a n a l y s i s

Reinventing the International Boundary and Water Commission
by Stephen P. Mumme | July 2001

Its authority embedded in the 1944 U.S.-Mexican Water Treaty and earlier agreements, the IBWC’s formal duties reflect government priorities at the close of World War II—priorities centered on allocating rights to international river waters, mitigating seasonal floods, and dealing with drought emergencies. Ancillary chores such as hydropower generation were tacked on to its mission, as was responsibility for a few nagging binational sanitation problems. The result was a bureaucratic hybrid, a diplomatic body overseen by engineers, officially the servant of the two foreign ministries but politically dominated by the U.S. Congress. Its mandate was decidedly bipolar, consisting of treaty interpretation on the one hand and operational responsibilities—maintaining the border, managing international dams, budgeting use of treaty water, operating hydropower facilities, and developing solutions to binational sanitation problems—on the other.

These features shaped an agency—two, coordinate agencies, really—whose national sections deemed their front line mission to be the preservation of national water entitlements. With a mandate treaty dividing the waters of the Colorado and Rio Grande, rivers serving the most arid zones of both countries, the IBWC’s specified functions are without doubt the most strongly embedded of any binational agency or joint mechanism in play on the U.S.-Mexico border. Changing that mandate has proved beyond the means of any president on either side of the border, singly or in tandem.

It is this IBWC feature that has been so aggravating to so many environmentalists. The IBWC has a virtual monopoly on agreements dealing with transboundary water management—such agreements must be negotiated through the IBWC. Its lead role is acknowledged in every major binational agreement on border water management, the La Paz Agreement, the Border XXI Program, and by the NAFTA-created Border Environment Cooperation Commission (BECC). Moreover, IBWC joint agreements are technically exempt from domestic regulations in Mexico and the United States.

Since NAFTA, however, the commission’s role in managing border water has been increasingly hemmed in by newer binational commitments and agencies whose functions overlap its own. Products partly of frustration with the IBWC’s limitations and its failure to respond to border environmental concerns in the 1970s and 1980s, these new programs and agencies address a wide range of health and environmental problems, many of which transcend the IBWC’s treaty-mandated functions. Today, with new presidents in both countries and a new U.S. commissioner-designate, it is fair to ask what the commission’s role is likely to be—or should be—in the next decade and what reforms, if any, are feasible to enable the IBWC to advance sustainable development in border water management.

Water Quality: Can the Marriage Be Consummated?

In the post-NAFTA era, the commission’s role in water quality issues seems almost vestigial, eclipsed by BECC and a mix of domestic and binational programs sponsored variously by one or both of the two governments. Indeed, no other sphere of the IBWC mandate has been so influenced by the surge in environmental concern in the past decade and the evolution of the NAFTA border institutions. The BECC-North American Development Bank (NADB) duo has overseen a proliferation of border water infrastructure projects—over 40 certified to date with plenty more in the pipeline. Of these, the IBWC is now directly involved in planning, building, or managing less than a dozen. The EPA-SEMARNAT Border XXI Program, meanwhile, has focused attention on important technical and process issues like hydrological modeling and training.

At first glance, these efforts seem light-years beyond the commission’s old-fashioned, brick-and-mortar approach. But appearances can be deceptive. A more accurate reading of the IBWC’s niche is that it has taken up a supporting role in domestic water infrastructure development while continuing to tackle the core problems attached to its treaty mandate. In terms of water infrastructure, the commission still leads in dealing with cross-border sanitation problems that impact the international boundary. It continues to operate and expand its older international wastewater treatment plants at Ambos Nogales and Tijuana-San Diego, and has overseen the construction of new wastewater treatment facilities in Cíudad Juárez and Nuevo Laredo. It monitors the performance of domestic facilities at Douglas-Agua Prieta, Ambos Naco, and Mexicali, where effluents cross the international boundary. Thus, the commission is still very much involved in wastewater infrastructure development and operations along the border.

The IBWC is also now more intensively engaged in monitoring the quality of water in international streams and rivers than it was previously. A cursory look at the activities of the Border XXI Program’s Water Workgroup in 1999 finds the commission involved in 11 of 19 workgroup efforts, ranging from modeling the hydrogeology of Santa Cruz River groundwater to planning wastewater collection in Nuevo Laredo and Matamoros to monitoring the South Bay Ocean Outfall’s seawater impact near San Diego.

There is much in the IBWC’s work today that is new and different, as well. In keeping with a trend that preceded the NAFTA accords, the commission is now more engaged with other agencies in discharging its functions—a shift most apparent at the U.S. section. Whereas two decades ago the USIBWC had near total ownership of its budget, further development now depends on inputs from a wide range of federal, state, and even municipal partners.

With money comes power, and so for nearly two decades the IBWC’s monopoly on planning projects has been eroding. Through the 1983 La Paz Agreement’s Water Working Group, and later in Border XXI, the IBWC has been drawn into inter-mestic discussions with a range of federal and state agencies in both countries. Although the commission still has clout and typically takes the lead on matters strictly international in scope, it consistently assumes a support role where domestic developments are concerned.

As a result, today the IBWC is involved in discussions that would have been unthinkable 20 years ago, ranging from the merits of river basin councils to low-cost wastewater treatment alternatives. One need only look at the commission’s involvement with BECC, where the two commissioners serve as ex officio members on the board of directors. Under a memorandum of understanding between the two agencies, BECC draws on the IBWC’s technical expertise on a reimbursable basis. The IBWC, in turn, finds BECC a valuable forum for gauging public needs and demands related to border water management. Where BECC-NADB funding is involved, BECC’s certification process is applied to IBWC-managed projects, enhancing their viability and public support. The IBWC, in Minute 304, has determined this arrangement to be treaty-compatible and “complementary to the Commission’s ongoing efforts to give preferential attention to the solution of sanitation problems in the border waters.” Though not quite a symbiotic relationship, the arrangement has worked out better than expected. Many attribute this to the skilled diplomacy of and close working relationship between recently departed U.S. commissioner, John Bernal, and his Mexican counterpart, Arturo Herrera.

So although it initially resembled a shotgun wedding, the IBWC-BECC alliance is likely to endure. Institutional relationships and cooperative practices built up over the past seven years have produced a practical division of labor around water quality issues that, while less than optimal in the eyes of some stakeholders, satisfies both treaty requirements and the public’s demand for water quality infrastructure. BECC leads the way in border water infrastructure provision, while the IBWC lends technical support and takes the lead in situations with a specific transboundary water component.

The New Politics of Water Allocation: Drought and Biodiversity

At its core, the IBWC’s mandate has been about (to steal a phrase from the title of historian Norris Hundley’s book) “dividing the waters” or (as agricultural economist Henry Vaux likes to put it) “securing endowments.” It is difficult to find a border issue as controversial as this. Before the 1944 treaty ink dried, well before Bureau of Reclamation estimates of Colorado River runoff were shown to be erroneous, and decades before scientists fingered global warming’s threat to regional water stocks, the diplomats who created the IBWC understood that regional water supplies could not satisfy all potential water demands in the border area.

This preoccupation with endowments in a region of scarcity exerts a profound impact on the commission’s behavior. Since 1944, virtually every binational water matter reaching the IBWC docket has been vetted for its impact on national endowments. Endowment review underlies the commission’s notorious stance on confidentiality, and it figures prominently in the IBWC’s greatest challenges—the Colorado River salinity crisis of the 1960s and 1970s provides a case in point. Until the 1970s the commission’s clientele in the U.S. and Mexico was almost wholly composed of traditional stakeholders—today’s “water buffaloes”—concerned with defending endowments to the exclusion of other issues.

This, of course, has changed. Environmentalists, economic justice advocates, smart-growthers, and other constituencies for sustainable development are today influential stakeholders in the border water community. These groups want water used differently, envisioning more efficient uses of water resources, better water conservation, long-term forecasting and contingency planning, and reallocations favoring urban needs or nontraditional projects. Though often advocating different uses, these groups share an intense concern with regard to water quality.

The clout of these new stakeholders was reflected in the IBWC’s agenda during the 1990s, in which drought management, groundwater management, and ecological preservation figured prominently. However, the IBWC is handicapped here by a treaty that either failed to anticipate many of these problems or underestimated their magnitude. Among the treaty’s more glaring omissions: groundwater allocation, mechanisms for sharing waters from lesser streams and rivers, and consideration of ecologically based water needs. The IBWC has reluctantly tackled this new agenda, mindful to anchor its activities in the treaty and sensitive to the risks of appearing to advocate changing the law of the rivers.

Drought. Sustained drought in much of the border area over the past decade has driven this issue to the forefront of the agency’s concerns. Though the 1944 treaty provides a formula for rationing Rio Grande and Colorado River waters in times of drought, it is deficient in many ways. Its failure to define the operative phrase “extraordinary drought” is a major weakness that, at minimum, politicizes and delays the implementation of drought mitigation procedures. The IBWC has little discretion to initiate drought proceedings, the treaty’s application to tributary streams is debatable, and there is no provision for long-term structural adjustment to climate changes.

Even so, some modest progress has been made. In 1995, in response to urgent conditions on the Mexican side of the Rio Grande, the IBWC—with the Texas governor’s consent—negotiated Minute 293, an emergency water loan to Mexico to meet municipal needs. Though its provisions are largely circumstantial, Minute 293 at least sets a limited precedent for water sharing to meet the most critical needs of border residents. It also provides for regional cooperation regarding water conservation between the two countries and encourages binational data sharing on water availability between federal and state agencies.

Much more needs to be done, of course, but this classic apportionment issue has already put the IBWC in the hot seat, making solutions more elusive. Last year, irate Texas state congressmen pushed through a joint resolution demanding that Mexico immediately repay its water debt. The commission’s response, controversial Minute 307, commits Mexico to a payment schedule to partly satisfy the debt. In a deft bit of diplomacy, the IBWC’s commissioners persuaded the governments to “work jointly to identify measures of cooperation on drought management and sustainable management of this basin.” Still, it is clear that the national posturing seen in the run-up to Minute 307 helps little in working out long-term binational solutions to climate-induced scarcities.

Groundwater. Though groundwater concerns were neglected in the 1944 treaty, the IBWC has had a partial mandate to explore mechanisms of binational cooperation regarding transboundary groundwater since the salinity crisis first drew attention to the problem in the late 1960’s. Minute 242, signed in 1973, charged the commission with monitoring groundwater withdrawals in the San Luis Rio Colorado-Yuma area and required the two governments to inform each other of any new developments that might affect the other party. Minute 242 also contemplated the need for a comprehensive agreement addressing groundwater.

Although a comprehensive groundwater agreement has proven elusive, the IBWC has moved in the past decade toward mapping and monitoring critical groundwater areas along the border. The La Paz/Border XXI Working Group, has drawn attention to the urgency of getting a handle on groundwater extractions in highly interdependent areas like El Paso-Cíudad Juárez. The La Paz process also spawned binational resource management models, like the EPJAZ Joint Air Quality Task Force, that may be adapted to manage transboundary groundwater in urban areas. While factfinding and diplomacy still move along at a trickle, some agreements may gel in the next decade based on initiatives now underway. Unfortunately, unilateral measures now in play are sure to hinder progress in other localities.

Biodiversity. Biodiversity preservation is hardly new on the IBWC’s agenda, though it has gained greater purchase over the past ten years. In the 1970s, the Environmental Impact Study provisions of the U.S. National Environmental Policy Act forced the USIBWC to reckon with this issue; by 1976, the first serious binational pressure to address this type of problem arose in relation to smelter contamination of San Pedro River waters. The commission’s lackluster response helped draw national environmental agencies more directly into border environmental management via the 1983 La Paz Agreement.

The IBWC’s reluctance to act on biodiversity issues certainly tarnished its reputation. Its stodginess traces partly to one of the principal anachronisms of the 1944 water treaty: its failure to recognize habitat preservation or environmental uses of treaty waters while privileging navigation and hunting. Overappropriation of treaty waters is the core problem, however, since biodiversity protection demands attention to in-stream flows as well as to water quality. Building consensus for modification of the treaty’s in-stream flow regime may very well be the toughest political challenge the commission currently confronts.

We need look no further than the Colorado River Delta for evidence of this challenge. In the past decade, the delta has gained prominence on the agendas of major conservation groups and government agencies alike. The delta provides critical habitat on the Pacific flyway and sustains a rich melange of aquatic life in the upper California Gulf. Despite zero water allocated for this purpose, its vitality exists due to highly saline brine discharge from U.S. and Mexican irrigation projects and periodic surge flows down the river’s main stem. However, recent U.S. policies upstream aimed at settling interstate water claims threaten to reduce even these meager resources. Any conceivable solution for delta restoration and maintenance thus requires some reallocation of existing entitlements.

In 1998 the IBWC set up a task force to study the delta and ascertain its water requirements. The commission moved cautiously to formalize the process late last year with a binational agreement on a conceptual framework for U.S.-Mexico cooperation in delta restoration analysis. That agreement, Minute 306, while delta-specific, links IBWC biodiversity activities to the 1944 treaty and provides a basis for further efforts in this area. In the case of the delta, it calls for “joint studies that include possible approaches to ensure use of water for ecological purposes” in the delta “based on the principle of equitable distribution of resources.”

Despite this positive development, the IBWC can do little if upstream stakeholders steadfastly hoard their entitlements. Recent studies show that as little as just 32,000 acre-feet of water annually—about half that saved from a controversial project to staunch seepage from the All-American Canal—may be sufficient to restore the delta’s ecology. Under Minute 306, if this figure stands, half the amount would come from the United States. Thus far, U.S. up-basin states adamantly oppose any such concessions; their stance on the issue, in turn, has led the U.S. Bureau of Reclamation to adopt a similar posture.

Diplomacy and Domestic Politics: Are the Two Compatible?

Underlying the IBWC’s reputation as a secretive agency with a penchant for hoarding vital data on border water dynamics is its diplomatic mandate. Constituted with a diplomatic brief at a time when federal governments dominated the border policy stage, the IBWC’s national sections adopted a classic diplomatic stance aimed, in the case of treaty water issues, at establishing binational consensus and avoiding undue politicization of water agreements.

Times are different. Not only is the IBWC’s agenda less dominated by allocation problems, but the political context has changed as well. New stakeholders are now involved in debates over border water management, and informal mechanisms of cooperation now exist that eclipse the centralized approaches of the past. Along with a heightened emphasis on water quality, new policy objectives have emerged, such as institutional accountability, greater public participation, and a programmatic emphasis on the basic human needs of border residents. Enmeshed now in Border XXI and BECC, the IBWC can no longer dominate the water agenda or sidestep grassroots politics. Fewer issues can be solved top-down.

Although skepticism may still be in order, these changed dynamics have already begun to reshape the commission. Since 1994 its national sections have stepped up public relations activities, fielding new personnel to respond to inquiries and deal with the public. Both sections established environmental offices in the 1990s, and the USIBWC’s environmental staff tripled from 4 to 12 between 1990 and 2001. Though the IBWC still holds its facts close to the vest, the public now has greater access to some of its data. All agency minutes and most IBWC reports are publicly released and are web-accessible. Mexican commissioner Arturo Herrera has gone so far as to argue that the IBWC should become a one-stop technical information port for border water resources, publishing regular updates that are publicly accessible, just as it now does with its storage and release data.

Even the commission’s identity is changing. Under John Bernal’s guidance, the USIBWC developed a new strategic plan, which states—in what is certainly a first—that the commission now aims “to provide environmentally sensitive, timely, and fiscally responsible boundary and water services, while applying sustainable development principles.” The plan’s preamble statement of organizational values speaks about performance, people, and process—the latter emphasizing openness, teamwork, and participatory goal setting in a bottom-up fashion. In matters of substance, the plan commits agency water managers to “a visionary United States-Mexico environmental policy ... in a manner that is responsive to stakeholders.” The two sections are exploring a Minute that would consolidate these values.

Whether the commission will now incorporate these values remains an open question. Environmentalists are justifiably suspicious of the agency’s centralizing norms and practices; as veteran observer Helen Ingram puts it, the IBWC is still “essentially a closed shop.” The 1944 treaty is still there, exposing the IBWC to the slings and arrows of its traditional stakeholders—irrigation districts, state and federal water agencies, and basin states’ policy committees—who have historically shaped its institutional practices.

It now falls to the commission’s managers—in the U.S. case, former El Paso Mayor Carlos Ramírez, whose appointment is still unofficial—to consolidate recent IBWC reforms and deepen its institutional transformation. The commission’s operational functions must be ably discharged while it attempts to grapple with new needs: establishing a binational groundwater management regime, arriving at equitable responses to prolonged drought, cementing its role in environmental protection, establishing new protocols for involvement in transboundary environmental impact assessments, and partnering with the NADB, BECC, and other agencies to develop financially viable and environmentally sustainable water infrastructure projects. What sort of success the IBWC will have on these fronts remains to be seen. What is certain is that the commission will be pressed to work more transparently and more politically, crafting multistakeholder coalitions in support of binational agreements.

Stephen Mumme is a professor of Political Science at Colorado State University with a long-standing interest in border environmental and natural resource management issues. He may be contacted at stephen.mumme@colostate.edu.

Published by the Interhemispheric Resource Center's Americas Program. All rights reserved.

Recommended citation: "Reinventing the International Boundary and Water Commission," Americas Program Analysis (Silver City, NM: Interhemispheric Resource Center, July 2001).

Web location: http://www.americaspolicy.org/briefs/2001/bl79.html