The United States and Mexico are very close to entering a formal decision that will continue the two nations’ cooperative efforts to manage water resources under the “United States-Mexico Treaty on Utilization of Water of the Colorado and Tijuana Rivers and of the Rio Grande” (1944 Treaty).  The 1944 Treaty renamed and updated the International Boundary and Water Commission (IBWC or Commission), which is a joint Mexican and United States’ diplomatic commission, charged with applying the 1944 Treaty, exercise of rights and obligations under the 1944 Treaty for both countries, and the settlement of any disputes regarding water from the Colorado and Tijuana Rivers and the Rio Grande, which forms the border between Mexico and the United States.  The Commission uses “minutes” to describe operational aspects associated with the 1944 Treaty’s implementation and to record the Commission’s decisions.  The proposed agreement is known as Minute 323, which has been in development since 2015.  It is the successor to Minute 319, which will expire in December 2017.  The official language of Minute 323 has not been released yet, but federal officials released a summary of its provisions on July 21, 2017.  Minute 323, updates and agrees to new provisions that govern water from the Colorado and Tijuana Rivers and the Rio Grande, extends a number of the provisions of Minute 319, and adds a number of conservation and planning measures that are intended to improve cooperation and management of the three rivers between both countries.

Minute 323 maintains several key terms of Minute 319, and builds on prior successful concepts.  Importantly, Minute 323 maintains the shortage and surplus sharing of Colorado River water that was previously established by Minute 319.  For example, when Lake Mead has surplus water (in increments above 1,145 feet of elevation in Lake Mead), Mexico can receive an annual increase in releases according to a schedule included in the agreement.  Minute 323 adds a new provision for the Commission to meet and consult with respective stakeholders regarding the effects of any increased deliveries prior to scheduling the delivery of increased flows.  Minute 323 also maintains provisions for habitat development and protection.

Many new provisions in Minute 323 are aimed at improving planning and conservation of the shared water resources.  For example, Minute 323 creates a Binational Hydrology Work Group (BHWG) that will perform technical studies and analysis to enable both countries to better prepare for the future beyond 2026.  The BHWG will analyze the likelihood of reaching low water levels in Lake Mead and how to reduce the risk of reaching such levels.  Minute 323 also establishes projects that will remove sediment from conveyance infrastructure to increase delivery capacity.  Additionally, the United States agreed to provide funding for the modernization of operational technologies to provide real-time data on flow and salinity.  These improvements will allow the two countries to optimize the use of water resources and implement more effective conservation measures.

One of the more ambitious, yet attainable, programs is the establishment of the Binational Water Scarcity Contingency Plan (BWSCP) to address shortages in the Colorado River system.  The BWSCP expresses the United States and Mexico’s shared vision on the need for continued actions to reduce the risk of reaching critically low water levels in Lake Mead.  Under the BWSCP, if the water level of Lake Mead decreases below 1,075 feet in elevation, Mexico will be called upon to further conserve water it uses from the Colorado River.  However, BWSCP is contingent on California, Arizona, and Nevada agreeing to a similar forbearance agreement currently called the Lower Basin Drought Contingency Plan.  The Lower Basin Drought Contingency Plan (LBDCP) would require that the three states conserve and forgo larger amounts of water deliveries than agreed upon between the United States and the seven basin states in the Colorado River’s 2007 Interim Guidelines that govern conservation in shortage periods.  Although Minute 323 and the LBDCP establish water conservation in addition to amounts previously agreed upon, both attempt to establish a system for preventing Lake Mead from reaching critically low water levels and creating uncertain delivery scenarios.

In order to protect and enhance the Colorado River ecosystem, the IBWC’s Environmental Work Group recommended dedicating 45,000 acre-feet to in-stream flows, and providing $40 million over the term of the agreement to increase the acres of restored habitat from 1,076 to 4,300 acres.  The United States has agreed to contribute $31.5 million to Mexico over the course of the agreement that will be used for conservation projects to generate about 200,000 acre-feet of water to be used for environmental obligations, in-stream uses, and use elsewhere in the United States.  The conservation projects to be funded by the United States include canal lining, on-farm conservation, fallowing, regulating reservoirs, and modernization of irrigation districts.  Funding from non-governmental organizations is also referenced by the Minute’s summary.

Finally, Minute 323 maintains the Binational Flow Variability Work Group, and directs it to address joint actions to eliminate or reduce variability in flow.  One focus will be to evaluate potential new water source projects including additional storage in Mexico, which could reduce the variability in the daily flow rate.  Any additional new source projects would be contingent on a separate agreement.  Aside from new storage, additional sources being considered are a desalinization plant on the Gulf of California, and reuse of effluent from the Mexicali Valley wastewater treatment plant.  Although Minute 323 appears to currently have binational support, the relationship between the United States and Mexico is unpredictable, especially with regard to binational agreements.  So it remains to be seen whether Minute 323 will hit any unforeseen snags on the lead up to its signing.  If Minute 323 is signed this year, it will remain in effect until 2026.

For more information on Minute 323, please contact Kristian Corby at kcorby@somachlaw.com.

Somach Simmons & Dunn provides the information in its Environmental Law & Policy Alerts and on its website for informational purposes only.  This general information is not a substitute for legal advice, and users should consult with legal counsel for specific advice.  In addition, using this information or sending electronic mail to Somach Simmons & Dunn or its attorneys does not create an attorney-client relationship with Somach Simmons & Dunn.