U.S.-Mexico Colorado River deal is close

With a Senate Hearing tomorrow and a meeting of the Central Arizona Water Conservation District Thursday, we’re starting to see the public rollout of a Colorado River management agreement between the United States and Mexico that now looks like it’s on track to be signed within the next few months.

The biggest clue that this could really happen is that they’ve changed the name from “Minute 32x” to “Minute 323”. The placeholder “x” meant the agreement would be signed sometime, changing it to a “3” suggest people are confident enough that it’s really going to happen soon that they’ve assigned it a number and put it in the queue.

While the full agreement has not been made public, the negotiating team has put together a detailed set of talking points to be taken to the various water agency boards and state agencies on the U.S. side. Here’s the copy included in the CAWCD board packet for Thursday’s meeting:

 

Quibbling aside about whether or not we’re in fact in an era of “historic collaboration on the Colorado River” (really, Gary, “fake news”?), this is evidence that we are, in fact, in an era of historic collaboration on the Colorado River.

Embedded in the deal are two important pieces.

The first is Mexico’s continued participation in the current binational water conservation scheme, in which water users in both the United States and Mexico agree to curtail their water use as Lake Mead drops. This is the follow-on to Minute 319, the historic 2012-U.S.-Mexico agreement that broke down the key barriers to international management on the river.

The second piece is what’s called in the new minute the “Binational Water Scarcity Contingency Plan”, which is the international flavor of what’s known by the norteños as the “Drought Contingency Plan”. This is the agreement that ratchets up the conservation, making deeper cuts to water use sooner. One of the lawyers in the audience will probably lecture me if I call this piece “contingent” or “trigger” or whatever, but the fact is that this language lays out the details of Mexico’s participation in the new DCP scheme, but it doesn’t take effect until folks on the U.S. side approve the DCP.

Its inclusion here, and the fact that it’s now being made public, is crucial evidence that folks in the United States have settled on the final terms of the deal and we’re not just in the “working out the formalities” part of the process. There’s always been a chicken/egg problem about which would come first, the DCP or the U.S.-Mexico minute, because each depends on the other. The solution has been a contingent minute (don’t scold, lawyer friends) through which Mexican participation is contingent on the separate deal within the U.S. being signed. The only way folks are willing now to go forward with the U.S.-Mexico piece is because they’re confident that the U.S. piece will follow.

These “minutes” (they function kinda like amendments to the U.S.-Mexico treaty, but don’t call them that the lawyers will scold you) part part of a trend away from conflict and toward collaboration as the Colorado River crosses its international border. They add a crucial piece – a joining of water management institutions across the international border in an effort to manage the Colorado River as one river.

Together, these steps demonstrate the extraordinary pivot on the Colorado River from Mark Reisner’s “most litigated river in the entire world” to a system in which the parties stay out of the courts and international tribunals and negotiate mutually beneficial agreements to deal with the Colorado’s problem of overallocation.

Lots more in the agreement, including more provisions for environmental flows in the Colorado River Delta and cross-border water conservation collaborations.

This is a big deal.

10 Comments

  1. John, I had to chuckle when I saw that you ‘tongue-in-cheek’ referred to a Minute as an “amendment” to the Treaty. We have all gone through that period of struggling to figure out exactly what a Minute is. I think I’ve always understood that a Minute is not an amendment to the Treaty, as that’d be a big deal. I guess I always kind of viewed it like a “minute entry” in an ongoing legal proceeding (e.g., McCarran-style general stream adjudication process, etc.). I did want to share with you that the Secretary of the U.S. Section of the International Boundary and Water Commission recently provided to me what is perhaps the best definition of a Minute. She indicated, and I am paraphrasing, that a “Minute describes operational aspects associated with implementation of the 1944 Water Treaty.” That makes pretty good sense to me.

    Good article, John, and keep up the good work. See you soon.

    Chris

  2. excellent to read something positive about
    our two countries cooperating on something
    so important.

  3. Pingback: Institutions and trans-boundary water - jfleck at inkstain

  4. Nice and insightful.

    If this is Minute 323, will it come to be referred to as 23 Minutes past Five?

  5. Pingback: "springing condition subsequent" - jfleck at inkstain

  6. Re “Minutes” to the 1944 U.S./Mexico Water Treaty–

    Article 25

    “…Decisions of the Commission shall be recorded in the form of Minutes done in duplicate in the English and Spanish languages, signed by each Commissioner and attested by the Secretaries, and copies thereof forwarded to each Government within three days after being signed. Except where the specific approval of the two Governments is required by any provision of of this Treaty, if one of the Governments fails to communicate to the Commission its approval or disapproval of a decision of the Commission within thirty days reckoned from the date of the Minute in which it shall have been pronounced, the Minute in question and the decisions which it contains shall be considered to be approved by that Government. The Commissioners, within the limits of their respective jurisdictions, shall execute the decisions of the Commission that are approved by both Governments…”

    Well, there it is, the definition of a Minute, and it has been there all along lurking quietly near the very end of the 1944 Water Treaty.

  7. Eric –

    I hadn’t looked at them, this is great! Minute 321 designates a new decal to be used on International Boundary and Water Commission boats on border waterways so it’s easy to identify from a distance.

    320 and 322 both sort out Tijuana water issues – delivery of Colorado River water to Tijuana, and water quality on the Tijuana River (the treaty’s forgotten river).

    https://www.ibwc.gov/Treaties_Minutes/Minutes.html

Leave a Reply

Your email address will not be published. Required fields are marked *