Holy Moses: guiding the Rio Grande out of the desert.

Author:Burgin, Mark D.
 
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  1. INTRODUCTION II. BACKGROUND OF THE INTERSTATE COMPACT CONFLICT A. Legal Backdrop B. History of the Rio Grande Compact III. BACKGROUND OF THE INTERNATIONAL TREATY CONFLICT A. Legal Backdrop B. History of the 1944 Treaty between the United States and Mexico IV. ANALYSIS A. Interstate Compact Strategy B. International Treaty Strategy V. CONCLUSION I. INTRODUCTION

    The Rio Grande is a major North American river that flows south and west from its headwaters in the Rocky Mountains for nearly 1,900 miles, ultimately draining into the Gulf of Mexico after its final 1,250 miles serve as the eastern portion of the international border between the United States and Mexico. (1) Its watershed covers 335,000 square miles, serving as a prime water source that has facilitated westward expansion and fostered massive settlement along its banks. (2)

    The flow of the Rio Grande itself is somewhat divided into an upper and a lower basin. (3) The upper basin begins at the river's headwaters in the Colorado Rockies and continues south through New Mexico and ultimately downstream of El Paso, Texas. (4) However, around Fort Quitman, Texas, located just south of El Paso, the river's flows are no longer notably attributable to its origin or even to return flows from the upper basin. (5) Rather, downstream of Fort Quitman, the Rio Grande's flows are supplied from tributary streams rising mainly in Mexico but also in the United States, which all ultimately drain into the river's main channel. (6)

    Unfortunately, due in large part to the river's importance in the region, allocation of its water has proven to be a source of repeated conflicts, both upstream of the international border, where the river's upper basin crosses state boundaries, and also in the lower basin, between the United States and Mexico. (7) Any and all efforts to impound and divert flows necessarily implicate the interests of other users in the basin, inevitably leading to destructive competition and generating mistrust over usage of the common resource. (8)

    Recently, Texas and New Mexico have reignited their contentious disagreement, this time over New Mexico's authority to increase state-permitted surface diversions and groundwater pumping in the upper Rio Grande basin just north of their shared border. (9) Domestic apportionment of the river's water rights in its upper basin is governed by the Rio Grande Compact ("Compact"), an interstate agreement between Colorado, New Mexico, and Texas that was ratified by the U.S. Senate in 1939 and limits each party's usage of the river's flows. (10) The Compact requires that the state of Colorado deliver a certain minimum amount of water at the New Mexico state line and that the state of New Mexico deliver a certain minimum amount of water to the Rio Grande Project at the Elephant Butte Reservoir, located in southern New Mexico. (11)

    The Rio Grande Project ("Project"), which administers the upper river basin downstream of Elephant Butte, is a U.S. Bureau of Reclamation water supply project that designed and funded the Elephant Butte Dam. (12) Now it apportions water usage from the resulting reservoir between downstream irrigation districts in southern New Mexico and West Texas, based upon its calculations of irrigable acreage within each district. (13) The Bureau's Rio Grande Project apportionment predates and was, therefore, ultimately incorporated into the states' Rio Grande Compact. (14) Currently, the state government of New Mexico, in an effort to relieve drought-stricken farmers below Elephant Butte, is permitting an increasing amount of surface and groundwater diversions by its citizens downstream of the Elephant Butte Dam and Reservoir, a practice which state officials in Texas argue violates the spirit of the apportionment agreement originally reached by the Bureau of Reclamation and then reaffirmed by the Rio Grande Compact. (15)

    Simultaneously, downstream in the lower Rio Grande basin, the United States and Mexico have begun a similar quarrel, disagreeing over Mexico's compliance with delivery of minimum flows of Mexican tributaries into the main channel of the river. (16) Despite its exclusive impact on the State of Texas, the downstream apportionment of the river is an international affair, governed by the 1944 Treaty between the United States and Mexico, entitled Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande ("Treaty"), in which both countries agreed to mutually restrict sovereignty over tributaries draining into the lower Rio Grande basin. (17) More specifically, under the Treaty, the United States is entitled to a minimum amount of flows from the Rio Grande tributaries that rise in Mexico, just as Mexico is entitled to a minimum amount of flows from the Rio Grande tributaries that rise in the United States. (18) The agreement was reached to preserve the two nations' ongoing uses of the water at the time the Treaty was made. (19)

    The current international dispute focuses on a provision of the Treaty that requires Mexico to supply the United States with one third of the inflows from six specific Mexican tributaries to ensure an adequate irrigation supply for the agricultural industry in southern Texas. (20) In the guarantee clause of this provision, the Treaty explains that regardless of how much water actually makes it into the Rio Grande's main channel from those six named Mexican tributaries, the United States remains entitled to a yearly average of at least 350,000 acre-feet of water, though any water debt accrued during a five year cycle of extraordinary drought may carry over and be repaid during the subsequent five year cycle. (21) Mexico has repeatedly failed to deliver its minimum annual requirement, particularly in four of the five years in the 2010-2015 five year cycle. (22) However, its government maintains the position that, rather than owing tributary flows on an annual basis, the Treaty only requires that it deliver a single minimum amount at the end of every five year cycle. (23) Therefore, according to the Mexican interpretation of the Treaty, it is only held accountable for its water debt once every five years. (24)

    Taking the downstream complainants' positions in both disputes, both New Mexico and Mexico are, in effect, executing efficient breaches of the interstate Compact and the international Treaty, respectively. (25) It is a rational economic decision for each of them to breach and accept the consequences of doing so, rather than meet their agreed-to obligations. (26) To prevent an efficient breach, either the negative consequences of breaching or the benefits of compliance must be increased, in order to incentivize adherence to an agreement's terms. (27)

    The collective significance of these conflicts stems from the fact that drought conditions and explosive population growth are already putting unprecedented demands on the regional water supply. (28) As a downstream riparian in both Rio Grande basins, Texas remains uncomfortably dependent on the restricted sovereignty of its upstream neighbors for the preservation of flows from streams rising outside its state boundaries. (29) Current conditions have severely stressed the two existing agreements governing one of the state's most important rivers, to the point that both the Compact and the Treaty have been left behind by reality. But that does not mean agreement is now unreachable.

    This Comment proceeds in three parts. Sections II and III interpret the meanings of the original agreements by establishing the contexts in which they were made. Then, Section IV, starting with the interstate Compact and then proceeding to the international Treaty, analyzes the modern conflicts, taking heed of changes in circumstances since the contract, even though that party will have to pay damages."). If the net value a party gains by breaching its agreement and accepting the negative consequences still exceeds the value it gains by complying with the agreement and avoiding negative consequences, then the party will have an economic incentive to breach the agreement. Id. agreements were reached. Section IV offers suggestions to the present-day adversaries as well as to the entities ultimately charged with mediating the disputes, so that they might all resolve their disagreements in the same spirit as their predecessors, who managed to set aside their differences for the greater good.

  2. BACKGROUND OF THE INTERSTATE COMPACT CONFLICT

    1. Legal Backdrop

      1. Riparian Rights & Prior Appropriation Doctrines

        Two doctrines of water law dominate American water rights jurisprudence. (30) First, the doctrine of riparian rights is used in places like England, France, and the eastern United States, where water is relatively abundant and inexpensive. (31) The riparian doctrine "ties one's water rights to accompanying ownership of the land along the watercourse and requires that one's use be 'reasonable' in relation to the needs of others on the stream." (32) In practice, it treats water as common public property and limits owners of property abutting streams to reasonable use of the flows, applying an enforceable duty not to use the streams in a way that would impede other water rights holders' similar usage. (33) However, this doctrine did not suit the American West's more arid climate where water is much more scarce, so another doctrine was created out of necessity. (34)

        The doctrine of prior appropriation developed when western prospectors in states like California found the rules of discovery and appropriation that applied to their mineral and property rights more useful than the doctrine of riparian rights to the capture of water. (35) According to the rules of prior appropriation, "one's right to use the water is based solely on capture and possession (appropriation); if there is not enough water, the earlier (prior) users have better rights than later users." (36) Miners found this 'first in time, first in right' concept...

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