving binational disputes. The resulting Boundary Waters

Treaty, signed by Great Britain and the United States in 1909, was a

far-reaching document that, among other things, created the International Joint Commission (IJC).

The 1909 treaty provided the principals and mechanisms to help

resolve disputes over boundary and transboundary waters and prevent

future ones. It dealt with a variety of issues involving boundary and

transboundary surface waters, providing for joint studies and establishing requirements for the approval of certain uses, obstructions and

diversions in waters that affected levels or flows in the other country.

The treaty also contained a provision against any pollution that would

result in “injury of health or property” on the other side of the boundary.

In establishing “rules of principles” to govern decisions on uses,

obstructions and diversions, the 1909 treaty:

110 INLAND WATER MANAGEMENT REPORT

119. J.L. Huffman, “A Brief History of North American Water Diplomacy”, in Continental Water Marketing, Terry L. Anderson, ed., San Francisco: Pacific Institute for Public Policy, 1994, 12-13.
• instituted a hierarchy of uses, giving primacy to domestic and

sanitary needs, followed by navigation and then irrigation and

power production;

• protected the freedom of navigation for the purpose of commerce of all navigable boundary waters, Lake Michigan and all

canals connecting boundary waters;

• directed that each country shall have equal and similar rights in

the use of waters that flow along the boundary; and

• allowed the upstream country the exclusive jurisdiction and

control over the use and diversion of all waters, on its own side

of the boundary, which in their natural channels would flow

across the boundary or into boundary waters. However, in the

case of any interference with or diversion from the natural

channels of such waters, and if such interference or diversion

resulted in injury on the other side of the boundary, it gave the

injured parties the same rights and legal remedies due them as if

such injury had taken place in the country where such diversion

or interference occurred.

The IJC’s six commissioners, three from each country, are obligated to pursue the joint or common interest of both nations rather than

adopt a nationalist perspective on each question. The IJC attempts to

seek consensus in making decisions in an effort to forge common solutions.

The IJC has two basic functions. First, it approves remedial or protective works, dams or other obstructions that raise the natural level of

waters in the upstream country, except in cases in which the parties have

a special agreement. The commission also sets terms and conditions for

the operation of projects as well as any obligations for compensation.

Second, The IJC investigates and makes recommendations on questions

or disputes referred to it by either or both governments. In practice, this

has meant that the commission investigates matters that are agreed to by

both governments.

In addition, the commission was given an arbitral function which

to date it has not been asked to exercise. Although not a direct responsibility, the IJC also alerts the public about transboundary water and air

issues, and monitors water quality and quantity under certain specific

references and agreements, most notably the Great Lakes Water Quality

Agreement.

THE UNITED STATES AND CANADA 111
Since it began its work in 1912, the IJC has built an enviable reputation as an institutional mechanism for cooperative problem solving on a

wide range of water- and boundary-related issues. The commission has

seen its role enhanced or further defined through several additional

treaties, agreements and protocols, including the Lake of the Woods

Treaty of 1925, the Niagara River Treaty (1950), the Columbia River

Treaty of 1961 (see section 5.2), and the Great Lakes Water Quality

Agreements of 1972 and 1978 and their supplementary protocols. Moreover, numerous decisions on applications related to the use of boundary

waters have been handled by the commission, which has 116 dockets for

references and orders.

Most observers agree that the IJC’s reputation as an effective

instrument of binational water management stems from: (1) the principle of legal equality in the representation of the two countries on the

commission and its practice of arriving at decisions by consensus or near

consensus reflecting binational rather than strictly national concerns; (2)

a high level of practical autonomy from government interference that

enhances its authority and investigative independence; and (3) its comprehensive operational procedures for conducting investigations in

response to government references, or in the issuance, implementation

and amendment of orders. Since the outset, the IJC has sought to achieve

a high level of consensus and to avoid national partisanship. Indeed, its

decisions have rarely split along national lines, contributing to its image

as an objective and impartial arbiter.

The IJC’s operational procedures deserve special mention. Possessing a small secretariat and professional staff, the commission is

authorized to “call upon the best qualified technical experts and officials” from various levels of government and the private sector in both

countries. This expertise is accessed by the commission through several

investigative boards, some temporary and some permanent, normally

made up of equal numbers of Canadian and US representatives and

chaired by representatives of both countries (see table). The procedural

practices of the commission and its boards have contributed to the IJC’s

reputation for fairness and effectiveness in decision making.120 Among

other things, they conduct local hearings and encourage public participation to help clarify issues and resolve problems.

Over the years the IJC has had a significant impact on binational

water management practices in three functional areas: (1) oversight of

water apportionment, (2) management of water levels, and (3) oversight

of quality of transboundary waters. The IJC also assists the United States

112 INLAND WATER MANAGEMENT REPORT
and Canada in carrying out certain binational projects on the protection

of transboundary air quality. Although this is an important IJC role, it is

smaller than the IJC’s many diverse responsibilities in the area of boundary waters. The commission’s role in each of the three functional areas of

binational water management practices is reviewed briefly in the sections that follow.

5.1.1 Water Apportionment Oversight

Important in the commission’s early years, overseeing apportionment of boundary and transboundary water resources is now only one

of several elements of the IJC’s agenda. The commission’s most specific

water apportionment functions derive from Article VI of the 1909 treaty,

which specifies the division of the waters of the St. Mary and Milk

Rivers. After conflicting interpretations of Article VI emerged in the

early 1920s, the two governments agreed to establish the St. Mary and

Milk Rivers Board at the suggestion of the IJC. The board, comprising an

engineer from each country, operates under IJC oversight, advising

national water management authorities on the placement of gauging

stations and assigning seasonal water deliveries. The IJC’s instrumental

role in resolving this binational water dispute helped to galvanize public

and government confidence in the commission at an early date.

Almost all of the orders issued by the IJC are related to apportionment arrangements. For example, the IJC currently oversees the apportionment stipulated in an agreement among Saskatchewan, Manitoba

and North Dakota (Agreement for Water Supply and Flood Control in

the Souris River). The commission also has issued orders about the

apportionment of water in the St. Marys River at Sault Sainte Marie,

Michigan, and assisted governments in apportioning the Poplar River.

THE UNITED STATES AND CANADA 113

120. W.R. Willoughby, The Joint Organizations of Canada and the United States, Toronto:

University of Toronto Press, 1979, 56-57.
US-Canada Boundary Water Institutions (Water Boards)

114 INLAND WATER MANAGEMENT REPORT

The following boards report to the International Joint Commission:

Water Quantity Boards

• Accredited Officers for the St.

Mary and Milk Rivers, 1914

• International Lake Superior

Board of Control, 1914

• International St. Croix River

Board of Control, 1915

• International Lake of the Woods

Board of Control, 1925

• International Lake Champlain

Board of Control, 1937 [inactive]

• International Kootenai Lake

Board of Control, 1938

• International Columbia River

Board of Control, 1941

• International Rainy Lake Board

of Control, 1941

• International Osoyoos Lake

Board of Control, 1946

• International Niagara Board of

Control, 1950

• International St. Lawrence River

Board of Control, 1952

• International Souris River Board

of Control, 1959

Pollution Boards

• International Advisory Board on

Pollution Control–St. Croix

River, 1962

• International Rainy River Water

Pollution Board, 1966

• International Red River Pollution

Board, 1969

• Great Lakes Water Quality

Board, 1972

Advisory Boards

• Great Lakes Science Advisory

Board, 1978

• International Air Quality Advisory Board, 1978

Investigative Boards

• International Souris-Red River

Engineering Board, 1948

• International Technical Information (Network) Board, 1979

[inactive]

• Flathead River International

Study Board, 1985 [inactive]

• Red River Flood Study Board

(to be established under 1997

IJC reference)

The following bilateral boards

report to the Canadian and

US governments:

Control Boards

• International Lake Memphremagog Levels Board, 1920

Pollution Boards

• Canada-United States Committee

on Quality in the St. John River,

1972

• Poplar River Bilateral Monitoring Committee, 1980

• Souris Basin Bilateral Water

Quality Monitoring Group, 1991

Treaty Boards

• International Niagara Committee, 1955

• Columbia River Permanent Engineering Board, 1964

Study Boards

• Canada-United States Garrison

Consultative and Technical Committee, 1981

• Niagara River Toxics Committee,

1981
5.1.2 Water Levels

Since its inception, the IJC has played a central role in advising on

management of competing water uses, because they affect water levels

in boundary waters. Under Article III of the 1909 treaty, the commission

must authorize any “uses or obstructions or diversions... affecting the

natural level or flow of boundary waters.” Article VIII gives water uses

for domestic and sanitary purposes priority over uses for navigation.

Uses for power and irrigation receive lowest priority.

Operating in its quasi-judicial capacity under Articles III, IV and

VIII of the 1909 treaty,121 the IJC has over the years addressed a range of

issues involving water levels and flows. In the Great Lakes-St. Lawrence

River basin alone, these include:

• Detroit River and St. Marys River flow questions (1912 and 1913,

respectively);

• St. Clair River flows (1916);

• Great Lakes-St. Lawrence hydroelectric power questions (1918)

and navigation (1920);

• Niagara River navigation (1925);

• Niagara Falls preservation of natural beauty (1950);

• Lake Ontario levels and St. Lawrence power (1952);

• Niagara Falls remedial work (1961) and shoal removal (1963);

• Lake Erie and Niagara River ice booms (1964);

• general Great Lakes levels (1964);

• American Falls on the Niagara River (1967);

• Raisin River power diversions from the St. Lawrence (1968); and

• Lake Erie regulation, Great Lakes diversions and consumptive uses

studies, and Great Lakes Advisory Board activities (1977).

Many issues involving water levels have arisen in the Great Lakes,

where a wide range of competing uses are present. Shipping is a major

concern; 150 billion tonne-kilometers of freight pass through the Great

THE UNITED STATES AND CANADA 115

121. Article IX allows the IJC to act in an investigative and advisory capacity when

responding to references, but this article is not usually interpreted as conferring a

quasi-judicial power on the IJC.
Lakes system annually. The Great Lakes also provide significant hydroelectric power resources for both countries, and the shoreline property is

dotted with ports and marinas, industrial facilities, residential dwellings and recreational areas, all of which are affected by changing water

levels. Finally, the fish and other wildlife that depend on streams and

wetlands within the Great Lakes system also are affected by water levels.

Natural fluctuations in water level occur on a seasonal basis, but

the two countries are limited in their capacity to influence lake levels

through existing works and diversions. Numerous diversions and other

works have been constructed for irrigation, flood control, hydropower

and navigation improvements. The growing urbanization of the

lakeshore is an important trend contributing to the increasing demands

on Great Lakes water to satisfy domestic requirements within the basin.

Withdrawals for domestic uses, permissible under the 1909 treaty, may

collectively affect lake levels over the long term.122 Other larger diversions have been proposed to export water from the Great Lakes basin.

Such threats prompted the US Great Lakes states, together with Ontario

and Quebec, to initiate in 1985 a process of protecting lake levels through

the Great Lakes Charter.

The IJC has established various permanent boards to oversee

implementation of the requirements of its orders of approval. Among

other things, these boards monitor and make recommendations for

managing lake levels. In general, these IJC boards have recommended

against additional diversions that would modify lake levels. The International Great Lakes Diversions and Consumptive Uses Study Board,

established by reference in 1977, concluded in its 1981 report that:

a. No further consideration be given to the concept of managing

Great Lakes levels and outflows through the manipulation of the

existing diversions; and,

b. The IJC...recommends to Governments that a mechanism be established for institutional consultation so that monitoring can be

undertaken and appropriate public policies can be formulated to

address the potential future impacts of new or increased diversions and consumptive uses.

In 1986, a high-water crisis prompted the governments to ask the

IJC to examine the effects of fluctuating water levels. The final report,

116 INLAND WATER MANAGEMENT REPORT

122. A.E. Utton, “Canadian International Waters”, in Waters and Water Rights, Vol. 5,

Robert E. Beck, ed., Charlottesville, VA: Michie,1991, 66-67.
issued in 1993, recommended that governments continue to use, and

promote the use of, the ecosystem approach in managing water levels

and flows in the Great Lakes-St. Lawrence River basin; encouraged

continued public involvement; and recommended continued shoreline

monitoring, including a wetlands inventory.

Although proposed new diversions have not been authorized, the

development of a more formal consultative mechanism has been slow in

coming. Some critics, concerned about the lack of consensus on the

long-term management of water levels, point to the increasing consumptive uses of Great Lakes water and potential systemic influences

like climate change to argue for the development of a better institutional

mechanism for dealing with diversions and levels questions into the 21st

century.123

The IJC has been very active in regulating water levels in several

areas along the US-Canada border outside of the Great Lakes system.

The commission has issued orders and reports under reference that

address water level and flow issues in the St. Croix River, upper Rainy

River (Sucker Lake), Shoal Lake, the Souris River, the Poplar River, the

Okanogan River and Osoyoos Lake, Kootenai Lake and the Kootenai

River, the Pend Oreille River and the Columbia River.

In order to administer flows and levels along these various boundary waters, the IJC has established a system of permanent boards (see

table) that oversee implementation of commission orders. However, the

IJC retained jurisdiction over these orders so that it could review and, if

necessary, amend them.

One fairly recent and notable example can be found in the Rainy

Lake watershed on the Ontario-Minnesota border. Here, the commission operates under authority of the 1938 Rainy Lake Convention, which

provides for the regulation of water levels to prevent unnecessary flooding of contiguous land surface areas. The IJC, through its International

Rainy Lake Board of Control, recently reviewed its order for emergency

regulation of boundary waters in the Rainy Lake watershed in response

to various concerns raised over the years about navigation, aquatic vegetation, fish and wildlife, tourism and shoreline property.124

THE UNITED STATES AND CANADA 117

123. R.D. Kreutzwiser, “Water Resources Management: Canadian Perspectives and the

Great Lakes Water Levels Issue”, in Resource and Environmental Management in Canada, Toronto: Oxford University Press, 1995, 259-285.

124. J. Chandler and R. Koop, “International Joint Commission to Review Water Levels

Regulation in Rainy Lake Watershed”, (1995) Focus 21-22.
5.1.3 Water Quality

During the last two decades, the commission’s most important

area of functional expansion has been water quality. The basis for the

IJC’s water quality functions is found in Article IV of the 1909 Treaty

which provides that “the waters defined as boundary waters and waters

flowing across the boundary shall not be polluted on either side to the

injury of health or property on the other.” Although Article IV does not

mention the IJC directly, the commission has been given several references, pursuant to Article IX of the treaty, which have required it to

advise the governments on the application of the obligation in Article IV.

Pursuant to Article VIII, the commission, when issuing orders of

approval, must consider interests that may be injured, which are now

recognized to include environmental interests.

With the exception of a 1912 reference to study pollution in boundary waters, the IJC’s forays into water quality management were relatively minor until the early 1960s. Since then, the commission has

surveyed pollution trends pursuant to references provided under Article VIII of the 1909 treaty in various boundary waters, including the St.

Croix and St. John Rivers, the Rainy Lake system and the Red River.

However, most of the attention to water quality issues has centered

on the Great Lakes and its tributaries. In 1964, the two countries, motivated by deteriorating conditions in the lower Great Lakes, referred the

question to the IJC. The commission’s report led directly to the Great

Lakes Water Quality Agreement (GLWQA) of 1972. The primary goal of

the 1972 accord was to control the process of eutrophication in the lower

Great Lakes by concentrating on the management of phosphorous. It set

water quality objectives and regulations for the control of toxic substances discharged to lake waters. The agreement specified action in

four areas: (1) regulations to control mercury and heavy metals; (2) regulations aimed at eliminating toxic organic contamination; (3) pesticide

regulations; and (4) regulations aimed at controlling oil pollution and

other toxic substances.

The 1972 GLWQA amplified the IJC’s functional responsibilities in

several ways. Under the agreement, the commission was made responsible for surveillance of water quality, monitoring compliance with

US-Canada agreements, recommending improvements to the governments, coordinating joint activities, reporting on water quality problems, submitting annual progress reports, and independently verifying

data submitted by the governments. The agreement also established two

permanent boards to assist the IJC in implementing the agreement: the

118 INLAND WATER MANAGEMENT REPORT
Great Lakes Water Quality Board and the Research Advisory Board.

Additional references related to the 1972 agreement established the

Upper Great Lakes Reference Group and the Pollution from Land-Use

Activities Reference Group. A Great Lakes Regional Office was authorized and established in 1973 at Windsor, Ontario, to provide permanent

administrative and technical support to the boards and groups implementing the IJC’s references.

In 1978, the two countries developed the second Great Lakes Water

Quality Agreement, in part with the help of the IJC. The 1978 agreement

widened the regime’s focus on boundary waters to embrace a precedent-setting “ecosystem approach” to water quality management

within the basin. In this context, an ecosystem approach is understood to

mean “adopting a basin wide, long term perspective which includes taking account of the impacts of all man’s activities on the natural and socioeconomic systems of the Great Lakes basin.125”

The 1978 GLWQA further enhanced the IJC’s jurisdiction and

functions, focusing more explicitly on the discharge of persistent toxic

substances and aiming at zero discharge. The IJC’s 1972 data collation,

analysis and dissemination mandate was expanded from boundary and

tributary waters to include “tributary waters and other sources” related

to assistance and advice on “research in the Great Lake basin ecosystem.” The Water Quality Board was upgraded to principal adviser to the

IJC with the support of the Science Advisory Board. The role of the Great

Lakes Regional Office was defined as serving as “a secretariat to the

boards” and carrying out “the commission’s public information programs for the Great Lakes.126”

An additional protocol in 1987 broadened the scope of the agreements to address three additional concerns: the airborne deposition of

toxic pollutants in lakes, groundwater, and contaminated sediments.127

The 1987 protocol also incorporated the IJC’s proposed approaches

to ameliorating critical water quality problems through the Remedial

Action Plan (RAP) and Lakewide Management Plan (LAMP) processes,

and gave the commission the authority to oversee and review such projects. However, the implementation and operational responsibilities for

these projects were left to the governments.

THE UNITED STATES AND CANADA 119

125. International Joint Commission, Pollution in the Great Lakes Basin from Land Use

Activities: An IJC Report to the Governments of the United States and Canada, Windsor,

ON, March 1980.

126. D.G. LeMarquand, “Preconditions to Cooperation in Canada-United States Boundary Waters”, (1986) 26 Natural Resources Journal 237.

127. R.A. Liroff, “The Great Lakes Basin: A Great Resource at Risk”, (1989) 5Conservation

Foundation Newsletter 1-12.
Under IJC guidance, researchers and policy makers have

addressed water quality issues in the Great Lakes ecosystem principally

by identifying “areas of concern,” establishing LAMPs, and developing

local RAPs to address the problems identified. Some 43 areas of concern

have been identified, virtually all in urbanized areas. To date,

Collingwood Harbour, located on the southeastern end of Georgian Bay

(Lake Huron), is the only de-listed area of concern.

The RAP and LAMP processes were built into the 1987 GLWQA,

which provided for the preparation of Remedial Action Plans through

procedures appropriate to each country. LAMPs have been developed

for each of the Great Lakes, except for Lake Michigan. These plans are

designed to reduce loadings of critical pollutants in order to restore beneficial uses. The RAP procedures involve public meetings of interested

parties within each area of concern and a rigorous IJC review at each of

three stages: (1) problem definition and specification of long-term objectives; (2) identification of measures required for implementation; and (3)

achievement of specified objectives. Throughout the process of developing the different RAPs and LAMPs, the IJC has emphasized the “ecosystem approach,” including health issues. In the late 1990s, most of the

RAPs were still working on stages 1 and 2.

In keeping with the objective of the GLWQA to restore and protect

the Great Lakes, Environment Canada and the US Environmental Protection Agency adopted the Binational Toxics Strategy in 1997. This

strategy sets forth a collaborative process by which Environment Canada and EPA, in consultation with other federal departments and agencies, the Great Lakes states, the province of Ontario, tribes, and First

Nations, will work with their public and private partners toward the

goal of virtually eliminating persistent toxic substances resulting from

human activity, particularly those that bioaccumulate, from the Great

Lakes basin in order to protect and ensure the health and integrity of the

Great Lakes ecosystem.

The IJC’s biennial meetings, which provide opportunities for people to express their views to the commission on Great Lakes quality

issues, and reports on Great Lakes water quality have been effective

tools for drawing public attention to Great Lakes water quality problems

and garnering public support for IJC recommendations. The IJC’s Sixth

Biennial Report (1992), for example, recommended that the two governments develop timetables to “sunset the use of chlorine and chlorinecontaining compounds as industrial feedstocks.” The recommendation

was not accepted, but the initiative received widespread public attention and served as a means of educating the public. The Seventh Biennial

120 INLAND WATER MANAGEMENT REPORT
Report (1994) called for a “major shift in the way decision-making takes

place for the Great Lakes ecosystem” and for the adoption of “a clear and

comprehensive action plan to virtually eliminate toxic substances that

are threatening the human health and the future of the Great Lakes ecosystems.”

5.1.4 Air Quality

The IJC’s role in assisting the governments to manage air quality

stems from a 1966 reference on air pollution, which was issued pursuant

to Article IX of the 1909 Boundary Waters Treaty. Article IX states: “The

Commission is also requested to take note of air pollution problems in

boundary areas. . . . If at any time the Commission considers it appropriate to do so, the Commission is invited to draw such problems to the

attention of both Governments.”

This part of the 1966 reference is, in effect, a variant of the commission’s more general “alerting” mandate under which the IJC draws to

the attention of governments matters of potential interest (to governments) that it encounters in the course of its normal activities. This development eventually led to the establishment of the IJC’s International Air

Quality Advisory Board.

In 1988, the governments asked the commission to commence

work under a 1975 reference on air quality in the Detroit-Windsor and

Port Huron-Sarnia areas. The 1978 Great Lakes Water Quality Agreement, as amended, authorized the IJC to examine, report and advise on

the governments’ commitments under Annex 15 of the agreement with

respect to airborne toxics.

A very important air pollution issue in US-Canada relations is acid

deposition, or acid rain. In spite of its importance, the IJC’s role in this

area has been very limited. Regional SO2 and NOX emissions are a

source of acid deposition in eastern Canada. Beginning in the early

1970s, the IJC, acting on the authority of its standing reference and its

mandate to monitor and improve water quality in the Great Lakes,

warned of the dangers of acid deposition arising from the long-range

transport of air pollutants. In 1979, the IJC’s Science Advisory Board recommended the commission establish “an integrated acid precipitation

program for the Great Lakes” stressing the systematic collection of scientific data and an emphasis on public education about the causes and

effects of acid rain. The IJC Air Pollution Advisory Board also argued for

an IJC role in managing acid rain. In the end, however, the regulatory

and economic implications, including the possibility that coal-fired

THE UNITED STATES AND CANADA 121
power plants in the United States would have to be closed or modified,

led the two governments to opt instead for conventional diplomatic

approaches to settling the controversy.128

In 1991, the United States and Canada signed the Air Quality

Agreement (AQA), which serves as an instrument for responding to

problems and working toward solutions on acid deposition in northeastern North America and other priority air quality protection issues.

In addition to establishing in 1991 a new role for the IJC to assist with certain AQA work, the United States and Canada continue to rely on the

IJC’s assistance under the Great Lakes Water Quality Agreement on air

toxics and on contributory work by the IJC International Air Quality

Advisory Board. This US-Canada-IJC careful division of labor on air pollution and air quality protection is an important element of the larger

US-Canada relationship for the protection of human health, water quality and shared ecosystems along the extensive border.

5.2 Columbia River Treaty

The Treaty between Canada and the United States of America

Relating to Cooperative Development of the Water Resources of the

Columbia River basin, better known as the Columbia River Treaty, was

signed in Washington on 17 January 1961 (also see section 5.3.2). The

treaty was not ratified and did not enter into force, however, until 16

September 1964, after the parties had agreed on a protocol to the treaty

and negotiated a 30-year sale to the United States of Canada’s entitlement to downstream power benefits.

The Columbia River Treaty is intended to improve flood control

and maximize hydropower generation in both countries. Implementation of the treaty involved the construction of three dams on the Canadian side of the border in British Columbia: Duncan, Keenleyside and

Mica. As compensation for building the dams, Canada was entitled to

one-half of the additional power that could be produced by American

hydroelectric plants downstream.

In a Canadian concession, the United States acquired the option to

build a dam on the Kootenai River near Libby, Montana, for hydroelectric generation and flood control. When full, the Libby Dam reservoir

122 INLAND WATER MANAGEMENT REPORT

128. R. Leslie, “The Long Road Towards Influence: Canada as an American Interest

Group”, (1993) 2 Journal of Borderlands Studies 12-32; and V.L. Golich and T.F. Young,

“Resolution of the United States-Canadian Conflict over Acid Rain Controls”,

(1993) 2 Environment and Development 63-109.
backs up water 70 km (42 miles) into Canada. Completed in 1973, the

dam provides hydroelectric power and flood control benefits to both

countries.

Canada and the province of British Columbia entered into agreements in 1963 and 1964 whereby they agreed that all proprietary rights,

title and interests arising under the treaty (including downstream power

benefits accruing to Canada under the treaty) would belong to British

Columbia. The province undertook to perform Canada’s obligations

under the treaty, including the construction, operation and maintenance

of the Canadian treaty dams and reservoirs. Canada and British Columbia agreed that British Columbia Hydro and Power Authority (BC

Hydro) would be the entity designated to carry out the operating

arrangements necessary to implement the treaty. The position of US

entity is held jointly by Bonneville Power Administration (BPA) and the

US Army Corps of Engineers. BPA is responsible for marketing the

power from treaty projects, and the Corps of Engineers handles flood

control and operation of the Libby Dam and other works in the Columbia River basin.

In January 1964, Canada and the United States agreed on the terms

of sale for Canada’s share of the downstream benefits. Under these

terms, Canada sold its full entitlement to the downstream power benefits from the three Canadian treaty projects to the United States for a

period of 30 years after each project went into operation. In exchange, a

group of US utilities paid Canada US $ 254 million for the first 30 years of

the Canadian entitlement. The money was to be applied toward the cost

of constructing the three Canadian treaty dams. The agreements governing these sales expire in 1998, 1999 and 2003, coinciding with the 30th

anniversaries of the completion of the three Canadian storage dams.

British Columbia and BPA are negotiating the terms of disposal of the

Canadian entitlement for the remainder of the term of the treaty.

A hierarchy of dispute resolution mechanisms has been established to resolve any conflicts that may arise under the Columbia River

Treaty. First, the matter is referred to the Permanent Engineering Board

(PEB), which is empowered under the treaty to “assist in reconciling differences concerning technical or operational matters that may arise

between the entities,” and to “investigate and report with respect to any

other matter coming within the scope of the treaty at the request of either

Canada or the United States of America.” Should Canada and the United

States be unable to resolve their differences, either of them can refer the

matter to the IJC for a decision. Should the IJC not render a decision

THE UNITED STATES AND CANADA 123
within three months of the referral or any other period agreed on by the

parties, either may submit the matter to arbitration. Alternatively, Canada and the United States may agree on other procedures for settling differences, including a reference to the International Court of Justice.

5.3 Basin-specific Frameworks

This section describes the existing legal and institutional water

management frameworks for each of the major transboundary basins.

5.3.1 Yukon River and Northwest International Drainage Area

The relevant legal regimes for managing water rights in this basin

include Alaska state law, Yukon Territory law, and the provincial water

rights laws of British Columbia. Transboundary water issues in the basin

are limited. They have generally been resolved through informal discussions among state and local authorities, and representatives of the two

federal governments, using the principles established under the 1909

Boundary Waters Treaty.

Water rights management in the Yukon is governed by a framework largely determined by federal law.129 The Yukon Waters Act,

enacted in 1992, builds on a previous framework established by the

Northern Inland Waters Act of 1970. The federal government has enacted

an “authority management scheme” for water rights in both the Yukon

and the Northwest Territories and has devolved certain powers to territorial water boards. The Yukon Territory Water Board is made up of four

to nine members appointed by the government of the Yukon and the federal government. The water board provides for the conservation, development and use of Yukon waters. The federal minister of Indian and

northern affairs is authorized to give written policy directions to the

board in certain situations.

Prior to the 1992 Yukon Waters Act, the permit system in the Yukon

Territory was based on priority of use, unlike many other permit systems which are based on priority in time. But the new system, while preserving existing rights, bases priority of new permits on the permit

application date. The governor in council, on the recommendation of the

water board, has authority to delineate water management areas and

classify different uses within those areas.

124 INLAND WATER MANAGEMENT REPORT

129. D.R. Percy, The Framework of Water Rights Legislation in Canada, Calgary: Canadian

Institute of Resources Law, University of Calgary, 1988.
To obtain a permit under the Yukon Waters Act, an applicant must

show that the proposed use would not affect other users (including

instream uses and holders of outfitting concessions) or that compensation will be paid to any permittee with a lower statutory priority of use

who will be adversely affected by the proposed use. The board has broad

authority to determine appropriate compensation and to set conditions

on permits, which cannot be issued for a period of greater than 25 years.

Permits can also be amended or canceled. The law allows the transfer of

water rights only when there is no change in use and other conditions are

met.

Although the federal government appropriated most riparian

lands under the Territorial Lands Act, certain older riparian rights, mostly

related to domestic uses, exist in the Yukon. Aboriginal water rights

could become an important issue in this region as part of land claims

settlements. As for instream uses, they receive little express statutory

protection in the water rights management schemes for the Yukon.

However, instream uses were considered in some allocation decisions

under the priorNorthern Inland Waters Act, which suggests that they may

be considered valid by the current board.

Alaska administers surface water rights under the prior appropriation doctrine. Some early riparian rights for mining were converted in

1966 to the prior appropriation system. One interesting facet of the

Alaska system is its detailed list of statutory factors to be considered in

determining whether issuing or transferring a water right would be in

the public interest. Although most prior appropriation states now have

some type of public interest review for water rights decisions, Alaska

has the most specific statutory criteria. The factors used to evaluate the

public interest are:

1. benefit of the proposed appropriation to the applicant;

2. effect of the proposed appropriation on fish and game habitat and

on public recreation;

3. effect of the proposed appropriation on public health;

4. effect of the loss of alternate uses of water that might be made

within a reasonable time if not precluded or hindered by the proposed appropriation;

5. harm to others from the proposed appropriation;

6. intent and ability of applicant to complete appropriation; and

THE UNITED STATES AND CANADA 125
7. effect of prior appropriation on access to navigation and public

waters.

These concerns grow out of the strong public trust aspect of

Alaska’s state constitution.130 Until 1980, Alaska relied on these statutory public interest factors to protect instream flows. That year, however, the law was changed to allow any local, state or federal agency or

any private person or organization to apply for a “reservation” of water

for recognized instream uses. These recognized uses include protecting

fish and wildlife habitat, recreation, navigation, transportation and

maintaining water quality. The reservations are not as secure as

appropriative rights, however, in that they must be reviewed every

10 years. If the review finds the reservation is no longer necessary, it can

be canceled in whole or in part.

5.3.2 Columbia River Basin

The relevant legal regimes for water rights management in this

basin include the Columbia River Treaty and the 1909 Boundary Waters

Treaty. Overviews of the two treaties are provided in sections 5.1 and

5.2. Also of relevance are the state water rights laws of Washington,

Idaho and Montana, and the provincial water rights laws of British

Columbia. The IJC has three international boards of control in the basin:

the Columbia River, Osoyoos Lake and Kootenai Lake.

The state of Washington relies on a prior appropriation water

rights permitting system adopted in 1917. Riparian rights existing at the

time this system was adopted are preserved if they were exercised by

1932. Because of its extensive development and the difficulties encountered in managing it for a broad range of purposes, the Columbia River

has been described as a monument to the modern-day problems engendered by the prior appropriation doctrine.131

The Columbia basin also is a good example of how the powers of

the federal government overlie state allocation of water rights. Federal

regulation of power production and the federal Endangered Species Act

126 INLAND WATER MANAGEMENT REPORT

130. M.L. Harte and C. Estes, “Assessment of Instream Flow Protection in Alaska”, in

Instream Flow Protection in the West, L.J. MacDonnell and T. Rice, ed., Boulder: Natural Resources Law Center, University of Colorado, 1993. On the public trust doctrine generally, see National Audubon Society v. Superior Court of Alpine County, 658

P.2d 709 (Cal. 1983), cert. denied 464 US 977 (1983); and J.L. Sax, “The Public Trust

Doctrine in Natural Resources Law: Effective Judicial Intervention”, (1970) 68 Michigan Law Review 471.

131. Getches, Water Law in a Nutshell.
have greatly influenced the institutions that relate to water resources

management in the basin.

Instream flows have been intensely controversial in Washington,

both within the state and in a transboundary context.132 Washington

State law gives the Department of Ecology exclusive authority to establish minimum instream flows to protect the public interest. This authority, however, is of little value in restoring streamflows, because most

rivers in the state, including the Columbia, are already fully appropriated. Thus the department was given authority to acquire and convert

existing private rights to instream use. The department also can lease

rights for this purpose. This program applies to the Yakima basin and to

pilot programs in the Dungeness/Quilcene and Methow basin.

By the end of the 1970s, it was clear that the traditional system of

river governance led by federal agencies was in need of reform. In

response, Congress created an interstate compact in 1980 in an effort to

deal with three emerging problems. Made up of representatives of

Idaho, Montana, Oregon and Washington, the council was entrusted,

under theNorthwest Power Act of 1980, to develop a 20-year regional electric power and conservation plan to ensure an adequate, efficient, economical and reliable power supply for the Pacific Northwest; to prepare

a fish and wildlife program to protect and enhance the stocks; and to

involve the public in these activities. Although the council initiated

ambitious programs in all of these areas, anadromous fish populations

continued to decline over the next 16 years for a variety of reasons. Many

of these were beyond the mandate of the council to control.

During the late 1980s and early 1990s, Washington policy makers

reached a consensus on instream flow issues and the need for increased

protection of instream flows by the Department of Ecology. Washington

State law now includes a watershed planning process that reflects that

consensus.

British Columbia also relies on a prior appropriation system,

administered through permits granted by provincial authorities. The

province has a system of regional water bailiffs who enforce priorities

THE UNITED STATES AND CANADA 127

132. K.O. Slattery and R.F. Barwin, “Protecting Instream Resources in Washington

State”, in Instream Flow Protection in the West, L.J. MacDonnell and T. Rice, ed., Boulder: University of Colorado, Natural Resources Law Center, 1993. Also see M.

McGinnis, “On the Verge of Collapse: The Columbia River System, Wild Salmon

and the Northwest Power Planning Council”, (1995) 35 Natural Resources Journal 63;

and “Symposium on Northwest Water Law”, (1996) 26(1) Environmental Law 141.
and water rights. Water rights in British Columbia are more readily

transferable than they are in the Canadian prairie provinces, with transfers from one purpose to another allowed if approved by the controller.

The government of British Columbia has the authority to reserve

unappropriated water to ensure its availability for future use. Permits to

this water may be granted, subject to the reservation, but they can be canceled at any time. Water rights in British Columbia can also be canceled if

they have not been used for three years. The province recognizes conservation as a beneficial purpose, but it is almost last in the hierarchy of purposes. The importance of the hierarchy relates to determining priority of

use if the licenses for different uses of the water carry the same priority

date.

The Columbia Basin Trust Act, passed by the provincial legislature

in May 1995, led to the establishment of a British Columbia corporation

called the Columbia Basin Trust. The purpose of the trust is to invest,

spend and manage assets deriving from the Columbia River Treaty.

These assets are managed for the ongoing economic, environmental and

social benefit of the region in recognition of regional losses that the

Columbia River Treaty entailed.

The Columbia River Treaty solved the two main challenges of the

day: providing greater flood control and increasing energy resources.

Over the last three decades, however, environmental issues not

addressed by the treaty have arisen. For example, nowhere in the treaty

are there formal provisions for the integration of fisheries and other

environmental concerns with existing power and flood control priorities. Adjustments can be made in systems operations to accommodate

multiple-use concerns, but if the adjustments reduce power production

on the other side of the border compensation is required. Unfortunately,

this approach creates a climate in which management decisions are often

viewed as “non-power vs. power” tradeoffs. On the Canadian side in

particular, BC Hydro has had to deal with conflicts that have arisen as a

result of its obligations under domestic environmental protection legislation, such as the Fisheries Act, and its obligations under the Columbia

River Treaty. There is a similar conflict between “power” and

“non-power” tradeoffs in the United States, because increasingly the

Endangered Species Act drives water management (Bonneville Power, US

Army Corps of Engineers) in the Columbia basin.

Among those who have been vocal in their dissatisfaction with the

current management regime for the Columbia River are groups who are

interested in protecting aquatic and terrestrial habitats, fisheries and

128 INLAND WATER MANAGEMENT REPORT
water quality. Of special note are First Nations on both sides of the border. Aboriginal groups in Canada and the United States have formed

regional commissions to address the loss of their fisheries.133 In the

United States, the Columbia River Inter-Tribal Fish Commission is

becoming increasingly involved in fisheries management in the basin

and wields significant influence in this process. The Canadian Columbia

River Inter-Tribal Fish Commission is working toward achieving a similar level of involvement for First Nations in Canada. Spokespeople

for the recreation and tourism industries in both countries have also

expressed concern over the limited mandate of the Columbia River

Treaty. All interest groups, including First Nations, have played an

important role in bringing non-power issues to the attention of governments and the general public.

Recent years, however, have seen a move toward exploring alternatives to the institutional framework for managing the Columbia River

basin. The 1992 British Columbia-Washington Environmental Cooperation Agreement, for example, introduced a means of fostering regional

cooperation in environmental protection. The agreement established the

British Columbia/Washington Environmental Council, with a mandate

“to promote and coordinate mutual efforts to ensure the protection,

preservation, and enhancement of our shared environment for the benefit of current and future generations.” Members of the Council include

representatives of the BC Ministry of Environment and the Washington

State Department of Ecology. In addition, representatives of Environment Canada and the US Environmental Protection Agency have informal observer status. A similar agreement between BC and Montana is

under development.

The British Columbia/Washington Environmental Council meets

biannually and reports annually to provincial and state officials. It can

establish subcommittees to deal with specific matters or, by formal

agreement, establish international task forces to address issues of special

or major significance. The council recently signed a memorandum of

understanding to supplement the original agreement on management of

THE UNITED STATES AND CANADA 129

133. Canadian Columbia River Inter-Tribal Fish Commission (CCRIFC), “CCRIFC

Compensation Workshop Discussion Paper: Toward the Restoration of the Columbia River Basin”, unpublished draft, Cranbrook, BC, 1993; CCRIFC, “Towards a

Columbia Basin Restoration Strategy”, third unpublished draft, Cranbrook, BC,

1993; and CCRIFC, “January-February 1996 Report”, Newsletter, Cranbrook, BC,

1996. Columbia River Inter-Tribal Fish Commission (CRITFC), Restoring Salmon to

the Columbia River Watershed: A Tribal Perspective, Portland, OR, 1994; and CRITFC,

Wy-Kan-Ush-Mi Wa-Kish-Wit–Spirit of the Salmon: The Columbia River Anadromous

Fish Restoration Plan of the Nez Perce, Umatilla, Warm Springs and Yakama Tribes, Portland, OR, 1995.
the Columbia basin. This memorandum is intended to improve communications on environmental management in the transboundary area of

the Columbia basin. It provides for:

• notification of proposed discharges to land and water that

may have transboundary impacts;

• notification of proposed large consumptive water diversions;

• notification of planning activities that may have

transboundary impact;

• sharing of air and water quality information;

• notification of spills;

• opportunity for public comment (in both the United States

and Canada) on proposals; and

• joint facilitation of public information meetings upon mutual

agreement of need.

5.3.3 Great Plains Region

In addition to the 1909 Boundary Waters Treaty, the relevant legal

regimes for the Great Plains region of the US-Canada border include

state water rights laws in Montana and North Dakota, and the provincial

laws of Alberta, Saskatchewan and Manitoba.

Montana uses a prior appropriation system for surface water

rights and it is still in the process of adjudicating water rights in various

basins. North Dakota also has a prior appropriation system, but it protects riparian rights that existed when the system was adopted.

In addition to a 1995 statute that allows a temporary (up to 10-year)

conversion of water rights to instream flow use if it will benefit a fishery

resource, Montana has a somewhat unique system that attempts to provide for protection of instream flows while protecting the state from

being at a disadvantage relative to downstream states. Montana’s “reservation” system essentially allows public entities to reserve water

rights for existing or future beneficial uses, including maintaining

instream flows. This system applies to six Montana rivers, including the

Kootenai and the St. Mary. Under this system, water rights can be

reserved without the usual prior appropriation requirement that water

be diverted or impounded.

130 INLAND WATER MANAGEMENT REPORT
To secure a reservation, which is available only to state or political

subdivisions or an agency of the state or federal government, the applicant must show the water is “needed.” Need is “established by showing

a reasonable likelihood that future in-state or out-of-state competing

water uses would consume, degrade or otherwise affect available

water.” Reserved rights, especially for future use, can also be granted

to those eligible entities that can show they must have additional time

to develop the proposed water use project. The reservation process,

which was initiated first on the Yellowstone and upper Missouri Rivers,

brought the instream issue to the forefront. The process highlighted

competing economic values in a state that depends heavily on tourism

oriented to water-based recreation. It has been speculated that, if the reservation process is eventually used on the Kootenai or St. Mary Rivers, it

may raise a host of issues related to cross-border flows.

Alberta, Saskatchewan and Manitoba all have surface water rights

regimes based largely on the prior appropriation doctrine, with some

protection for existing riparian rights (at least for domestic and smallscale agricultural purposes).134 Water rights management is largely

under the control of the provincial governments. The Prairie provinces

have developed appropriate legal regimes for water rights management

in times of periodic water shortages caused by drought. In times of

drought, there is generally not a legal cutoff of junior rights, but rather a

negotiated sharing of available supplies. In Saskatchewan, the Saskatchewan Water Corporation, a crown corporation described in more detail

later in this section, has broad discretion to allocate supplies.

Water rights are generally not readily transferable in the Prairie

provinces. However, Alberta’s 1996 water law allows transfers of water

rights if an approved water management plan for the region authorizes

transfers. In addition to clarifying the legal status of riparian rights and

groundwater rights for household and traditional agricultural use, the

1996 law specifically prohibits interbasin transfers, including the transfer of water outside of Canada, unless authorized by a special act of the

Alberta legislature.

In 1984, Saskatchewan transferred all authority over water

resource issues to the province-run Saskatchewan Water Corporation.

The corporation has a mandate to: regulate and control the flow of water

in Saskatchewan; administer all interjurisdictional water matters; provide comprehensive basin planning; approve the use of water for waterTHE UNITED STATES AND CANADA 131

134. D.R. Percy, “75 Years of Alberta Water Law: Maturity, Demise and Rebirth”, (1966)

Alberta Law Review. The authors are indebted to Professor Percy who readily provided his comprehensive analysis of Alberta’s August 1996 water law.
works, sewage works and drainage works; and construct, acquire,

manage and operate any facility incidental to the use of water.

The legislation establishing the corporation gives it broad and discretionary powers over water rights management. The corporation also

has broad powers to cancel water rights, either when the permittee

agrees or when the “corporation considers that the water user no longer

needs the water.”

In spite of being part of separate continental drainage systems, the

St. Mary and Milk Rivers are jointly administered for international purposes. Substantial quantities of water are diverted from the St. Mary

River to the Milk River in the mountain headwaters to augment the

water supply for irrigation downstream in the arid prairie region of

Montana. The waters of these rivers are heavily used for irrigation purposes on both sides of the border.

A 1921 order by the IJC detailed the apportionment of the St. Mary

and Milk Rivers. During the irrigation season, Canada is assured of

receiving 75 percent of the water of the St. Mary River up to a natural

flow of 596 Mm3 (666 cubic feet per second, cfs) per year and half of flows

in excess of 596 Mm3 per year. In winter, Canada is assured half the natural flow. On the Milk River, at its eastern crossing, the United States is

assured the same share. The eastern tributaries of the Milk River are to be

shared equally at their boundary crossing. The interjurisdictional sharing of several of these tributaries is also complicated by the fact that they

cross the Alberta-Saskatchewan border, where they are apportioned

under the Prairie Provinces Water Board Agreement.

The three largest tributaries of the Milk River—Lodge Creek, Battle

Creek and Frenchman River—are monitored. On these tributaries, irrigation, reservoir storage for future irrigation and reservoir evaporation

use most of Canada’s share in low flow years. Significant excess delivery

to the United States occurs only in wet years.

Although no formal international apportionment agreement has

been established under the IJC, the Poplar River is managed under a

1976 bilateral agreement sanctioned by an exchange of notes by governments and administered by a bilateral committee. The agreement was,

however, based on an IJC recommendation. The apportionment provides for equal sharing, with flexibility for Saskatchewan to use more

than half on individual streams. Montana is assured of a certain base

flow to meet the needs of existing users.

132 INLAND WATER MANAGEMENT REPORT
Water apportionment of the Souris River along the Saskatchewan-North Dakota border and at the North Dakota-Manitoba border is

prescribed in the Agreement for Water Supply and Flood Control in the

Souris River (1992). The agreement, prompted by proposals for relatively large storage reservoirs at Rafferty and Alameda in Saskatchewan, provides that “the Province of Saskatchewan shall have the right to

divert, store, and use waters which originate in the Saskatchewan portion of the Souris River basin, provided that such diversion, storage, and

use shall not diminish the annual flow of the River at Sherwood Crossing more than fifty percent of that which would have occurred in the

state of nature, as calculated by the Board.”

With the large storage capacity in Saskatchewan relative to the natural flows, the apportionment formula is a dominant factor in operating

the Rafferty and Alameda Reservoirs. As these new reservoirs fill,

increased uses and evaporation will make apportionment of the Souris

River a much more important issue than it was prior to 1992. In 1994, the

governments entered bilateral negotiations to revise apportionment

measures for river between Saskatchewan and North Dakota. According to Environment Canada, the revised apportionment was expected to

be finalized through an exchange of notes between governments.135

Water sharing at the Manitoba crossing of the Souris River has not

generated major difficulties in the past, but as upstream developments

in North Dakota and Saskatchewan have increased, policy makers have

begun to worry about the possibility of more frequent lower deliveries.

The current drought criteria, which allow reduced deliveries, were

established before much of the upstream development. The Souris River

Board of Control has been reviewing this issue.

One well-known transboundary issue in the Souris River and Red

River region was the proposed Garrison Diversion. It was originally

proposed by US interests in the 1940s as a method of providing irrigation

water for 101,200 ha (250,000 acres) in North Dakota from the Missouri

River. These flows would have been diverted into the Hudson Bay

drainage basin and would have gone into Lakes Winnipeg and Manitoba. The project was opposed by Canada. Of special concern was the

chemical and biological quality of the return flows from the proposed

project. Another specific concern was the potential for interbasin transfers of (exotic) aquatic species.

THE UNITED STATES AND CANADA 133

135. J. Cooper, Environmental Conservation Service, Environment Canada, personal

communication.
The matter was referred to the IJC in the 1970s, which established a

study board to investigate these concerns. In its 1977 study, the IJC recommended against construction of that part of the project that would

affect Canadian waters. Under pressure from Canada and from environmentalists in the United States, the US Congress scaled back the project

with the 1986 Garrison Diversion Reformulation Act to reduce irrigated

acreage to 56,660 ha (140,000 acres), and include as payments to North

Dakota money for rural development and municipal water supplies.

In November 1997, a bill was introduced in the US Congress to

complete the Garrison Diversion, including features that would transfer

water from the Missouri basin to the Hudson Bay basin (Dakota Water

Resources Act). Canada, the IJC, and the Great Lakes Commission,

among many others, however, continue to oppose the parts of this initiative involving interbasin transfers of water.

5.3.4 Great Lakes Basin (Including Lake of the Woods)

The prospects of extrabasin diversions and climate change have

raised concerns about water levels in the Great Lakes basin, but much of

the most recent attention has centered on water quality. In addition to

federal laws, the relevant legal regimes for this region include state laws

in Minnesota, Michigan, Illinois, New York, Pennsylvania, Indiana,

Wisconsin and Ohio; the provincial laws of Ontario; and various boundary and transboundary agreements, including IJC orders that govern

outflows from Lake Superior and Lake Ontario.

The region’s US states and the province of Ontario all have permit

systems based on the riparian doctrine. Until 1961, when the permit system was adopted, the province relied on common law. While uses of

water away from riparian land were common, there was little conflict

over these uses because of the abundance of water. Today, Ontario’s permit system applies to uses greater than 50,000 liters (13,208 gallons) per

day, unless the use was established before March 1961 or unless the

water is used solely for domestic, fire fighting or small farm purposes. In

1998, the controversy surrounding Ontario’s issuance of a permit for

tanker export from Lake Superior resulted in changes to Ontario’s permit system to prevent the bulk withdrawal of water.

Under the Ontario system, applications for permits are evaluated

according to the effect of the proposed use on others, on the availability

of water and on the environment. The Ontario Ministry of the Environment, which administers the permit system, has wide discretion in

134 INLAND WATER MANAGEMENT REPORT
resolving conflicts, in imposing any conditions needed to address water

shortages, and in altering terms or canceling permits.

Much of the transboundary effort in this region has centered on

water quality under the Great Lakes Agreement and related instruments

(see section 5.1.3). This work has been thoroughly analyzed by others

and is not discussed in detail here.136

The IJC has received references from the two governments on lake

levels, diversions and consumptive uses in the Great Lakes-St. Lawrence

system. Flood and shoreline management figured prominently in many

of these references. Notably, the IJC has concluded that the enormously

expensive structural measures required to reduce erosion and flood

damage, while technically feasible, are not justified in view of the benefits expected.

As noted elsewhere in this report, the Canadian provinces of

Ontario and Quebec have joined with the eight US states in the Great

Lakes region in endorsing the Great Lakes Charter. This charter joins the

states and provinces together to protect the water resources of the Great

Lakes, particularly from the anticipated pressures for interbasin diversions to meet needs in western US states. The charter also provides a

means by which the major consumptive uses of water in the Great Lakes

are recorded in a joint database.

5.3.5 Upper St. Lawrence and Atlantic Drainage Basins

The primary legal regimes for water rights management in this

transboundary region include the state laws of New York, Vermont and

Maine, the provincial laws of Quebec and New Brunswick, and the 1909

Boundary Waters Treaty.

New York, Vermont and Maine rely on riparian-based permit systems. The generally abundant water resources of this region, relative to

demand, result in fairly straightforward water rights administration.

Both Quebec and New Brunswick also rely on riparian-based systems.

Quebec’s civil law distinguishes such a system from common law-based

systems.

THE UNITED STATES AND CANADA 135

136. See, for example, B. Sadler, “Shared Resources, Common Future: Sustainable

Management of Canada-United States Border Waters”, (1993) 33 Natural Resources

Journal 376; and P. Muldoon, “Public Participation in Bilateral Institutions”, in Proceedings of First North American Conference on Environmental Law: Phase II, Washington, DC: Environmental Law Institute, 1993.
Major binational issues include maintenance of the St. Lawrence

Seaway, cross-border hydropower development and water quality in

the St. Croix and St. John Rivers. In addition to the three IJC control

boards, more direct relationships between provincial/state and federal

governments are responsible for managing several aspects of the

region’s boundary and transboundary surface waters. For example, the

conservation, development and use of the St. Croix River is overseen by

the New Brunswick-Maine International St. Croix Waterway Commission, established by the premier and governor.

136 INLAND WATER MANAGEMENT REPORT
CHAPTER 6

Issues and Challenges

This report has revealed that the legal and institutional frameworks for managing North America’s boundary and transboundary

fresh waters are in a constant state of change stemming from evolving

political, social and economic structures, and changes in the physical

environment and in public opinion. This chapter identifies the trends

and challenges that are affecting domestic and transboundary water

management in North America. It begins by describing the domestic situations in Mexico, the United States and Canada and then discusses the

issues and challenges particular to each of the two international boundaries.

6.1 Mexico

Despite Mexico’s long-standing reputation for centralized administration and federal control of water resources, the significant intergovernmental transformations under way are certain to affect the

management of water resources across national boundaries. These

domestic changes unavoidably affect the established institutions for

binational water management, both old and new.

The principal domestic trend influencing Mexico’s formal involvement in transboundary water management is the devolution of federal

administrative responsibilities to the states and municipalities. The process of devolution in national water management has been under way

since 1992 under authority of the National Waters Act (Ley de Aguas

Nacionales). One difficulty associated with this devolution is that the

transfer of rulemaking and implementation responsibilities to states and

municipalities has often exceeded the capacity of these local agencies to

act on their new responsibilities. Yet the devolution of administrative

responsibilities has opened the door to greater public-private sector

cooperation in water management and the incorporation of market

elements into national water administration. These developments may

137
make additional financial resources available and create new opportunities for managing transboundary waters.

Devolution affects Mexico’s transboundary water management

in several ways. First, state and municipal participation extends the

process and complexity of national decision making in water policy

development and implementation. Second, with devolution, states and

municipalities become increasingly important at the level of implementing water policy. Improving the fiscal, technical and human resources of

local institutions is thus vital to transboundary inland water management. Third, devolution raises new challenges in coordinating public

policies across agencies and sectors relevant to Mexican domestic and

international water resource management. And, fourth, devolution

amplifies the importance of local public participation as an element of

transboundary water management.

In addition to policy decentralization, two other intergovernmental trends are evident at the national level in Mexico. One of these trends

is the incorporation of more integrative, basinwide approaches to managing national water resources. The new river basin councils (consejos de

cuenca)incorporate ecological and social concerns in planning processes.

The impact of these new planning mechanisms is not yet evident, but

they have promise for the design of approaches to river basin management that are more effective and ecologically-sensitive than past ones.

Another important trend is the evolution of a body of environmental legislation and technical norms at the national, state and local levels to regulate water pollution and water quality.

The recent restructuring of federal environmental agencies,

coupled with policy devolution to states and municipalities, and

the incorporation of market-based mechanisms adds to the challenge

of integrating water management practices. The process of refining

national legislation to better define responsibilities for implementing

water-related legislation is now under way in Mexico.

Another area that requires special effort is the collection, coordination and publication of the relevant data on water. At present, the inadequacy of information on water quantity and quality is a major obstacle to

effective water management in Mexico. The task of collecting more data

on both surface and groundwater is made somewhat more challenging

in the context of the decentralization of authority for water management.

Decentralization of policy responsibility for water management

in Mexico affects binational institutions, including the International

138 INLAND WATER MANAGEMENT REPORT
Boundary and Water Commission (IBWC) and the Border Environment

Cooperation Commission (BECC). The IBWC’s Mexican Section, for

example, has traditionally operated within a federal diplomatic framework. It must now deal with a wider range of Mexican jurisdictions as it

attempts to resolve water-related treaty differences, and participate in

binational sewage and sanitation projects. BECC must now deal more

directly with local municipios, state agencies and private sector entities in

certifying environmental infrastructure projects and developing financial arrangements for their completion.

The mobilization of new social forces in Mexican politics has

important implications for the administration of Mexican water

resources. The emergence of a wide range of nongovernmental environmental organizations (ENGOs), one of the most distinctive developments of the past decade, accelerated with the signing of the NAFTA

accords.137 ENGOs now play an important role in monitoring enforcement of environmental laws, organizing local communities and neighborhoods for the articulation of environmental concerns, contributing

technical skills on which governments at all levels may draw, and linking local communities with national and international organizations

engaged in environmental management.138

There is little doubt that the emergence of popular concern about

the environment is contributing to the strengthening and vitalization of

Mexican civil society in ways that affect transboundary water management. As in other countries, environmental organizations in Mexico are

pushing for greater procedural openness and accountability to the public in environmental management. They call for greater access to government records and proceedings, and more public participation in policy

making and implementation. These demands are consistent with international trends and are reflected in agreements affecting transboundary

waters. Recent US-Mexico binational agreements, especially the Border

XXI program, incorporate provisions for public participation, consultation and greater public access to formal decision making.

With the mobilization of public, nongovernmental participation in

environmental management, all levels of government are now subjected

to greater public scrutiny, compelling officials to be more accountable

ISSUES AND CHALLENGES 139

137. Newman, Managing Mexico’s Environmental Challenge, 15; and E. Kurzinger et al.,

Política Ambiental en México: El Papel de las Organizaciones no Gubernamentales,

México, DF: Instituto Alemán de Desarrollo, Friedrich Ebert Stiftung, 1991.

138. For an excellent account of how environmental organizations have recently contributed to local water management in a Mexican border city, see the case of Nogales,

Sonora, in H. Ingram, N. Laney and D. Gillilan, Divided Waters: Bridging the US-Mexico Border, Tucson: University of Arizona Press, 1995.
and responsive to public demands and perspectives. Public demands

generate pressure for changing formal administrative protocols and

political practices to incorporate public participation in water management. Once involved, citizens then have an opportunity to perform functions formerly left to the governments. The expanding role of the public

augments institutional capacity for effective environmental management and water management at all levels. Finding ways to support and

strengthen this trend is one of the fundamental challenges for improved

management of transboundary water resources on the US-Mexico border.

6.2 United States

Transboundary water management could be improved by more

coordinated water policy and administration in the United States. Differences in laws, capacities and political will characterize US water

management among federal agencies and individual states. Numerous

studies have documented the different approaches to water management, varying administrative capacities and uneven implementation

and enforcement of water management policies across the United

States.139 Moreover, the trend of the past 15 years has been away from a

coordinated federal approach to water policy, and this trend seems

likely to continue, given the general political and fiscal constraints on

federal programs.140

Although a great wealth of data is available on water in the United

States, a failure to coordinate federal and interstate data gathering and

publication has at times lessened the effectiveness of water management. Little coordination exists among the federal agencies involved in

assessing water quantity and water quality throughout the country and

between states that share watersheds.141 One exception, however, is

140 INLAND WATER MANAGEMENT REPORT

139. Responsibility for water management is fragmented among federal agencies and

between federal and subnational agencies. Thirty-four different federal agencies

make decisions directly related to water management, and they maintain at least 25

separate water programs. This fragmentation at the federal level reflects the fragmentation of water matters within Congress, where 14 House committees and 13

Senate committees deal with some aspect of water management. As a result, legal

authority and technical assignments are spread diffusely and unevenly at the federal level.

140. L.B. Dworsky, D. Allee and R. North, “Water Resources Planning and Management

in the United States Federal System: Long Term Assessment and Intergovernmental Issues for the Nineties”, (1991) 31 Natural Resources Journal 475-548; and P. Rogers, America’s Water: Federal Roles and Responsibilities, Cambridge: MIT Press, 1993,

285.

141. At the federal level, three agencies collect data on water quantity or water quality:

USGS, NOAA and EPA. There are no direct linkages between the EPA and NOAA
EPA’s new electronic watershed database, which brings together and

makes public a good deal of data relevant to US watersheds. Nevertheless, comprehensive information on groundwater, in particular, is still

lacking.

The variability of flows in certain watersheds has resulted in considerable ambiguity about the actual amount of water available. As a

result of this ambiguity and the lack of coordinated water management

in both the southwest and the northwest, it is not unusual for water to be

overallocated on paper.142 For groundwater, even less is known about

the quantities available, withdrawal and recharge rates, and contamination by pollutants.143 Because most groundwater management programs remain under state control, the national data collection and

assessment capacities are relatively poor in this area.

Currently, there is no institutional mechanism for coordinating the

disparate national, state and local interests in matters involving domestic transboundary waters. In Congress, however, the political process

plays this coordinating role in an indirect way. Competing interests are

played out during the budget process and in the interagency competition for authority. In addition, upper- and lower-basin states compete in

Congress for access to water. However, this competitive process only

exacerbates the uncoordinated and fragmented approach to water management.

Litigation is another uncoordinated mechanism for reconciling

competing interests in domestic transboundary water. This is especially

true in areas involving Native American reserved water rights. Nevertheless, the lack of consistency inherent in litigated resolutions presents

serious problems of fairness, with some tribes achieving markedly

better terms than others. These competitive and inconsistent processes

provide little basis for a coordinated approach to transboundary water

resource issues such as groundwater depletion and contamination in the

southwest, overallocation within a river basin, or toxic pollution in the

Great Lakes.

ISSUES AND CHALLENGES 141

data systems, nor between the USGS and NOAA data systems, making use of these

data sets for assessment purposes difficult. EPA’s recently launched “Index of

Watershed Indicators” Web site (htttp://www.epa.gov/iwi) is, however, an

important step toward providing integrated, comprehensive information on many

water-related variables.

142. J. Haggard, “Institutional Considerations”, in Are We Prepared for the Next Drought?

Managing Low Water Year Emergencies, proceedings of a workshop, 6 May 1983, University of Washington, Seattle, C. Borches, M. Spranger and B. Williamson, ed.,

Portland, OR, n.d., 29-35

143. Z. Smith, The Environmental Policy Paradox, 2nd ed., Englewood Cliffs, NJ: Prentice

Hall, 1995, 108-109.
These shortcomings in domestic water management can create

problems for the management of water resources across international

boundaries, especially for Mexico where data remain scarce and difficult

to obtain. For example, more coordination is needed to mitigate the

downstream impacts of agriculture, the variation between jurisdictions

in instream flow needs, and the health effects of different water contaminants on downstream users. In recent years, however, the United States

has been more explicit in acknowledging the ecological and recreational

value of water resources.

In the past, there has been no consistent mechanism for ensuring

public participation in transboundary water management from a federal

standpoint. The IJC’s approach to dealing with issues on the US-Canada

border has been an exception, and IBWC also has been developing

mechanisms designed to include the public. Recent developments, however, in the Great Lakes, Columbia River, Colorado River and Río

Grande regions suggest a growing institutional commitment to public

participation in transboundary water management at the state and interstate levels.144

6.3 Canada

As a result of financial and political developments, the management of freshwater in Canada is changing. Reductions in funding for

federal and other government programs and the growing role of provincial authorities in water management are contributing to significant

challenges for the future. Yet at the same time, public interest and

involvement in both transboundary and domestic water management

are growing in Canada.

In the 1970s and 1980s, the recognized need for a clear federal role

in water management in Canada led to initiatives such as the Canada

Water Act (1970) and the Federal Water Policy (1987). But efforts to clarify and strengthen the role of the federal government in water management then lost momentum until the mid-1990s.145 In early 1999, the

Canadian government launched a strategy to prohibit the bulk removal

of Canadian water, including water for export. Under this strategy, the

International Boundary Waters Treaty Act has been amended to give the

142 INLAND WATER MANAGEMENT REPORT

144. J. Hartig and M. Zarull, “Keystones for Success”, in Under RAPs: Towards Grassroots

Ecological Democracy in the Great Lakes Basin, Ann Arbor: University of Michigan

Press, 1992, 263-279.

145. In an attempt to help clarify the federal role in water management, the Canadian

federal government commissioned the report, Broadening Water Perspectives by

B. Mitchell and J. Bruce, Incidental Report No. IR95-1, Ottawa: The Royal Society of

Canada, August 1995.
federal government the regulatory power it needs to prohibit bulk

removals from boundary waters, principally the Great Lakes. Also

included in the strategy is a proposal to develop, in consultation with the

provinces and territories, a Canada-wide accord on bulk water removals

to protect Canadian watersheds. The strategy has prompted discussions

across the country at both the provincial and federal levels, and has

resulted in growing public awareness about water management issues.

For nearly three decades, the Canada Water Act has authorized several useful programs, particularly in the mapping of flood-prone

regions and the construction of flood control structures. Recent budget

cuts to these programs, however, make it unclear what influence the act

will have in the years to come. The Federal Water Policy, which was

intended to clarify the federal government’s role in managing water,

remains a potentially useful guideline, but it has been largely ignored,

leaving no overall, coordinated water management strategy at the federal level. In July 1998, the federal government circulated to all provinces

a comprehensive draft of the Federal Freshwater Strategy, as a major

policy update to the 1987 Federal Water Policy. Consultations with the

provinces took place over the summer and autumn of 1998, but no concrete developments have emerged from this process and the strategy

itself has yet, as of this writing, to be made public.

Because the provincial governments are assuming greater responsibilities for water management, capacity building at the provincial level

is of central importance. The provinces are key players in water monitoring, regulation, planning, impact assessment and research, and they are

taking on greater responsibility for gathering data on water quantity

and quality within their boundaries. Nevertheless, administrative

restructuring and reduced budgets for provincial environmental agencies challenge the provinces’ abilities to maintain their current level of

services and make it particularly difficult for them to assume their new

responsibilities.

Fiscal austerity and the intergovernmental restructuring of water

management in Canada have mixed implications for binational bodies

like the IJC. A shift toward the new, integrated “ecosystem approach”

to environmental and water management at the federal level is consistent with the IJC’s approach. But, faced with reductions in the resources

available, federal agencies find it difficult to put the ecosystem

approach into effect.146 Moreover, as Great Lakes pollution standards

ISSUES AND CHALLENGES 143

146. If successful, the IJC’s proposed international watershed boards could be of considerable help in addressing the institutional challenges associated with adopting an

“ecosystem approach.”
are tightened in response to recommendations of the IJC and others, the

governments are increasingly strapped for resources to implement these

standards. The federal government has shown a willingness to link

water management programs to IJC recommendations. However,

before committing resources to these programs, it has sought cost-sharing agreements with the affected provinces.

Administrative changes and budget reductions at the federal level

are affecting the agencies involved in water management, particularly

Environment Canada. One report even warned that these developments

“will lead to insufficient capability in the federal system to understand

and deal with pressing water issues.147” Among the activities that will

face major challenges in the years ahead are the development of national

guidelines for water quality and use, the nationwide monitoring of

water quality and water use, the promotion of aquatic science, and programs such as the protection of heritage rivers.

As in Mexico and the United States, public interest in water issues

and water management has grown significantly in Canada in recent

decades. Canadians associate themselves with water, because lakes,

rivers and wetlands, along with the wildlife they sustain, are an important element of Canada’s national identity. Issues such as acid rain, the

effects of large dams, interbasin water exports, and water quality in the

Great Lakes and elsewhere have generated much popular concern over

the years, thereby helping to gain public support for national legislation

such as the Canadian Environmental Protection Act and sparking demands

for public involvement in water management.

6.4 Common Themes on the Two Borders

Transboundary water management in North America is vested in

institutions that reflect the different environmental, political, economic

and historical conditions of the border regions. These institutions

do possess some commonalities, however, in the management of

transboundary waters.

Among the more important features common to the binational

transboundary water management institutions on the US-Canada and

US-Mexico borders are: a dependence on national governments for

initiative and action; the predominance of government agencies in insti144 INLAND WATER MANAGEMENT REPORT

147. J. Bruce and B. Mitchell, Broadening Perspectives on Water Issues, report prepared for

the Canadian Global Change Program and the Canadian Water Resources Association, Ottawa: Royal Society of Canada, 1995, vi.
tutional structure; problems with coordinating the roles and responsibilities of governments and agencies in binational programs; and the

growing importance of public participation, including access to information and influence in institutional decision making.148

The binational institutions that have been established to manage

transboundary waters on the two borders were created by and derive

their authority from the three national governments. The work of these

institutions and their success in resolving issues depend on the confidence and the resources that the national governments place in them.

Effective management of transboundary waters also depends on coordination between national and subnational governments in the affected

regions. Therefore, the role of national governments, their attention to

the needs of the binational institutions and their ability to coordinate

bilateral policies are critical to the effectiveness of these institutions.

The dependence of binational institutions on the national governments and the presence of domestic political constraints can pose a challenge for transboundary water management. The IJC may identify and

draw the governments’ attention to various problems in the US-Canada

border region, but it cannot act without a reference from at least one of

the two national governments. The IBWC has in principle some latitude

for investigation and policy initiative on the US-Mexico border, but it

has seldom exercised such powers without carefully soliciting the support of its member governments in advance. Furthermore, both commissions can become subject to de facto state and provincial vetoes when

their activities affect these subnational jurisdictions. Domestic political

constraints may thus restrict the commissions’ capacity to play a proactive role in binational water management.

An important consequence of institutional dependence on

national governments is that government bureaucracies dominate

policy on both borders. Despite the impartiality displayed by the

commissioners of the main binational institutions, the composition of

the IJC’s advisory boards and the IBWC’s consultative patterns favor

the expertise and views of established government agencies with

water-related experience. Although these patterns of influence may be

ISSUES AND CHALLENGES 145

148. The IJC brought these same issues to the attention of governments of Canada and

the United States in the 1997 report The IJC and the 21st century. The governments

have now approved, in principle, the commission’s proposal that it establish permanent IJC international watershed boards for the major watersheds along the

US-Canada boundary, and the commission has been given a reference to begin

implementing it.
technically efficient and politically expedient, they contribute to the

commonly held view that transboundary water management can be

unresponsive to the concerns of affected citizens.

On both borders, difficulties have arisen in coordinating government responses to suggestions and programs put forward by the binational institutions. A 1989 report by the US General Accounting Office

cited the failure of federal agencies to respond to recommendations

of the IJC.149 Thus the lack of protocol for coordinating government

responses to the IJC may have delayed the formulation of US government positions on important issues affecting transboundary waters.

Similar gaps in communication appear to have existed among federal

agencies and between federal and provincial governments in Canada.

On the US-Mexico border, IBWC has experienced similar problems at

the policy and operational levels. By contrast, the interagency linkages

established by the Border Environment Cooperation Commission have

facilitated communications and created incentives for US domestic

interagency cooperation in water management.

Accommodating the growing demands for public participation is a

common challenge for transboundary water management on both borders. As public awareness of environmental conditions has increased, so

too have the demands for greater public involvement in the affairs of

institutions traditionally oriented toward more exclusive, diplomatic

modus operandi. Historically, the IJC has been relatively well equipped to

accommodate these demands. Involvement of the public has grown,

particularly within the framework of the Great Lakes Water Quality

Agreement and its protocols. The Remedial Action Plan process (see

Chapter 5) has been praised as a model of public participation in

remediating pollution problems in the Great Lakes. These procedures,

however, are in place only in the Great Lakes region and apply only to

water quality issues.

On the US-Mexico border, IBWC has not traditionally invited public participation in its decisions, nor has it sought to be broadly representative of the border public in setting its agenda. IBWC procedures are

changing, however, partly in response to increased demands for public

146 INLAND WATER MANAGEMENT REPORT

149. The US General Accounting Office report of 1989 cited the failure of federal agencies to respond to the IJC’s suggestions. It recommended that “the Secretary of State,

in conjunction with officials from the EPA, the Army Corps of Engineers, and other

involved technical agencies, establish a formal mechanism to provide prompt US

responses to IJC’s recommendations. Such responses should include either a confirmation that the US agencies plan to implement a recommendation or an explanation of their rationale for rejecting the IJC’s recommended course of action.”
involvement. In addition, the advent of the Border Environment Cooperation Commission has indirectly exposed IBWC to greater public participation in transboundary water infrastructure projects. On both the

US-Canada and US-Mexico borders, bilateral institutions are expected

to face continuing demands for greater public participation, transparency and accountability to the public.

6.5 Issues and Challenges Particular to the US-Canada Border

During the past 30 years, the management of transboundary

waters between Canada and the United States has become increasingly

complex and challenging. New issues have arisen within the context of

the economic and population growth affecting various parts of the

US-Canada border region. The emerging concerns about water quality

and environmental health have placed new demands on the management of transboundary waters.

US-Canada transboundary water management is conducted

mainly through the International Joint Commission. Since beginning its

work in 1912, the IJC has proven effective in handling the shared water

resources issues that have come before it. The commission, however, has

been constrained in its ability to respond to emerging issues by several

factors.

Although the IJC enjoys considerable independence to investigate

and report on the matters referred to it, many observers have noted the

governments’ reluctance to utilize the commission to its full capacity.

For example, some critics have argued that the IJC’s current mandate is

overly focused on the Great Lakes to the neglect of other transboundary

waters. Some also have suggested that the IJC be given more independence, that its quasi-judicial, investigative and fact-finding functions be

strengthened, and that its capacity to anticipate, study and advise the

governments on emerging transboundary problems be improved.150

ISSUES AND CHALLENGES 147

150. B. Sadler, “The Management of Canada-US Boundary Waters: Retrospect and Prospect”, (1986) 26 Natural Resources Journal 274; International Joint Commission,

“Summary of the International Joint Commission Seminar on the IJC, Its Achievement, Needs, and Potential”, unpublished manuscript, Montreal, 1974, 26; Senate

Committee on Foreign Affairs, Canada-United States Relations, Vol. 1, The Institutional Framework for the Relationship, Ottawa: Senate of Canada, December 1975, 43;

L.B. Dworsky and D. Allee, “An Agenda for the Management of the Great Lakes on

a Long Term Ecosystem Basis”, in Great Lakes, Living with North America’s Inland

Waters. Symposium Proceedings, Herndon, VA: American Water Resources Association, 1988; and D.J. Allee, “Subnational Governance and the International Joint

Commission: Local Management of United States and Canadian Boundary

Waters”, (1993) 33 Natural Resources Journal 148.
The IJC itself addressed several emerging trends in its forward-looking 1997 report.151 Prepared in response to a specific request

by the United States and Canada, the report provided advice on how the

IJC might best assist governments to face the environmental challenges

of the 21st century. One of the report’s most significant recommendations was the establishment of international watershed boards along the

border.

Although the IJC enjoys a broad mandate to deal with boundary

water management issues along the US-Canada border, its highest-profile work has been carried out on water quality issues in the Great Lakes

region. The IJC’s success in implementing the Great Lakes Water Quality

Agreements has prompted recommendations that similar efforts be

made in other transboundary waters and that the ecosystem approach—

which involves all sectors of society in the protection and management

of ecosystems—be applied more broadly. The IJC’s recent reference on

the establishment of international watershed boards will in all likelihood apply the ecosystem approach all along the US-Canada border.

Another factor that appears to prevent the IJC from responding to

transboundary water issues as effectively as it might is a paucity of

resources. Most observers agree that the commission’s operating budget

and staff resources are inadequate to meet even the tasks it is currently

mandated to perform. The IJC’s staff in the United States, for example,

has not increased since 1982, in spite of an increase in responsibilities.

Implementation of plans to improve water quality and environmental health on the border are sometimes hampered by institutional

and financial obstacles that could be overcome by strengthening the role

of the IJC. For example, the Great Lakes Water Quality Agreements set

specific targets for remediating specific “areas of concern” through a

series of Remedial Action Plans (RAPs). At the same time, the Lakewide

Management Plan establishes a means for dealing with specific contaminants in the open waters of the Great Lakes. The RAP process, however,

has proceeded slowly because of the rigorous criteria that have to be met

in remediation, as well as the difficulty encountered in trying to reach a

consensus among all the affected stakeholders. Implementation of the

Lakewide Management Plans has been delayed for similar reasons. For

such remediation processes, the International Joint Commission acts as

referee rather than implementor. The responsibility for implementation

rests with domestic governments and their environmental agencies.

148 INLAND WATER MANAGEMENT REPORT

151. International Joint Commission, The IJC and the 21st Century, Ottawa, 1997.
Funding for remedial activities also has been a chronic problem, exacerbated by the many layers of government involved and the limited financial support from the federal governments.

Most observers of US-Canada transboundary water issues regard

the IJC as an excellent means of settling water disputes and overseeing

the management of common water issues. Not surprisingly, then, the

governments are often encouraged to strengthen and to make fuller use

of the commission. At the same time, some observers have suggested

that, once provided with sufficient funding and support from the parties, the commission itself could improve its operating procedures in

order to improve its performance. Critics have expressed concerns about

the commission’s oversight of the boards and study groups that report

to it, its shortcomings in coordinating its activities with government

agencies, its need to better specify desired objectives and standards, and

its need to develop a better database.152

Like other institutions involved in water management throughout

North America, the IJC faces growing demands to involve the public in

its decisions, programs and activities. Although the 1909 Boundary

Waters Treaty authorizes the commission to determine its own rules of

procedure, the treaty does require that all parties interested in a matter

be given “convenient opportunity to be heard.” These rules have permitted public participation at the level of IJC hearings, advisory board hearings and other proceedings as determined by the commission. The

annual meetings of the commission’s individual boards include a role

for public, as do its biennial meetings under the Great Lakes Water Quality Agreements.

The IJC’s orientation toward inclusiveness and public participation is also evident in the representation of water professionals and state

and provincial authorities on IJC boards. The commission has been particularly sensitive to the need for public involvement in refining and

implementing its mandate on the Great Lakes. For example, the IJC

solicited extensive public comment in 1986 on proposed amendments to

the 1978 Great Lakes Water Quality Agreement. The resulting 1987 protocol, annex II, requires that the “Parties, in cooperation with State and

Provincial Governments, shall ensure that the public is consulted on all

actions undertaken pursuant to this Annex.” The 1987 protocol also

ISSUES AND CHALLENGES 149

152. L.B. Dworsky, “The Great Lakes: 1955-1985”, (1986) 26 Natural Resources Journal

326-327; US General Accounting Office, Need to Reassess Participation in the International Joint Commission, Washington, DC, 8 June 1989; and B. Sadler, “Commentary”, (1993) 33 National Resources Journal 389-396.
provides for a “complex, decentralized, and highly participatory RAP

process and lakewide management planning process.153” Public consultation and involvement also figure prominently in other regions where

the IJC is active, including the St. Croix River, Rainy River, Red River

and Okanogan River.

Nevertheless, the IJC’s efforts to include the public in its deliberations have not been above criticism. In its 1989 report, the US General

Accounting Office noted. “The public’s access to, and involvement in,

the activities of the IJC has increased somewhat in recent years but is still

minor. The IJC co-chairmen have generally opposed increasing public

participation or representation because they believe that the level of

public participation is sufficient already.” In response to these concerns,

the IJC has tried to improve its public participation process—for example, the extensive public consultation process conducted in conjunction

with the 1999 reference on the use, diversion and removal of water along

the border.

6.6 Issues and Challenges Particular to the US-Mexico Border

Water management on the US-Mexico border occurs in a context of

generally scarce water resources and economic asymmetry between the

two countries. These conditions shaped the design of the treaties governing US-Mexico transboundary waters and the institutions created to

put them into effect. Historically, these treaties and institutions have

reflected a preoccupation with water scarcity and with the apportionment of surface water resources.

During the past three decades, rapid urbanization and economic

development in most parts of the border region have exacerbated the

problems associated with water scarcity. At the same time, water quality

and environmental protection have become important concerns.

The problems related to water scarcity have highlighted the need for

improvements in the management of transboundary water and in the

coordination of national and binational agencies in the border area. The

growing demands for public participation in water management have

added to the challenge of developing a more effective and responsive

binational framework. These demands are being met by several recent

initiatives.

150 INLAND WATER MANAGEMENT REPORT

153. M.L. Becker, “The International Joint Commission and Public Participation: Past

Experiences, Present Challenges, Future Tasks”, (1993) 33 National Resources Journal

267.
The 1906 and 1944 treaties for managing transboundary water

resources on the US-Mexico border deal mainly with surface water allocation; they devote scant attention to water quality, and even less to

groundwater and broader environmental concerns. Treaty authority for

managing water quality is limited to sewage and sanitation, and provides little scope for taking account of environmental factors in project

design and implementation. Most important, the treaties do not specify

national responsibilities related to the quality of transboundary waters.

This shortcoming was revealed by the problem of the high-saline waters

flowing from the United States into Mexico, particularly in the Colorado

River basin (see Chapter 4).

The 1983 La Paz Agreement provides a more comprehensive institutional basis for addressing water quality problems in the border area.

This agreement addresses water quality specifically, treating it as a high

priority. It also establishes an intergovernmental water working group

to consider water quality issues. The creation of the Border Environment

Cooperation Commission in 1994 was another step forward in handling

water quality problems on the US-Mexico border. The commission

applies strict environmental criteria to the sewage and sanitation projects it oversees, and its operating procedures may be applied in other

areas in the future.

A concern about the treaties that has yet to be addressed by subsequent agreements is their reluctance to include specific provisions for

the apportionment, management or protection of transboundary

groundwater resources. As the demands for water grow in the arid

boundary regions such as the Tijuana, San Pedro and Santa Cruz basins,

groundwater exploitation occurs at rates that often exceed the capacity

of the aquifers to recharge. The increasing demands for water and the

perception of growing scarcity in the border region are highlighting

other aspects of the treaties as well. These include their failure to apportion the surface water of certain rivers and streams, including the

Tijuana River, and the ambiguity with which they prescribe the management of sustained drought on the Colorado River and the Río Grande.154

In 1973, the United States and Mexico, through Minute 242, agreed

on the need to apportion and manage transboundary groundwater

resources. However, since then little progress has been made in establishing a groundwater management regime. Because of US plans to

build a new, lined All-American canal along California’s southern borISSUES AND CHALLENGES 151

154. A.E. Utton, “Overview”, in The US-Mexico Border Region: Anticipating Resource Needs

and Issues to the Year 2000, C. Sepulveda and A.E. Utton, ed., El Paso: Texas Western

Press, 1982, 7-20.
der with Baja California Norte, the issue of transboundary groundwater

resources has now taken on some urgency.155 The overappropriation of

water on the Colorado River and the recent sustained drought in the Río

Grande basin have highlighted the need to improve transboundary

water management in these areas. Furthermore, regimes for apportioning rivers and streams not covered by the 1906 or 1944 treaties have not

yet been established. The prospect of climate change, with its projected

disruption of local hydrology, adds to these concerns.

In addition to the limitations of the treaties just described, binational cooperation in addressing emerging transboundary water issues

is constrained by historical attitudes toward the apportionment of

water. Several important interests, both public and private, have become

established within the context of an apportionment regime that they are

now reluctant to change. This is particularly true of certain federal and

state water agencies, irrigation districts and municipalities on the US

side of the border. Apparently, these groups are sometimes unwilling to

consider alternatives to the status quo such as water markets and transfers, new regulations, and water conservation initiatives, because such

initiatives could have a significant influence on patterns of allocation.

The institutional framework established to manage transboundary

water issues on the US-Mexico border is evolving in response to changes

in circumstances. IBWC has functioned traditionally as a technical and

diplomatic agency, conducting its activities with little public participation. Lacking any treaty provision to consult the public, the commission

has tended to rely on a core of experts to guide its deliberations and has

refrained from making most of its communications available to the public.156 Its reputation appears to be changing, however, in the face of

demands that the commission become more responsive to public concerns. These concerns include the need to address the growing number

of water issues on the border, as well as the need to heighten the public’s

involvement in water management. Recent management reforms and

changes in procedure at IBWC have addressed these concerns.

The past 15 years have seen a clear trend toward greater transparency and public participation in water management on the US-Mexico

border. In 1983, the La Paz Agreement officially gave the environmental

152 INLAND WATER MANAGEMENT REPORT

155. US Department of Interior, Bureau of Reclamation, Final Environmental Impact Statement/Final Environmental Impact Report: All American Canal Lining Project, Imperial

County, California, Boulder City, NV: Bureau of Reclamation, 1994.

156. S.P. Mumme and S.T. Moore, “Agency Autonomy in Transboundary Resource

Management: The United States Section of the International Boundary and Water

Commission, United States and Mexico”, (1990) 30 Natural Resources Journal.
ministries of the two countries the lead in addressing a wide range of

water issues in a systematic and publicly responsive fashion. The La Paz

Agreement acknowledges IBWC’s leading role in the area of treaty-specific water management functions, but provides a regular process for

involving the public in the environmental aspects of managing

transboundary waters.

Since La Paz, IBWC has been drawn into more intensive cooperation with the domestic environmental agencies of the two governments

in discharging its functions.157 The result has been improved interagency cooperation and sharing of information. Historically, federal

agencies on both sides of the border have shown little inclination to

share functional control of water management. At the binational level,

competition for scarce water supplies has occasionally made Mexican

and US water management agencies reluctant to share information.

Such practices have worked against cooperative approaches to managing water in the border area. Beginning in 1991, however, EPA (and

IBWC) was given the budget authority to fund sewage projects—a

change that stemmed from the La Paz process and greater intergovernmental cooperation in the United States. And since 1983, the La Paz

binational water working group has helped to bridge some of the institutional barriers to data sharing and identifying common priorities, and

is now folded into the Border XXI process. BECC, with its intergovernmental and binational board of directors and its orientation toward institutional openness should deepen and accelerate this trend.

The Integrated Border Environmental Plan, 1992-1994 (now Border XXI), and the Border Environment Cooperation Commission further

institutionalize public participation in the management of transboundary water resources. The Border XXI process provides an opportunity

for the public to articulate concerns and to help shape priorities at the

level of the environmental ministries of the two countries.

Although it is too early to draw final conclusions about the significance of BECC, several aspects of its mission and structure suggest that it

has already begun to change water management practices in the border

area. First, BECC’s certification provisions require that proposed projects meet strict environmental criteria to qualify for support. These provisions are strengthened by EPA’s internal decision to make approval of

its domestic water infrastructure grants for border projects conditional

on BECC certification. Second, BECC’s inclusion of all stakeholders in

border constituencies, its procedural transparency and its orientation

ISSUES AND CHALLENGES 153

157. J. Knox, “Figuring Out the Relationship between the BECC and the IBWC”, (1996) 1

BECC Perspectives 1.
toward public participation in decision making are unprecedented for a

binational body on the US-Mexico border.

Some observers affirm that IBWC is growing more responsive to

border constituencies, partly as a result of BECC’s influence.158 Recent

initiatives by IBWC also suggest that the agency has responded to

changes in political and economic circumstances. These initiatives

include adopting BECC’s sustainable development criteria for project

development; including public participation in IBWC’s decisionmaking process; and making the work of IBWC more transparent to the

public.

154 INLAND WATER MANAGEMENT REPORT

158. Ambiente Fronterizo, “Agency Developments: BECC/NADBank”, March 1996, 18.

See also, <http://www.riogrande.org/proyecto/inventry/00563.htm>.
CHAPTER 7

Conclusion: Emerging Policy Considerations

Despite more than a century of research, cooperation and policy,

North America’s boundary and transboundary waters remain a source

of potential dispute in several regions. Nevertheless, Canada, Mexico

and the United States have shown a commitment toward developing

strategies that would protect the natural integrity of their boundary and

transboundary waters without compromising their legitimate rights to

social and economic growth, and well-being. As observed throughout

this report, significant obstacles must be overcome if all three countries

are to continue moving toward achieving sustainable development

practices in the management of boundary and transboundary water

resources.

This chapter presents the policy considerations that emerged from

this study. Although broad, they are meant to provide general guidelines to assist policy makers in generating long-term sustainable development strategies that are socially equitable and achievable. It is hoped

that these considerations will provide a basis for further discussion and

eventually serve in the elaboration and implementation of fully sustainable water management policies across North America’s border regions.

7.1. The Nature of Water Resources

The scale, diversity and complexity of management issues vary

from one transboundary basin to another. The majority of basins along

the US-Canada border are characterized by relatively high freshwater

availability relative to demand, improving quality and low rates of population growth (with the exception of the Great Lakes), which suggest

only modest increases in future demand. Conversely, basins along the

US-Mexico border are characterized by water scarcity —low availability

coupled with overallocation, increasing demand fed by rapid population growth, and declining water quality. In fact, scarcity is the most

important issue facing decision makers along the US-Mexico border.

155
Most other issues, such as resource vulnerability, are directly related to

scarcity and must therefore be addressed in that context.

Several issues are also common to both border regions. All areas

need a greater emphasis on valuing instream and environmental uses.

Although such needs will vary considerably from one basin to another,

the adoption of initiatives that place a greater value on ecological health

and ecosystem maintenance should be an essential and integral part of

any water management plan. These regions also need to recognize the

potential effects of airborne toxics/contaminants and atmospheric

change on freshwater resources and to assess how these may affect the

future balance between availability and demand.

7.2 The Availability and Adequacy of Information

Researchers and policy makers in water management need to

better coordinate the collection, interpretation and dissemination of

data on water supplies, demand, quality and projections. Data on

groundwater/surface water interactions is significantly lacking. Other

examples of unavailable or incomplete data sets are groundwater availability, quality and use (particularly in Canada and Mexico), and the

amount of water used for irrigation. More complete data sets are needed

more quickly in those areas where conflicts could emerge such as the

Columbia River basin, the Great Plains region, and all US-Mexico basins.

The relevant policy makers and institutions also need to improve

access to data and present data in forms useful for public participation

and overall decision making. Generally, consumptive use data from the

US side of the boundary basins are more accessible and detailed than

data from the Canadian and Mexican sides. Moreover, efforts to obtain

water-related data have been declining in several jurisdictions. In the

North American context, it is imperative that the data from neighboring

countries become standardized and harmonized into a coherent format.

It would also be useful to initiate, develop and eventually maintain

an inventory of indicators that have significant implications for water

management. It could include indicators relevant to climate change and

climate variability, ecosystems, health, pollution, economic growth and

restructuring, and social vulnerability.159

156 INLAND WATER MANAGEMENT REPORT

159. Such efforts are already under way along the US-Canada border.
7.3 The Allocation of Surface Water and Groundwater Resources

Officials dealing with regions of actual or potential scarcity need to

improve estimates of regional water availability in terms of the average

minimal flow of surface waters and the aquifer recharge rates. In some of

these regions, such as the Colorado River basin, the current allocation

frameworks and streamflow regulation practices are not entirely consistent with physical realities.

In the 21st century, the allocation of groundwater resources is

likely to be the subject of increasing debate for Canada, Mexico and

the United States. The council of the Organization for Economic

Cooperation and Development recommends that OECD member countries develop and implement comprehensive policies for the efficient,

sustainable development of groundwater resources and for their

long-term protection from pollution and overuse.

In border regions where groundwater represents a significant

supply source, officials will eventually have to negotiate transboundary

groundwater management agreements. Although many areas have

already adopted this policy, they have yet to take specific actions. It is in

the best interest of all border regions to adopt safe yield groundwater

use policies that would serve to protect vulnerable or overexploited

aquifers.

As the perceptions and requirements of various groups of citizens

evolve, so do their values on water management. An understanding of

this evolution can help guide decision making and policy through the

adoption of new forms of environmental and social impact assessment,

and public participation. Given the changing profile of regional water

demands as a result of economic transition and restructuring, coupled

with the recent growth in environmental awareness, there is a need to

rethink supply allocations and facility commitments (such as dam storage). Finally, actions to anticipate and meet basic human needs must be

taken into account and included in any revision of the current allocation

frameworks.

7.4 Demand Management and the Use of Economic Instruments

In view of the present lack of incentives for conservation in certain

regions, water managers should review the present water management

frameworks—particularly those facing growing water scarcity. HisCONCLUSION: EMERGING POLICY CONSIDERATIONS 157
torically, water management in North America has been characterized

by an overreliance on structural solutions. Recently, however, water

management has been shifting policies and actions away from supply

management and toward demand management. Essentially, demand

management establishes economic and social incentives for the sustainable use, conservation and protection of freshwater resources. One of the

most often-cited proposals for demand management is the concept of

water pricing.

Several international agencies, including the OECD and the World

Bank, have suggested that water pricing is the principal economic

instrument through which sustainable use patterns may be achieved in

areas of growing water scarcity. When the full cost of water is passed on

to the end-user, user awareness increases and wasteful consumption

decreases. Such an approach facilitates more rational and environmentally desirable management and use of water resources, and can lead to

a more cost-effective distribution of water resource within a regional

context.

In the context of transboundary water resources, the introduction

of economic instruments must be balanced with measures geared

toward avoiding unfair competition and international trade distortion.

Anyone contemplating the international harmonization of economic

instruments must consider the different environmental and economic

situations and fiscal structures in the countries involved.

Any pricing-based management strategies adopted must ensure

that social concerns are met, environmental resources are protected, and

monopoly pricing is prevented. Policies on water pricing should take

into account differences in per capita consumption by different social

groups. However, in areas with a substantial disparity of wealth, regulatory pricing frameworks must include provisions that ensure adequate

water and sanitation services for the poor. Where underprivileged users

are unable to meet the costs associated with water pricing regimes, targeted support mechanisms such as water credits could help to achieve

and maintain equity.

One of the main obstacles to developing and implementing

full-cost pricing is the definition of “full cost.” Ideally, market-based

pricing mechanisms should add the cost of mitigating ecosystem and

other environmental impacts to the price of supply, storage and delivery. However, placing a value on the ecosystem can be difficult and contentious.

158 INLAND WATER MANAGEMENT REPORT
7.5 A Sustainable Future: Large-scale Freshwater Exports and

Water Management Decisions

Water exports can be defined as the withdrawal of water from surface waters or from groundwater for the purpose of selling it to a third

party outside the country for profit. Such a third party may be in a neighboring jurisdiction or may, in fact, be in a different part of the world. The

emerging issue is water exports in bulk, and how trade law and principles may or should relate to such exports.

Bulk water exports are diversions or withdrawals from a source

that are in addition to or potentially in competition with the normal

apportionment of water for uses within that watershed. This can be the

apportionment of water sources that are wholly domestic, such as an

individual lake or a river beginning and ending in one country. It may

also be a withdrawal or diversion from boundary or transboundary

waters. In this case, the water export apportionment would be in addition to the traditional boundary/transboundary water management

regimes that have developed on each North American border.160

Whether the proposed source for water exports is a domestic one or a

boundary/transboundary one is most likely to be based on economic

and availability factors. Potential examples of both are now known.

In the North American context, policy considerations about water

exports tend to be strongly influenced by the relative scarcity of water in

many parts of Mexico and the southern United States and the relative

abundance of water in Canada and the state of Alaska. Water shortages

present immediate management challenges related to both human and

ecosystem health. The longer-term potential for permanent shortages

entails risks of political conflicts or of environmental refugees, even in a

North American context. Water imports may help alleviate short-term

problems and improve longer-term management potentials. But at the

same time, some people assert that importing water is a potential disincentive to taking strong pricing and conservation measures.

Until the past decade, the rules underlying water apportionment

within and between countries reflected principles of equity (including

CONCLUSION: EMERGING POLICY CONSIDERATIONS 159

160. In its interim report under the Water Uses Reference, released 18 August 1999, the

IJC recommended that “for the next six months while the IJC completes its investigation, US and Canadian federal, state and provincial governments should not

authorize or permit any new bulk sales or removals of surface water or groundwater of the Great Lakes basin.” The commission also advanced an interim recommendation that “no removals of surface water or groundwater be allowed that would

endanger the integrity of the waters of the ecosystem of the Great Lakes basin.”
equality in appropriate cases), not trade rules or principles. Applying

principles such as national treatment or most-favored-nation treatment

from the trade law domain to water use, rights or apportionment poses

a variety of management challenges. If commercial trade in water

resources does become a reality, policy arguments against the application of trade principles are likely to be diminished.

Any shift from traditional apportionment approaches toward the

application of trade principles should recognize the nature of this

shift—that is, such a shift would move beyond the traditional needs for

water management of a national or international water basin to what in

effect would be the internationalization of previously unrecognized

commercial rights to the water in potentially any watercourse. The significance of such a step in the management of a vital, perhaps the most

vital, natural resource cannot be underestimated. The emerging challenge for policy makers is one of specifically addressing this issue before

challenges materialize,161 rather than relying on arbitration panels to

determine the application of trade agreements to water issues.

Better decision making requires a more comprehensive and

detailed level of knowledge. Long-term water management, specifically

of allocation, must take into account the potential impacts of climate

change and variability, which are likely to affect water availability.

Long-term management policies also must consider the effects of economic restructuring on water use.

A broader range of actors could be incorporated into decisionmaking processes. In many cases, local governments possess useful and

sometimes vital knowledge and are therefore best suited to deal with

local problems. The capacity for local actors (governments and other

local organizations) to pursue local solutions should be encouraged and

strengthened, along with policies allowing for greater public participation generally.

160 INLAND WATER MANAGEMENT REPORT

161. In the same interim report, the IJC concluded that “international trade law obligations, including the provisions of the Canada-United States Free Trade Agreement,

the North American Free Trade Agreement and World Trade Organization agreements, including the General Agreement on Tariffs and Trade (GATT), do not

appear to prevent Canada and the United States from protecting their water

resources and preserving the integrity of the Great Lakes basin ecosystem. Canada

and the United States cannot be compelled by trade laws to endanger the waters of

the Great Lakes ecosystem.”
APPENDIX:

Transboundary Basin Fact Sheets

Transboundary Basin Fact Sheets

These fact sheets summarize the nature and current status of freshwater resources in North America’s transboundary basins. For this summary, the US-Canada border regions were divided into five basins and

the US-Mexico border into four basins. The basins were selected and

defined primarily on the basis of geographic size and distribution, and

therefore do not necessarily reflect actual hydrogeographic boundaries,

particularly in the cases of the Great Lakes–Lake of the Woods and

Atlantic–St. Lawrence regions.

The basin fact sheets focus mainly on water supply, demand and

management. In addition, they identify issues that may figure importantly in future allocation and water management decisions.

Basin characteristics describe the overall physical, social and economic context in which water use and management are taking place.

Physical factors determine overall water availability and often have an

influence on the complexity of water management decision making.

Social and economic factors frequently influence how water is allocated

among competing demands.

Balance of uses not only identifies the principal water consumers

and main supply sources, but also includes information on the adequacy

of available data. Moreover, this section reveals where missing or inaccurate water use data pose barriers to productive decision making on

controversial water management issues related to both current and

future use. The current and projected allocation of water use is, of

course, at the heart of water management decisions in the domestic and

transboundary contexts. Use patterns vary substantially among the basins examined in this report, although patterns are similar along the

US-Mexico border and along the US-Canada border.

Management issues include broad topics such as equity, water

use efficiency, environmental concerns, and recreational issues.

Equity/equality and efficiency issues reflect the increasingly important

economic, social and, in some cases, political aspects of water manage163
ment decision making. Environmental and recreational needs are

emerging in some basins as major, if not controlling, issues, even in the

transboundary context. Finally, several of the basins present issues that

are somewhat unique to that basin, at least relative to the others examined for this report. These special issues range from severe drought to

recurrent mega-diversion proposals to serious water quality problems.

Each basin fact sheet also includes a brief discussion highlighting

the most important issues affecting (or likely to affect) transboundary

management. These may include, among others, areas and issues of

potential conflict, gaps in the current management framework, and

evolving environmental concerns.

164 INLAND WATER MANAGEMENT REPORT
Yukon River Basin and Northwestern

International Drainage Area

BASIN CHARACTERISTICS

Geographic Extent/ Yukon is the fifth largest basin in North

Hydrologic Complexity America (895,000 km2). Extensive snow

fields and glaciers; sub-permafrost aquifers.

Water Availability Linked to snow melt; abundant water,

relatively low consumption.

Population Very sparse; fewer than 60,000 over

entire basin.

Economic Trends Major industries: mining and tourism.

BALANCE OF USES

Data on Current/ Based on 1990-1991 water use surveys; use

Recent Use levels mostly estimated. Fewer data

available for Canada, especially for

nonconsumptive uses in mining industry.

Data on Projected Use No projections available; historical and current

data suggest no significant increases in use.

Dominant Uses Industrial (mining), followed by municipal.

Supply Sources Primarily surface water (mostly snow melt).

Future Demand/Shortages No projections available, but large growth in

use not expected and entire region has a

great abundance of water.

MANAGEMENT ISSUES

Equality Issues No significant equity issues.

Water Use Efficiency Issues No significant efficiency issues.

Environmental Needs/ Yukon supports salmon fishery; important

Issues spawning grounds. Basin is also important to

a huge variety of migratory birds and wildlife.

Recreational Needs/ Basin’s rivers provide wildlife viewing,

Issues canoeing and other recreational opportunities.

APPENDIX 165
Special Issues Recurrent proposals for mega diversion projects

to supply out-of-basin needs. Localized water

impacts from mineral mining.

In addition to the Yukon River basin, which is the fifth largest in

North America, several other contiguous boundary basins lie in the

Northwestern International Drainage Area. The most significant of

these are the Alsek, Taku and Stikine Rivers, which flow from Canada

into the Alaskan Panhandle. Some of the tributaries within the Yukon

basin are themselves boundary waters, the most important of which are

the White, Porcupine and Fortymile Rivers.

166 INLAND WATER MANAGEMENT REPORT
Figure 1: Northwestern International Drainage Area

Source: Adapted from a map titled “Current Activities of the International Joint Commission 1995,” Gregory Geoscience Limited, 1995.

Mining and tourism, the major industries, form the economic base

of the region. Smaller industries include forestry, hunting, fishing and

trapping. Population migration patterns in the area respond strongly to

economic opportunity. Basin residents are relatively younger than those

APPENDIX 167
in North America generally. A large number tend to be young people

who come to take advantage of high-paying jobs and then leave as

employment opportunities decline. Aboriginal residents are highly

dependent on the Yukon River and its tributaries for transportation and

subsistence fishing.

Freshwater consumption on the Alaskan side of the border is dominated by the industrial sector, which accounts for roughly 70 percent of

the uses in the Yukon and other boundary basins. On the Canadian side,

municipal water systems are the most important water consumers. The

Yukon Territory’s mineral extraction industry, which consists of metal

mining, nonmetal mining and coal mining, requires as much water as

the municipal sector, but its consumptive use is very close to nil.

Water quality conditions throughout the area are suitable to support most uses. Most public sewage receives some treatment, and industrial discharges are subject to environmental regulation. Some localized

problems exist, however. For example, placer mining requires large volumes of water, resulting in changes to the landscape and some water

quality degradation. Nevertheless, general water quality conditions in

the Yukon River itself are not, and are unlikely to become, an international issue in the foreseeable future. Of more immediate concern are

specific developments on smaller tributaries in the vicinity of the boundary. Some current examples include increased placer mining on the

Fortymile River (US-Canada) and Moose Creek (Canada-US).

Some contentious issues also have emerged in contiguous basins

flowing from Canada to the Alaska Panhandle. For example, establishment of a World Heritage Site Park linked to two national parks in the

United States precluded development of the Windy Craggy Mine on

Tats Creek in the upstream part of the Alsek River basin. The developer

sought compensation. Other potential developments with transboundary implications include several additional mine proposals in the

Stikine-Iskut and Unuk basins. The Eskay Creek mine in the Unuk basin

was granted a mine certificate in 1994 and is operational. Another proposal in the Tulsequa basin in British Columbia is currently under

review, with Alaska officials participating.

With the exception of localized problems due to seepage from septic systems, landfills and abandoned fuel tanks in the Fairbanks area, the

basin’s groundwater has been virtually unaffected by human activity.

No issues related to groundwater quality along the Yukon-Alaska border have been documented. Nor is there any evidence of large-scale

168 INLAND WATER MANAGEMENT REPORT
groundwater degradation caused by industrial or mining activity on

either side of the boundary.

At least 20 species of fish inhabit the Yukon basin, including 17

freshwater and three anadromous species. The most prevalent species

are Chinook salmon, chum salmon, lake trout and arctic grayling. A

commercial fishery for Chinook and chum salmon has existed in the

basin since 1903. Sport fishing is a major component of water-based recreation, and the fishery is a significant food source for aboriginal people.

As elsewhere in North America, rising demands could threaten the

long-term sustainability of this resource.

Some water-related phenomena are important for wildlife. Spring

floods renew the nutrients critical to river valley productivity. Fall

drawdown results in exposure of feed at waterfowl staging areas and

winter drawdown creates air spaces below river ice, providing foraging

areas for muskrat. The areas that remain ice-free during winter are

important to both resident and migrating waterfowl. And the erosion

and deposition of sediment maintain deltas and river valleys in a state of

dynamic equilibrium, providing a more or less constant set of habitats

for plants and animals. Clearly, any changes in the hydrologic or quality

regimes that would significantly affect seasonal rhythms in nature

would affect biological diversity in and well beyond the basin.

Over the next several decades, it is not anticipated that events

within the Yukon River basin will lead to significant boundary waters

issues. Population and industrial activity in the Canadian portion of the

basin are not expected to create significant changes in the streamflow,

water balance or water quality regimes at the international boundary.

However, it is almost certain that the number of very localized

issues will continue to arise. Most of these are likely to involve mining

developments on streams flowing to the Alaska Panhandle, or on

smaller boundary streams within the Yukon River basin. Localized

issues also are likely to be associated with wilderness designations

which may limit either access or development in the upstream jurisdiction. Finally, there is a moderate possibility that smaller-scale diversions

may be created from the headwater lakes for hydroelectric development, or that significant hydroelectric development may take place on

the main stem of the Yukon itself. If so, it is likely that such developments will be undertaken to meet demands outside the basin and that

the transboundary implications will be significant. Those implications

will relate to changes in the flow regime and in turn to a number of ecological variables.

APPENDIX 169
Columbia River Basin

BASIN CHARACTERISTICS

Geographic Extent/ Basin covers 646,000 km2. Columbia River is

Hydrologic Complexity one of the most extensively dammed rivers

in North America.

Water Availability Primary source is snow melt, with peak flows

in summer. Rainfall contributes to flows in

winter.

Population Some areas sparsely populated; others

(including the British Columbia portion

of the basin) growing rapidly.

Economic Trends Irrigated agriculture remains important.

Tourism and recreation are increasing.

Forestry is significant in British Columbia.

BALANCE OF USES

Data on Current/ Generally inadequate. Some analysis done

Recent Use in US portion of basin for review of

dam operations and new water rights

database in British Columbia.

Data on Projected Use Projections available for US side only (USGS).

Other Information New efforts by agencies to better characterize

water use under way in both countries.

Dominant Uses Hydroelectricity (nonconsumptive), forestry

(BC), irrigation (US portion). Municipal use

is less than four percent on average.

Supply Sources Surface water is the primary source.

Future Demand/Shortages Abundant water. Conflicts around flow

management, however, may affect

availability for certain uses.

170 INLAND WATER MANAGEMENT REPORT
MANAGEMENT ISSUES

Equality Issues Conflicts between irrigation uses and municipal

needs (BC portion) and instream flow needs

(US portion) and conflicts between hydroelectric and other uses (particularly instream

needs). Cross-border equity issues regarding

hydropower generation and irrigation

allocations.

Water Use Efficiency Issues Subsidization of irrigation water; little

progress in conservation by irrigation users.

Environmental Needs/ Major conflicts between flow needs for

Issues endangered salmon and other fish and

hydropower and irrigation uses—one of

the most important issues in the basin.

Recreational Needs/ Reservoir water levels can affect recreational

Issues opportunities, creating conflicts with

hydropower use. Maintaining flows in river

for recreation is also an important issue.

Special Issues Fisheries restoration efforts under the

Endangered Species Act in the US portion

of the basin; cross-border hydropower

generation disputes.

The Columbia River has been described not only as a scenic treasure and ecological gem, but also as the economic backbone of the entire

Pacific Northwest in the United States and central interior of British

Columbia. Although the high-technology fields of aerospace engineering, scientific instruments and computer programming now contribute

42 percent of all employment in the Pacific Northwest, the Columbia

basin remains a supplier of many raw materials and semifinished manufactured goods.

APPENDIX 171
Figure 2: Columbia River Basin

The Columbia is one of the most extensively dammed rivers in

North America. Federal dams built on the Columbia and its tributaries

beginning in the 1930s, as well as many nonfederal projects, support the

numerous uses of the basin by diverting, regulating and storing water

for consumptive and instream uses. Investment in these dams and

related infrastructure has enabled many uses to coexist and, thus far,

share the water resources within the Columbia River system. Nevertheless, hydroelectricity, flood control and navigation have been favored

over all other uses.

Little has been written on water uses in the Columbia basin, reflecting perhaps that, until recent years, water has been plentiful in the basin.

This situation changed rapidly over the past decade with the identifica172 INLAND WATER MANAGEMENT REPORT
tion of endangered anadromous salmon and other species in the US section of the river, and the need for massive water releases in an effort to

flush fry through the large reservoirs and past the dams. As shown in

Figure 3, dams have blocked off nearly 50 percent of available salmon

habitat in the Columbia basin.

Figure 3: Changes in Available Salmon

Habitat in the Columbia River Basin

The 1961 Treaty between Canada and the United States of America

Relating to Cooperative Development of the Water Resources of the

Columbia River Basin, better known as the Columbia River Treaty, and

subsequent agreements legitimized hydroelectricity as the dominant

water use on both sides of the border. However, beginning in the 1970s

this agreement also led to conflicts with the needs of fisheries and recreAPPENDIX 173
ation for special flow conditions. Later, new patterns of reservoir

releases were adopted in an effort to promote the sustainability of

anadromous fish. These changes significantly reduced streamflow for

energy use in the United States and, to a comparatively minor level, in

Canada. Recently emerging water conflicts in the basin relate to the special levels and flows required to maximize recreation benefits in both

countries. The Columbia River Treaty, however, does not recognize recreation as a legitimate water use and hydroelectric agencies in each

country, augmented by federal flood control interests in the United

States, decide how much, and when, water will be allocated for recreational purposes. To date, hydroelectricity needs have been paramount

in this conflict.

Consumptive water uses have been growing in both portions of

the basin. Irrigation is currently the largest consumer of water in the

basin (90 percent), with six percent of the flow in the United States allocated to this use. By comparison, only two percent of the Canadian consumption of a much smaller volume of flow is used in irrigation. On the

Canadian side of the border, the largest industrial water user is the forestry industry, with a smaller volume allocated to mining. The only large

city on the river, Portland, Oregon, uses other watersheds to supply its

domestic needs, so municipal use of water from the Columbia is modest.

Commercial and industrial water demand is also comparatively small

compared with the volume of flow.

In general, water quality problems in the Columbia basin are less

significant than in some other basins in North America. Point source

pollution has been drastically reduced through regulation in recent

decades, and the remaining concerns largely revolve around the effects

of non-point source pollution and the effects of dams on water quality.

On a basinwide scale, the water problems that remain at the forefront

include: temperature, sedimentation, dissolved gas levels, dioxin concentrations, PCB contamination, and interactions between surface and

groundwater.

Over the next decades, sustainable management of the Columbia

River basin’s water resources will require combined efforts between

Canadian and US institutions. As the basin population grows and industrial water uses increasingly compete for the finite resources within the

basin, it would be useful to assign planning and monitoring functions to

a regulatory body. Given current fiscal constraints in both countries, it

seems prudent to assign this task to existing institutions. Doing so

would heighten the prospect that mutually agreeable resource and environmental policies will be adopted in each country, increasing the probability of continued harmonious international relations.

174 INLAND WATER MANAGEMENT REPORT
Great Plains Region

BASIN CHARACTERISTICS

Geographic Extent/ Five main basins crisscross the border:

St. Mary, Milk, Poplar, Souris and Red

Hydrologic Complexity Rivers. Several storage reservoirs are located

in the basin.

Water Availability Arid to subhumid continental; spring flooding

from snow melt; seasonal periods of heavy

rainfall (highly variable), near-surface aquifers.

Population Generally sparse; concentrated in urban areas

of Red River Valley and Winnipeg, Manitoba.

Economic Trends Still largely agricultural (farming and

ranching); tourism increasing.

BALANCE OF USES

Data on Current/ Relatively good data on existing uses in both

Recent Use countries due to boards of control activities;

lack of data on agricultural use in Canada.

Data on Projected Use Projections available for US side only (USGS).

Other Information Groundwater vulnerability mapping is being

developed in the Prairie provinces.

Dominant Uses Irrigated agriculture is the dominant use in all

four basins. Thermoelectric power production

is a large user in the Canadian portion of

Souris River basin.

Supply Sources Surface water is the primary source in the Milk

and Poplar Rivers. Groundwater is important

in the Souris basin and constitutes about half

of supply in Red River basin.

Future Demand/Shortages Potential shortages for irrigators in Montana

portion of Milk River during prolonged

drought; potential shortages in Souris River

basin during drought.

APPENDIX 175
MANAGEMENT ISSUES

Equality Issues Cross-border allocations governed by various

bilateral accords, but Canada not yet using

full allocation in some basins.

Water Use Efficiency Issues Relatively little information available on water

use efficiency for irrigation or municipal needs.

Environmental Needs/ Maintaining adequate streamflow for wildlife

Issues refuges; loss of habitat due to reservoir

construction in Saskatchewan portion of

Souris River basin.

Recreational Needs/ Sport fishing in free flowing rivers is an

Issues important source of tourism revenue

in some areas, mostly in the United States.

Special Issues Garrison Diversion Project raised concern about

effects of transbasin diversions on aquatic biota

in Souris River in Manitoba. Major flooding

along the Red River in 1997 led to a reexamination of flood control infrastructure.

The Great Plains region occupies some two million km2 in southern Canada and the northern United States. The climate throughout

most of the area is subhumid continental, except for the region that lies in

Montana, southwestern Saskatchewan and southeastern Alberta, where

it is generally classified as arid to semiarid. For international water management purposes, the transboundary waters are administered on the

basis of hydrologic units, the most important being the St. Mary, Milk,

Poplar, Souris and Red River basins.

176 INLAND WATER MANAGEMENT REPORT
Figure 4: Great Plains Boundary Basins

Source: Adapted from a map titled “Current Activities of the International Joint Commission 1995,” Gregory Geoscience Limited, 1995.

The population in the boundary water basins is generally sparse,

numbering about 1.6 million. Over 75 percent is concentrated in urban

areas of the Red River Valley. The region’s economy is largely based on

agriculture. Livestock raising and irrigated agriculture is greatest in the

western part of the region (Montana, Alberta), shifting to a mixture of

APPENDIX 177
grains and specialty crops toward the east (Saskatchewan, North

Dakota). In the eastern extremity of the region, the economic base

becomes more diversified with the presence of urban centers such as

Winnipeg, Grand Forks and Fargo, which have significant manufacturing and industrial activities. Water consumption is dominated by irrigation throughout most of the basin. Livestock watering and domestic,

industrial and power generation uses are also important in certain

regions. Because this area is generally short on water, the issues of water

use and interjurisdictional water sharing are both extremely important

and closely interrelated.

In spite of being part of separate continental drainage systems, the

St. Mary and Milk Rivers are jointly administered for international purposes. Substantial quantities of water are diverted from the St. Mary

River to the Milk River in the mountain headwaters to augment the

water supply for irrigation downstream in the arid prairie region of

Montana. The waters of these rivers are heavily used for irrigation,

which accounts for more than 90 percent of all consumptive uses on both

sides of the border. In general, the waters of the St. Mary and Milk Rivers

are shared equally between the two countries, with the upstream country responsible for ensuring the delivery of at least 50 percent of the natural flow. Significant excess deliveries occur only in wet years. Water

quality has not yet been raised as an international issue in the area, but

Alberta irrigation return flows could potentially create undesirable

salinity at the boundary. Alberta has imposed a unilateral limit on irrigation return flow to the Milk River of 10 percent of river flow in an attempt

to prevent this problem from arising.

In the Poplar basin, several small streams drain south across the

border to the Missouri River east of the Milk River basin. These streams

drain a semiarid prairie region with low and highly variable runoff characteristics. No formal international apportionment agreement has been

established for the Poplar River, but since 1976 an informal arrangement

based on an IJC recommendation has been used. The recommended

apportionment provides for equal sharing, with flexibility for Saskatchewan to use more than half of the water from individual streams. Provision is also made to assure Montana a certain base flow to meet the needs

of existing users. No problems with meeting this informal understanding have been documented. The International Poplar River Quality

Board has shown that quality objectives set in 1979 have been met, and

that the boron and total dissolved solids (TDS) concentrations were very

close to the objectives during drought years in the late 1980s and early

1990s. Wetter conditions in recent years are diluting these minerals and

the overall quality has been improving.

178 INLAND WATER MANAGEMENT REPORT
The Souris River drains from southeastern Saskatchewan into

North Dakota, then crosses back into Manitoba. Water quality in the

Souris River is relatively poor, especially during low flow periods. Agricultural runoff, municipal and industrial effluent, and intensive livestock operations contribute high levels of total dissolved solids,

nutrients and bacterial contamination and result in depressed concentrations of dissolved oxygen. In Manitoba, pollution has restricted recreational uses such as fishing, swimming and hunting in some areas.

Prompted by proposals for relatively large storage reservoirs at Rafferty

and Alameda in Saskatchewan, the United States and Canada signed the

Agreement for Water Supply and Flood Control in the Souris River

(1989). Under this agreement, Saskatchewan has the right to divert, store

and use waters that originate in the Saskatchewan portion of the Souris

River basin, provided that the annual flow of the river at Sherwood

Crossing is not diminished by more than 50 percent. In recent years, Saskatchewan has regularly released water from storage in order to meet

apportionment requirements.

The Red River forms the border between the states of North and

South Dakota and Minnesota and flows north into Lake Winnipeg. Flow

apportionment has not yet become an issue in the Red River basin,

where groundwater supplies roughly 50 percent of all the freshwater

used. The high levels of pollution of the 1960s have been largely overcome by upgrading sewage treatment. However, monitoring indicates

that the objectives are still exceeded for certain parameters (mineral

quality indicators, chloride, TDS) during low flow periods.

The most important ecological issues in the Great Plains region are

the effects of diversion and storage infrastructures (the proposed Garrison Diversion Unit in the Dakotas and the Rafferty and Alameda Dams

in Saskatchewan) on wildlife habitat.

The waters from the Rocky Mountains to the Saskatchewan-Manitoba border are already heavily used, mainly by existing

irrigation and thermal power developments. There will be little opportunity for meeting new demands unless some existing uses are

discontinued. Groundwater, which is relatively abundant but highly

vulnerable, may represent an untapped source, but it has yet to be incorporated into the present transboundary management framework.

APPENDIX 179
Great Lakes Basin

(Including Lake of the Woods)

BASIN CHARACTERISTICS

Geographic Extent/ Great Lakes-St. Lawrence basin is largest

Hydrologic Complexity body of freshwater in the world. The

Lake of the Woods basin covers less

than 75,000 km2.

Water Availability Snowfall, rainfall and runoff into lakes.

Groundwater is relatively abundant.

Population Great Lakes environs have a highly urbanized

population of over 33 million; Lake of

the Woods is only sparsely populated.

Toronto (Canada) is only area showing

significant growth.

Economic Trends Manufacturing, services, trade and tourism.

Agriculture important in some areas.

BALANCE OF USES

Data on Current/ Use data generally adequate.

Recent Use

Data on Projected Use Some projections available from the

International Joint Commission.

Other Information Extensive information available on water

quality, including toxics and nutrient loadings.

Dominant Uses Industrial, municipal and electric power

production (hydro, coal and nuclear).

Recreation and navigation are the most

important instream uses.

Supply Sources Surface water is the primary source, although

groundwater use is important in Wisconsin

and some other areas.

Future Demand/Shortages No predicted shortages. Groundwater

availability could be compromised by

localized contamination.

MANAGEMENT ISSUES

Equality Issues Projects involving major diversions and

bulk water exports continue to arise.

180 INLAND WATER MANAGEMENT REPORT
Water Use Efficiency Issues Not an issue given availability.

Environmental Needs/ Major focus is on improving Great Lakes

Issues water quality, restoring fisheries and

protecting other aquatic life, including habitat.

Recreational Needs/ Some conflicts over lake level management.

Issues Recreational use of lakes is economically

important.

Special Issues Challenges of water quality improvement and

protection in a binational, multijurisdictional

context.

When considered as a single hydrological unit, the Great Lakes

basin is the largest freshwater reservoir in the world. Extending over

1,500 km east to west and three-quarters of that north to south, the size of

the Great Lakes alone warrants a comparison with oceans. The number

of studies and reports on the status and management of Great Lakes

freshwater resources is enormous when compared to those conducted

on and written about other transboundary basins.

As they have done for centuries, the Great Lakes and their connecting channels provide a major transportation and trade pathway into

North America. The basin supplies freshwater to a large, mostly urbanized population, meeting the demands of industrial, commercial,

domestic and agricultural sectors alike. Of the 34 million people living in

the Great Lakes basin, nearly 75 percent are in the United States. The

American population is concentrated along Lakes Erie and Michigan,

whereas the majority of Canadians live along Lake Ontario. The Great

Lakes also constitute a vital aquatic ecosystem, supporting commercial

and sport fisheries as well as other recreational activities. The main international management issues of the Great Lakes are quality maintenance,

navigation and lake level and flow regulation through diversions, and

hydroelectric power generation.

In contrast to the Great Lakes, the Lake of the Woods basin remains

a wilderness area, serving a special clientele devoted to conserving its

environmental and ecological integrity. In fact, recreation and tourism

are one of the region’s major revenue-producing sectors. The entire

basin is populated by fewer than 150,000 inhabitants, the large majority

of whom live in municipalities such as Kenora and Fort Francis in

Ontario and International Falls and Beaudette in Minnesota.

APPENDIX 181
Figure 5: Great Lakes-Lake of the Woods Basins

Source: Adapted from a map titled “Current Activities of the International Joint Commission 1995,” Gregory Geoscience Limited, 1995.

182 INLAND WATER MANAGEMENT REPORT
The predominant management issues in the Lake of the Woods

basin are flow regulation and lake level maintenance in light of the

recent increased frequency of spring flood events. Water quality in the

Lake of the Woods basin has improved over the past several decades

because of an increase in the number of local municipal treatment plants

and remedial measures at the two major pulp and paper plants in Minnesota and Ontario.

Size and capacity are the fundamental characteristics governing

the balance of water in the Great Lakes. For all practical purposes, Great

Lakes water is sufficient to meet future regional demands. However,

although the Great Lakes hold 20 percent of the world’s freshwater, only

a very small portion is renewed annually and only the top few centimeters are usable given the infrastructure in place. Thus consumptive uses,

diversions into and out of the basin, and water allocation for hydropower generation combine to exert a significant influence on the system’s hydrological and ecological balance.

Water quality continues to be the primary water management

issue in the Great Lakes. Despite some improvements throughout the

70s and 80s, the overall water quality of the Great Lakes remains quite

variable. With open lake pollutant concentrations such as phosphorus

still exceeding targeted guidelines in several areas, it has become obvious that new approaches are required to ensure the sustainable management of the basin’s water resources.

Over the past decade, water quality assessment has shifted from a

quantitative to a more qualitative analysis in order to improve public

understanding about quality conditions under the Great Lakes Water

Quality Agreement. Other tools, such as the 1994 State of the Lakes

Ecosystem Conference (SOLEC), have proven to be valuable in defining

current quality issues. Because loadings of toxins and nutrients within

the basin have decreased significantly, investigators are now turning

toward other possible pollutant sources, such as the long-range transport of airborne contaminants, to explain the recent lack of progress in

water quality remediation. Given the vastness of the lakes and their high

level of spatial variability, it is essential that extensive data-gathering

initiatives continue and that the public be kept informed. The use of indicators represents a new and promising direction in identifying needed

information.

The IJC should continue to strive for an improved informationgathering and analysis process that will allow it or some other appropriate entity to provide objective advice to the two governments on the

APPENDIX 183
management of the broad Great Lakes basin ecosystem. While such a

goal may seem a small matter, it has great significance in placing the

long-term management of the Great Lakes on a firm basis and in reducing the opportunity for the governments to be surprised by unforeseen

events or by events that require a long lead time to be met in an effective

way.

184 INLAND WATER MANAGEMENT REPORT
Upper St. Lawrence and

Atlantic Drainage Basins

BASIN CHARACTERISTICS

Geographic Extent/ Basin extends 1,000 km and includes many

Hydrologic Complexity transboundary rivers, streams and lakes.

Extensive network of near-surface and

deep bedrock aquifers.

Water Availability Outflow from Great Lakes; abundant

precipitation year-round; high-yield aquifers.

Population Mostly rural communities on US side; several

small to medium-size municipalities on

Canadian side; population growth nil over

past decades over the entire region.

Economic Trends Wide-ranging: agriculture (Vermont and

Quebec), forestry and lumber (Maine and

New Brunswick), tourism, pulp and paper,

textile, manufacturing.

BALANCE OF USES

Data on Current/ Based on 1990-1991 water use surveys.

Recent Use Data on agricultural use are lacking;

groundwater withdrawals for Canada

are not fully quantified.

Data on Projected Use No projections available (current population

and economic growth patterns suggest only

minimal increases in demand/use).

Other Information Quality data available for St. Lawrence and

St. Croix Rivers. Water use data from

Quebec difficult to access.

Dominant Uses Thermoelectric power, manufacturing and

municipal uses. Agricultural use of

groundwater (Quebec) mostly undocumented.

Supply Sources Surface water is the primary source in the west;

importance of groundwater generally increases

from west to east.

Future Demand/Shortages No predicted shortages.

APPENDIX 185
MANAGEMENT ISSUES

Equality Issues No significant equality issues.

Water Use Efficiency Issues No significant efficiency issues.

Environmental Needs/ St. Lawrence wetlands are not included in

Issues present US-Canada environmental agreements.

Proposed flood control infrastructures could

affect wildlife. Eutrophication is problem

in several lakes.

Recreational Needs/ Tourism (hunting, fishing, camping, boating

Issues etc.) remains very important to the regional

economy. Local water quality problems have

occurred along several lake beaches.

Special Issues Area continues to be subject to pollutants from

outside the basin, such as contaminants flowing

out of the Great Lakes and the long-range

transport of airborne pollutants. Spring floods

along the Richelieu basin are a recurring issue.

The St. Lawrence-Atlantic drainage region includes several

transboundary and boundary waters from the Great Lakes to the Bay

of Fundy. The international reach of the St. Lawrence, a portion of the

St. John River and most of the St. Croix River lie along the international

boundary. Two other major transboundary streams—the Richelieu

River crossing the New York-Quebec border, and the St. François River

crossing the Vermont-Quebec border—flow north from the United

States into the St. Lawrence.

186 INLAND WATER MANAGEMENT REPORT
Figure 6: Upper St. Lawrence-Atlantic Drainage Basins

Source: Adapted from a map titled “Current Activities of the International Joint Commission 1995,” Gregory Geoscience Limited, 1995.

This boundary region is home to roughly 2 million people, just

over half of whom live on the Canadian side. Population density generally decreases from west to east on both sides of the border. In the United

States, the larger centers such as Massena, Plattsburgh and Burlington

give way to smaller, mostly rural communities in Vermont and Maine.

The pattern is similar in Canada, with the exception of a few larger

municipalities such as Fredericton and Saint John in New Brunswick.

APPENDIX 187
The St. Lawrence River and the Great Lakes basin which forms its

headwaters make up one of the most economically significant water systems in North America. A large variety of manufacturing and transformation industries, located on or near the upper St. Lawrence shoreline,

benefit from one of the world’s most vital commercial transportation

routes. The economic base of the southern tributaries to the St. Lawrence

are perhaps best typified by conditions in the largest tributary basin, the

Richelieu. Areas of New York and Vermont have a high level of agricultural employment; the resorts and recreation industry, as well as the textile, paper and wood products industries also are significant employers.

In Quebec, textile and clothing manufacturing, dairy farming and commercial recreation are among the most important economic activities.

Finally, in the St. John and St. Croix River basins the primary industries

(agriculture, forestry, fisheries and mining) have traditionally been the

dominant economic sectors.

With the outflow from the Great Lakes and precipitation averaging

about 1,000 mm per year, water is plentiful throughout the region. Given

such abundance, the region’s transboundary water management

focuses on the environmental, social and economic consequences of

regional water quality and flow regulation. Levels and flows are important and sometimes controversial issues in the Great Lakes and St. Lawrence River.

In the upper St. Lawrence River, both hydroelectricity and navigation require reasonably high and stable water levels. To date, outflow

rates from the Great Lakes have been sufficient to meet downstream

requirements, but any significant reduction in the outflow could upset

the balance. Water quality in the upper St. Lawrence remains relatively

poor. The quality of the mainstream water generally reflects that of the

eastern portion of Lake Ontario, which is its source. Water quality in the

nearshore areas tends to be affected more by local municipal and industrial discharges, particularly in the Massena-Cornwall region. Many of

the beneficial uses in the area have been impaired to some degree by contaminants such as zinc, lead, chromium and a wide variety of hydrocarbons. As a result, fish advisories are in effect along several reaches. PCBs

have been repeatedly observed in bottom sediments, particularly in

the south channel downstream of ongoing PCB sources, as well as in

fish and wildlife tissues. The mercury found in fish and sediments is

believed to have it origins in the low-level discharges of mercury from

Cornwall sources.

With the exception of occasional spring flooding along the Canadian stretch of the Richelieu River, the major management issue along

188 INLAND WATER MANAGEMENT REPORT
the transboundary tributaries of the St. Lawrence are nutrient loadings

and the resulting eutrophication of the two boundary lakes: Lake

Champlain in the Richelieu basin, and Lake Memphremagog in the

St. François basin. However, water quality is generally good in the

lower-order rivers and streams within the vicinity of the border.

The St. John and St. Croix basins continue to support an important

fisheries sector, despite having experienced serious environmental

stresses from pesticide use, chemical wastes and acid deposition. Fortunately, water quality has improved in recent years. Of more immediate

importance from a boundary and transboundary water management

perspective is the issue of water level and streamflow regulation in the

two basins. Three major hydroelectric dams are located along the St.

John and several smaller dams within the St. Croix basin. Of concern

along the St. John are the potential flooding of agricultural land

upstream of the dams and the recurring springtime floods in the lower

St. John Valley. In the St. Croix basin, concerns center on fluctuating

water levels in the upstream section and the effects of this fluctuation on

the local bass fishery and other wildlife species. The IJC has been reviewing its orders on the St. Croix with respect to these and other issues.

Another growing problem is the effect of pollution in the St. Croix estuary on shellfish.

APPENDIX 189
Tijuana River Basin

BASIN CHARACTERISTICS

Geographic Extent/ Relatively small basin of 4,500 km2; 75 percent

Hydrologic Complexity of basin in Mexico. Strong groundwater/

surface water interconnections; series of

reservoirs in upper part of basin.

Water Availability Arid area; flow derived primarily from rainfall

runoff. Streamflows extremely variable.

Roughly 80 percent of water used in basin is

imported from the lower Colorado River basin.

Population Dense urban population in San Diego/Tijuana

and Tecate. US population is about 2.5 million.

Population exceeds one million in Mexican

portion of basin.

Economic Trends San Diego: technology, tourism, military, services. Tijuana and Tecate: manufacturing, trade.

Some localized dependence on agriculture.

BALANCE OF USES

Data on Current/ Use data generally available, though use from

Recent Use basin fluctuates with available flow. Incomplete

data on groundwater use. Estimates only

available on agricultural uses.

Data on Projected Use Aggregate projections available, but primarily

based on population trends.

Other Information Regional planning efforts on both sides of

border are developing more extensive database.

Dominant Uses Municipal use dominates on both sides. One

major industrial user (brewery) in Tecate.

High-technology manufacturing in Tijuana

maquiladoras is also significant water user.

Supply Sources Irrigation supplied primarily by groundwater

in Mexico portion. Surface water applied to

other uses, though availability of in-basin

supply varies greatly. San Diego, Tijuana and

Tecate depend heavily on out-of-basin supplies,

particularly in drier years.

190 INLAND WATER MANAGEMENT REPORT
Future Demand/Shortages Urban growth will increase demand, but

Tijuana basin already fully appropriated.

Reduced agricultural use may free up

some water.

MANAGEMENT ISSUES

Equality Issues Need for increased access to centralized potable

water in Tijuana and Tecate; cost of water for

low-income populations; conflicts between

environmental needs and other uses.

Water Use Efficiency High reliance on inefficient flood irrigation in

Issues Mexican portion of basin continues. Per capita

municipal use much lower in Mexican portion

of basin. Better metering of water use required;

improvements needed in municipal water

distribution system, particularly in Tijuana.

Environmental Needs/ Need to maintain appropriate balance of clean

Issues freshwater flows to Tijuana River estuary;

riparian habitat restoration issues.

Recreational Needs/ Water quality problems affecting beaches

Issues near Tijuana River discharge.

Special Issues Protection of Tijuana River Estuary Reserve

with appropriate balance of freshwater inflows.

Pollution of beaches due to raw or partially

treated sewage flows. Construction of

international wastewater treatment plant

for Tijuana sewage.

The freshwater resources of the Tijuana River basin are shared by

the Mexican municipalities of Tijuana and Tecate and San Diego

County, California. Although relatively small (4,500 km2), the basin is

populated by more than 3.5 million inhabitants, of whom roughly one

million reside on the Mexican side. The basin’s population has grown

rapidly over the past several decades and is expected to increase steadily

well into the 21st century.

APPENDIX 191
Figure 7: Tijuana River Basin

Physically, the basin is characterized by extremely variable

streamflows, with extended periods of drought interrupted by heavy

floods during wet years. Impoundment infrastructures such as the

Rodrigez Dam south of Tijuana and the Morena and Barret Dams in San

Diego County are incapable of stabilizing streamflow over extent periods. In light of such variability, and given the relatively small catchment

area of the basin, the surface water resources of the Tijuana River are

insufficient to meet the freshwater needs of the basin’s growing population. As a result, the basin must import water to meet its overall demand.

192 INLAND WATER MANAGEMENT REPORT
Tijuana and Tecate import roughly 50 Mm3 of water annually from

La Mesa Aresona, an aquifer located in the lower Colorado River. On the

other side of the border, the southern California aqueducts convey

nearly 600 Mm3 of water annually to San Diego County. These annual

imports represent 70 percent of the total water used in the San

Diego/Tijuana-Tecate region.

Table 1: Estimated Water Use in the

Tijuana River Basin, by Source

(in million cubic meters per year)

Sources: Estimated from data by USGS 1993; COSAE 1994; CNA 1995.

* Given the high annual variability of supply within the basin, these estimates should be

considered very rough.

Both Tijuana and Tecate rely almost entirely on groundwater for

their freshwater supply (see Table 1). As for surface water, groundwater

availability is narrowly tied to the dominant weather pattern and is

therefore highly variable over seasonal and annual time frames. Incomplete, and sometimes incompatible, information is available on the state

of water resources and water use in the basin, particularly for groundwater. This lack of data hampers efforts to control groundwater overdraft and impedes basinwide planning.

Municipal and industrial water consumption, already the predominant uses on both sides of the border, continue to increase as the

urban population grows. Conversely, the agricultural sector’s demand

for water, which at present accounts for roughly 25 percent of all freshwater uses, has been declining since the 1960s.

Water quality and water supply problems on both sides of the

basin stem primarily from inadequately controlled urban growth. During certain periods of intense precipitation, the cities of Tijuana and

APPENDIX 193

Tijuana Basin

Surface Aquifer Imported Total

Tijuana-Tecate 0 30 50 80

San Diego 110 10 600 720

Total 110 40 650 800
Tecate have been unable to manage their production of wastewater,

resulting in uncontrolled runoff of domestic and municipal wastewater

through the natural channels crossing the international boundary. This

problem in turn has raised public and environmental health issues on

both sides of the border.

Urban planning and economic development programs have failed

to adequately recognize the importance of the link between land use and

water in the Tijuana basin. The cumulative effects of the lack of integration of these two factors are disastrous during times of extraordinary

rainfall or drought on both sides of the border.

Water management in the Tijuana River basin is undergoing substantial changes, including the implementation of a more thorough

planning process on both sides of the border. Planning has tended to

regionalize water management, involving local agencies and users, and

to conceptualize the basin as a complex single entity. In Mexico, the creation of the State Water Services Commission (Comisión de Servicios de

Agua del Estado—COSAE) in 1992 set the stage for increased participation by local agencies in the formulation of long-term water management programs. The focus of the local agencies, however, remains

supply oriented. State agencies retain a broader approach, stressing the

need for demand management strategies and emphasizing the maintenance of natural flows for environmental uses.

Environmental uses and quality issues have had low priority in the

management of the Tijuana River, at least until recently. The development of restoration initiatives for the estuarine area of the river, the

joint construction of water-related facilities and renewed interest in

transboundary cooperation could change this trend.

194 INLAND WATER MANAGEMENT REPORT
Colorado River Basin

BASIN CHARACTERISTICS

Geographic Extent/ Sixth largest US river; watershed covering

Hydrologic Complexity 632,000 km2; headwaters in Colorado

mountains; flow controlled by 20 dams.

Water Availability Flow depends primarily on snow melt in

headwaters; extreme flow variability; drains

arid region; groundwater important source,

especially in lower basin.

Population Waters serve more than 30 million people;

partial supply for almost 17 million in

southern California; population growing

rapidly in lower-basin service areas.

Economic Trends Manufacturing, high technology, services,

trade and tourism important throughout the

basin. Agricultural economy still strong in

upper basin, southern California, Arizona

and Mexicali Valley.

BALANCE OF USES

Data on Current/ Use data generally available for municipal uses,

Recent Use less accurate data for agricultural uses.

Data on Projected Use Aggregate projections based primarily on

population trends.

Other Information Use measured against entitlements under

various compacts, laws and treaties.

Dominant Uses Dominant uses: irrigation in the upper

and lower basins, followed by growing

municipal use. Primary industrial uses:

thermoelectric power production and mining.

Supply Sources Groundwater is important source for irrigation

in Arizona and Mexicali Valley, and exported

out-of-basin water for municipal use in Tijuana.

Surface water is primary source for municipal

needs and irrigation in southern California.

Future Demand/Shortages Long-term use projections substantially exceed

available supply. Reallocation of irrigation use

to municipal use likely. Potential conflicts with

environmental needs.

APPENDIX 195
MANAGEMENT ISSUES

Equality Issues Subsidization of irrigation use in some portions

of basin. Quality of water delivered to Mexico is

poor. Long history of ecosystem modifications

due to reservoir development.

Water Use Efficiency Low-efficiency irrigation practices for lowIssues value crops (hay, alfalfa) in some portions of

basin. Extremely high per capita municipal use

in Las Vegas, Phoenix and other desert cities.

Environmental Needs/ Alteration of riparian habitat by reservoir

Issues construction; reduced freshwater flows to

Colorado River Delta Estuary and Gulf of

California; maintaining partially restored

Cienega Santa Clara marsh with agricultural

return flows.

Recreational Needs/ Call to operate dams to help protect

Issues endangered fish species. Recreational use of

reservoirs and parts of river is economically

important. Local ecotourism developing

around Cienga Santa Clara marsh.

Special Issues Efforts to control natural and manmade sources

of salinity in order to protect quality of water

delivered to Mexico will require bilateral

negotiations. All American Canal lining poses

prospect of reduced groundwater availability

in Mexicali Valley. Groundwater overdraft

in several areas of lower basin.

Ranking sixth in size among major US rivers, the Colorado River

supplies water to almost 30 million people in seven western US states

and Mexico. Colorado River water irrigates roughly 1.5 million hectares

of farmland in Wyoming, Colorado, Utah, New Mexico, Arizona, California and Mexico. Draining a 632,000 km2 watershed, the 2,300-km long

river system eventually empties into the Sea of Cortez (known north of

the border as the Gulf of California). While carrying less water on an

annual basis than California’s Sacramento River, the Colorado River has

been the “lifeblood” for the western United States and Mexico’s Mexicali

Valley.

196 INLAND WATER MANAGEMENT REPORT
Figure 8: Colorado River Basin

The Colorado River system has been stressed and transformed by

seven decades of development. Now controlled by 20 dams, it ranks

among the world’s most heavily plumbed water systems. Dams that

turn the river on and off like a faucet, and large-scale diversions that

deplete the river’s flow have dramatically modified the river’s water

environment from its predevelopment conditions. Changes in the

river’s sediment balance, water temperature and flow pattern, and the

APPENDIX 197
introduction of exotic plant and fish species have all significantly altered

riverine aquatic ecosystems. Throughout the basin, numerous efforts

are under way to restore and maintain particularly stressed areas.

Historically, the average annual natural flow of the Colorado River

has been, and still is, a subject of great debate, mainly because of the

extreme flow variability both on an annual basis and over extended periods. Another reason is that data have been recorded over only a relatively short period. Based on historic flows over the last hundred years,

the Bureau of Reclamation estimates the Colorado River’s average

annual natural flow at 18,500 Mm3 (15 MAF), as measured at Lee’s Ferry.

The Colorado’s high variability is, to a large degree, now offset by the

water storage infrastructure along the river and its tributaries. The total

capacity of the 14 major storage facilities of the upper basin and lower

Colorado mainstem exceeds 75,200 Mm3 (61 MAF)–roughly four times

the river’s annual average flow.

The most fundamental problem of the entire Colorado River basin

is that the long-term planned use of the river’s water exceeds the

available supply. Because total legal entitlements to water are greater

that the river’s average annual flow, the river has been deemed

“overapportioned.” This predicament can be traced back to the first

negotiations affecting the river. Based on river flow measurements for

the 15 years leading up to the 1922 Colorado River Compact, compact

signatories apportioned 18,500 Mm3 (15 MAF) of a river they incorrectly

believed to have an average annual flow of slightly more than 22,200

Mm3 (18 MAF). Unfortunately, that projected 3,700 Mm3 surplus disappeared as scientists later learned that average annual flows were closer

to 18,500 Mm3, or possibly lower. Even though the river’s flows were

considerably overestimated, subsequent laws and decrees have been

based on the original apportionments agreed to in the 1922 Compact.

Fortunately, human demands have not yet reached legal entitlements,

and overapportionment has not yet posed a serious problem. As shown

in Figure 9, however, practically all available surface water from the Colorado River basin is being used.

198 INLAND WATER MANAGEMENT REPORT
Figure 9: Surface Water Flows and Uses

by State in the Colorado River Basin

(in million cubic meters per year)

Notes: Upper basin figures are for depletion; lower basin figures are for total water use.

Nevada uses include groundwater, local surface water and Colorado River water. Arizona

uses correspond to total groundwater and surface water use.

APPENDIX 199
One major challenge facing water managers of the Colorado basin

is long-term groundwater overdraft. In some regions of the lower basin,

groundwater overdraft has led to irreversible losses of storage capacity.

Groundwater overdraft currently occurs on an annual basis in all three

of the lower-basin states. Because of a paucity of data on groundwater

use and the geohydrology of the Mexicali Valley region, it is difficult

to determine with certainty whether, or to what degree, water is overdrafted. Groundwater in the upper Colorado River basin, unlike the

lower basin, represents a small fraction (roughly two percent) of total

water use and is therefore less likely to be overdrafted.

Salinity is the major water quality issue facing the river basin. Like

many rivers in the western United States, the Colorado is naturally salty.

Half of the average annual salt load of nine million tons carried past

Hoover Dam is attributed to natural sources. Human-caused increases

in salinity concentration account for the remainder and include saline

irrigation return flows, reservoir evaporation, out-of-basin transfers and

municipal/industrial uses.

Because none of the basin states except California, Baja California

and Sonora have ever used their full basic entitlements, current average

annual consumptive use of water in the basin plus deliveries to Mexico

still lies within the limits of the river system. However, in 1990, for the

first time, the lower portion of the basin used its full legal entitlement.

Reaching this threshold has served as an impetus for rethinking management strategies for the river. Water managers are beginning to focus

on conservation, improved management and voluntary transfers as

strategies for redistributing water toward its highest-valued use.

Although it is widely agreed that there is enough water in the “system” to meet the needs of the basin for the next 50 years, the onerous task

at hand is developing the mechanisms that will move water to where it is

needed most, while continuing to satisfy the needs of its current users.

Compounding the problem is the additional need to reallocate water to

aquatic ecosystems in the Colorado River basin that are in serious

decline due either to an overall lack of water or to untimely use of the

resource. This transition period in the river’s history is an ideal opportunity for water planners to make a commitment to sustainable water management.

200 INLAND WATER MANAGEMENT REPORT
San Pedro and Santa Cruz River Basins

BASIN CHARACTERISTICS

Geographic Extent/ San Pedro headwaters in Sonora cover

Hydrologic Complexity 11,620-km2 basin; Santa Cruz headwaters

in Arizona cross into Mexico and back into

Arizona–about 14,000 km2.

Water Availability Arid to semiarid region. Surface flows generally

intermittent and extremely variable. Groundwater in alluvium and deeper aquifers is

main source of supply.

Population San Pedro basin relatively sparsely populated;

slightly less than one million in Santa Cruz

basin, concentrated in Tucson and Nogales,

Sonora.

Economic Trends Mainstays of economy: agriculture, tourism,

trade and mining. Assembly plants

concentrated in Nogales, Sonora.

BALANCE OF USES

Data on Current/ Limited data on uses in Mexican portion of

Recent Use basins; more extensive data for active

management areas (AMAs) in Arizona

portion of basins.

Data on Projected Use Detailed projections available for Arizona

AMAs; less data available for Mexican portions

of basins, but municipal use projections

available for Nogales, Sonora.

Other Information Data broken out by AMA for Arizona portion

of basins, including projected sources of supply.

Dominant Uses Irrigation, followed by municipal and mining.

Municipal use dominates in Tucson AMA.

Supply Sources Groundwater is the primary source of supply;

Central Arizona Project water (from Colorado

River) and recycled effluent (primarily for turf

irrigation) supplement groundwater use.

Future Demand/Shortages Ground water overdraft could be continuing

problem if AMA management goals not met.

APPENDIX 201
Insufficient data to draw conclusions about

sufficiency of binational groundwater

resources. Reallocation of irrigation use

to municipal use likely.

MANAGEMENT ISSUES

Equality Issues Access to affordable, centralized potable water

in Nogales, Sonora, and low-income areas of

Tucson and other cities in basins.

Water Use Efficiency Issues Conservation programs being implemented in

municipal sector (pricing, effluent reuse); less

progress in improving irrigation efficiencies.

Environmental Needs/ Need to protect flows for significant riparian

Issues habitat in both basins; creation of permanent

flows and associated riparian habitat from

discharge of Nogales International

Wastewater Treatment Plant.

Recreational Needs/ Riparian areas generate tourism revenue

Issues in Arizona.

Special Issues Problems with planned municipal use of

Colorado River water from Central Arizona

Project being rejected by Tucson voters; lack of

understanding of groundwater/surface water

interconnections, especially in immediate

border area; “consumption” of water by phreatophytes; increasing use of tribal water rights

for irrigation in Arizona.

The San Pedro and Santa Cruz Rivers and most of their tributaries

are either ephemeral, flowing only during periods of rainfall or snow

melt, or intermittent, with certain reaches having water most of the year

while other reaches remain mostly dry. Both rivers have stretches of

perennial flow, a situation that can result from one of three situations: (1)

where water losses are less than the supply; (2) where the underlying

bedrock forces the groundwater to the surface; or (3) where effluent is

discharged from municipal wastewater treatment plants. In the case of

the latter, such sources of continuous streamflow are largely or solely

responsible for the existence of the few remaining and relatively lush

riparian stretches on the Santa Cruz River.

202 INLAND WATER MANAGEMENT REPORT
Figure 10: Santa Cruz and San Pedro River Basins

APPENDIX 203
Despite the arid climate, the region’s ecology is remarkably

diverse. Riparian zones along the stream channels give way to desert

scrub, and at higher altitudes semidesert grasslands along mountain

flanks yield to subalpine and alpine woodlands. Much of the riparian

vegetation has been cleared and converted into what has become the

most productive agricultural lands in the basins. However, along portions of the San Pedro River, significant areas of native vegetation persist, providing habitat for many different kinds of animal species. These

zones also serve as a pathway for millions of birds migrating from their

winter habitat in Mexico and Central America to their breeding habitat

in the northern United States and Canada.

Although some localized quality problems have appeared, such as

episodes of heavy metals leaching from the Cananea Mine in Sonora in

the late 1970s and mid-1980s, the San Pedro River basin has no major

regional threats. However, wastewater from livestock effluent continues to pose a threat in both basins, particularly the Santa Cruz.

Groundwater is the primary source—and in the Santa Cruz River

basin the only reliable source—of water in the basins. In areas of both

basins, overdrafting of the regional aquifers is causing the water table

to fall significantly. In the Santa Cruz River basin, overpumping of

groundwater is believed to have resulted in the elimination of several

reaches of perennial flow in the streambed. In the San Pedro, the general

consensus among scientific experts is that continued groundwater

extractions at the current or an increased rate will significantly affect the

base flow of the stream.

The Santa Cruz basin’s population of about one million inhabitants, of which 900,000 live in the urban areas of Tucson (Arizona) and

Nogales (Sonora), is growing rapidly. Although irrigation remains the

largest consumer of freshwater, accounting for 70 percent of all freshwater withdrawals in 1990, the agricultural sector is declining, giving way

to municipal development.

The basic hydrology and water balance of both river basins are not

fully understood. Demand forecasts, based on various scenarios of consumption patterns, show that without conscientious management of the

basins’ water resources, serious consequences (shortages) could befall

certain locations, certain groups of individuals, or certain sectors. More

information is needed, for example, on the contribution of snowpack in

the mountains that enclose the basins to recharge of groundwater in the

regional aquifers and to streamflows. More data also are needed to

better understand the contributions of surface and groundwater flows

204 INLAND WATER MANAGEMENT REPORT
from Mexico into the US portions of the watersheds. A better understanding of evapotranspiration rates, especially from riparian vegetation, is required as well.

In addition, more precise estimates of environmental water needs

should be developed to allow better planning for instream uses and for

management of highly valued ecosystems during dry periods. Better

information might also help resolve some politicized debates about the

relative importance of human and ecosystem effects on river flows.

The legal status of groundwater is a major issue in the sustainable

management of the basins on the US side of the border. The failure of the

law to recognize groundwater/surface water interconnections and the

less regulated state of groundwater withdrawals have left gaps in the

countries’ ability to manage water resources. Recent Arizona court decisions indicate some increased recognition of the scientific realities, however.

Institutional structures in Mexico and the United States lack parity.

For example, the state of Sonora does not place much water management authority at the local level. In effect, then, the counterpart of the

Arizona Department of Water Resources (ADWR) must often be the federal National Water Commission (Comisión Nacional del Agua—CNA).

Both CNA and ADWR want to manage their water resources in a sustainable fashion, but CNA is a large agency with many other responsibilities, and the Santa Cruz and San Pedro River basins are small compared

with other basins for which CNA has responsibility. Finally, despite the

various transboundary agreements and institutions that exist between

the United States and Mexico, there has been no formal allocation of

either the surface waters or the groundwater of the transboundary Santa

Cruz and San Pedro basins. Thus for these basins, there is no existing

framework within which potential future allocation disputes can be

easily resolved.

APPENDIX 205
Río Bravo Basin

BASIN CHARACTERISTICS

Geographic Extent/ Headwaters in San Juan Mountains of

Hydrologic Complexity Colorado; total basin covers about 920,000 km2.

Seventy-five percent of flow below El Paso is

from Río Conchos, with headwaters in Chihuahua. Two major reservoirs on main-stream;

several reservoirs on Mexican tributaries.

Water Availability Highly variable flows; only intermittent flow

on most tributaries, except for Río Conchos.

Groundwater important in El Paso/Juárez

area and Texas/ Coahuila border region.

Population One million in Texas portion and eight million

in Mexico. Rapidly growing population in

urban areas; stable or declining population

in rural areas.

Economic Trends Increasing dependence on manufacturing,

trade, services and tourism; decreasing

dependence on agriculture, though still

localized dependence in some areas.

BALANCE OF USES

Data on Current/ Detailed data on uses in Texas, though

Recent Use agricultural use data are generally only

estimates. Scattered aggregate data on uses

in Mexico.

Data on Projected Use Projections available for Texas, though some

potential problems with assumptions.

Projections generally not available for Mexico.

Other Information Water rights registry being implemented in

Mexican portion. Texas administration of water

rights has been underfunded. Watermaster for

lower portion of Texas basin and IBWC also

are sources of data.

Dominant Uses Irrigation (up to 90 percent of use in lower Río

Bravo Valley of Texas), followed by municipal

uses. Few significant industrial users, except

thermoelectric power production (coal) in

Coahuila portion of river.

206 INLAND WATER MANAGEMENT REPORT
Supply Sources Primarily surface water from mainstream and

Río Conchos; groundwater is sole source for

Juárez and significant percentage of El Paso

use. Groundwater also an important source

of supply in Texas/Coahuila border region.

Future Demand/Shortages El Paso/Juárez, unless El Paso able to shift to

year-round surface water supply; possible

shortages in Coahuila portion of border.

Significant reallocation from irrigation

to municipal use likely.

MANAGEMENT ISSUES

Equality Issues River managed almost solely for irrigation use

upstream of El Paso/Juárez; heavily subsidized

water for irrigation in both Texas and Mexico

portions of basin; access to affordable, centralized potable water for low-income residents

in urban areas of basin. Low per capita use

in Mexico.

Water Use Efficiency Issues Increasing attention to municipal water

conservation in some cities; little progress

in agricultural conservation, except for

improvements highlighted by recent drought.

Environmental Needs/ Loss of springs, creek flows in northern Mexico

Issues because of overexploitation of water resources;

increasing salinity of lower Río Bravo because

of reduced freshwater flows and irrigation

return flows. Riparian habitat maintenance and

restoration are issues in some parts of basin.

Recreational Needs/ Need to maintain adequate flows for riverIssues based recreation in Big Bend National Park

and Wild and Scenic River. Wildlife viewing

in riparian habitat in Lower Río Bravo Valley

of Texas and sport fishing on Mexican

reservoirs generate significant tourism revenue.

Special Issues Need for better understanding of groundwater/surface water interconnections,

especially in middle border region; Mexico;

management of reservoirs in New Mexico to

better accommodate downstream needs. The

potential for significantly increased demand

in Río Conchos and other Mexican tributaries

does not appear to be considered in most

projections.

APPENDIX 207
The Río Grande/Río Bravo basin, which throughout this report is

referred to as the Río Bravo basin, extends 3,140 km from its headwaters

in the San Juan Mountains of Colorado to the Gulf of Mexico. The basin

covers a total land area of 920,874 km2 and is home to about nine million

people, almost eight million of whom live in the Mexican portion of the

basin.

Figure 11: Río Bravo River System

The Texas/Mexico portion of the basin flows through relatively

arid regions. Major base flow is provided by the headwaters located in

southern Colorado and by the Río Conchos in Chihuahua. Several large

208 INLAND WATER MANAGEMENT REPORT
manmade reservoirs provide water storage and flood control. Figure 12

shows the major surface water inflows to and withdrawals from the Río

Bravo from the Texas-New Mexico state line to the Gulf of Mexico.

Figure 12: Río Grande/Río Bravo Diversions

and Tributary Inflows

APPENDIX 209

(Mm3 / Year)

Flow at El Paso

489.5

Acequia Madre 62.3  342.2 American Canal

Rio Conchos 1,042  15.6 Alamito Creek

 50.1 Terlingua Creek

Carmina Springs 44.7  262.1 Pecos River

(other springs)  329.4 Devil’s River

Amistad Reservoir

Various Creeks near 84.8  215.4 Various Creeks

ciudad Acuna near Del Rio

Rio San Diego 173.5 1,136.5 Maverick Canal

Rio San Rodrigo 141.6  990.7 Maverick Canal

return flow

Rio Escondido 51.1 

Rio Salado 376.7 

Falcon Reservoir

Rio Alamo 141.7 1,231.6 Various Diversions

Falcon Dam to

Anzalduas Canal 1,249  Brownsville

Rio San Juan 391.9 

Irrigation District 57.3 

return flows

Flow Below Browns/Matamr

MEXICO UNITED STATES

Inflows 2,505.5 Inflows 1,886.7

Diversions 1,331.3 Diversions 2,710.3

Net +1,194.2 Net -843.6

Source: International Boundary and Water Commision, “FLow of the Rio Grande and

Related Data,” Water Bulletin No. 63, 1993.

956.7
The amount of water present in the river basin at any given time is

dependent on both surface water runoff and groundwater inputs via

seeps, springs and infiltration. Little is known about the nature of surface/groundwater interactions in the Río Bravo basin, particularly in the

middle reach of the river. The binational extent of the Edwards-Trinity

Plateau aquifer and the contribution of springs from this aquifer to surface water flows have been little analyzed.

Historically, irrigated agriculture has played an extremely important economic role in many parts of the Texas border. Beginning in the

1940s, the creation of several reservoirs (Elephant Butte, Caballo,

Amistad and Falcon) encouraged the expansion of irrigated agriculture

by providing a reliable and, for the users, a relatively inexpensive supply

of water from the Río Bravo. By the late 1960s and the 1970s, however,

the character of the Texas/Mexico border region had begun to change

significantly, due in large part to rapid population growth. Efforts by

local governments to recruit industry to the area, coupled with the

increasing size of local municipalities, have reduced the regional economy’s dependence on agriculture. By the 1990s, 71 percent of the jobs in

the lower Río Bravo Valley were in wholesale and retail trade, government and services. Unfortunately, the water supply infrastructure networks, originally set up to meet the needs of irrigated agriculture, were,

and in several cases remain, ill-suited to efficiently supply and treat

water for municipal purposes. As a result, many border municipalities

need major expansions in their water supply, sewage and treatment systems.

Similar trends have characterized changes in the Mexican portion

of the Río Bravo basin. The development of the Amistad and Falcon reservoirs as well as others on the Mexican tributaries facilitated the expansion of irrigated agriculture along the northeastern Mexico border. As in

the Texas portion of the basin, federal funds paid for development of

these reservoirs and federal subsidies helped support many agricultural

operations. The bracero and maquiladora programs fueled population

growth and industrialization in the border cities along the Río Bravo,

thereby placing severe strains on these areas. With the exception of

Nuevo Laredo, all of the major Mexican municipalities along the Río

Bravo lack modern, functioning sewage treatment systems. In 1992,

IBWC estimated it would need about US $ 1.4 billion to bring the collection and treatment systems in these Mexican border cities up to standard. Unfortunately, the ability of residents to pay for the necessary

improvements in water (and sewer) services in northeastern Mexico is

even more limited than at the Texas border. Affordability of water—in

210 INLAND WATER MANAGEMENT REPORT
addition to access to water—remains an important economic, social and,

ultimately, political issue in the basin’s Mexican municipalities.

Just as water allocation and management issues are likely to

assume greater importance on each side of the Texas-Mexico border,

transboundary water allocation and management issues will also take

center stage. The 1944 treaty between the United States and Mexico

makes provision for allocation of the Río Bravo and its tributaries, but no

similar treaty exists for groundwater, which is an increasingly important source of freshwater along both sides of the border.

As the demand for water increases, the adequacy of instream flows

to sustain natural aquatic assemblages will remain an important issue in

several parts of the basin. Scientists have documented significant

changes in the aquatic assemblages in the lower Río Bravo as a consequence of reduced freshwater flows and the increasing salinization in

this lower part of the river. Mexican scientists also have documented

extensive losses of rare and endangered aquatic species in northeastern

Mexico due to overexploitation of groundwater and surface water, causing springs, seeps and entire creek beds to dry up. In the lower Río

Bravo, maintaining adequate instream flows is important to several riverside wildlife refuges–including the Santa Ana National Wildlife Refuge, the National Audubon’s Sabal Palm Grove and about 35 miles of

river frontage on other riverine habitat tracts that are part of the Lower

Río Grande Valley Wildlife Corridor (a public/private partnership

designed to conserve some of the last remaining parcels of native habitat

in the valley). Much of this habitat is in the river’s flood plain and traditionally was periodically inundated by floodwaters. Like river rafting

and reservoir-based recreation in other parts of the basin, these wildlife

refuges also provide significant economic benefit to the local economy.

Also essential to the region’s ecology and social well-being is the

maintenance of surface water quality. The principal water quality concerns in the Río Bravo basin include high fecal coliform concentrations in

certain areas of the mainstem, particularly downstream from major

municipal discharges from Mexican border cities; elevated levels of total

dissolved solids and chlorides (salinity concerns) throughout the basin;

and elevated levels of nutrients, particularly in the upper Río Bravo.

APPENDIX 211