The objective of this project is to suggest possible institutional alternatives for the management of transboundary groundwater resources bisected by the U.S.-Mexico border. The report concludes that the heaviest groundwater users in the U.S. are those states which are contiguous to Mexico and yet, paradoxically, the law and institutions of those border states are woefully inadequate to control the exploitation of these groundwater resources. In addition, international competence over aquifers divided by the frontier is largely undefined; it is fair to say that the legal and institutional situation is chaotic. Coincident with this legal near vacuum, significant population increases are projected on both sides of the border which make it reasonable toanticipate that there will be increasing investment in groundwater facilities and accelerating demand placed on groundwater resources which are bisected by the international boundary between the two countries. The coming together of these two factors can be described as a collision course; with increased demand for a limited resource, combined with a striking absence of institutions for either resolving disputes or managing the resource, the potential for dispute between the two countries has to be something more than imaginary.

This legal near vacuum is not unique to the U.S.-Mexico frontier, in that there has been a failure to focus on the regulation and management of groundwater in most legal systems.

In this kind of situation, each quota users water right is insecure because other pumpers may take possession of the mobile resource at any time. Accordingly, the individual surface owner is encouraged to exploit the groundwater resource as quickly as possible, so that the fluid and mobile water resource will not be captured by others. Thus, specifically along the U.S.-Mexican border, it cannot be said that water users have the security of their expectations, nor can it be said that whatever rights they hold to water and its use will be stable and dependable over time. Quite the contrary. We have: 1) projections for growing population on both sides of the border; 2) a situation in which north of the border (with the exception of New Mexico) no state has legal institutions which are adequate to control pumping; 3) no international control except at Yuma under the interim arrangement of paragraph 5 of Minute 242 which can prevent either nation from “stealing its neighbor’s water.” Therefore, we have a situuation which encourages each nation to outdo its neighbor by developing its groundwater resources as rapidly as possible, perhaps even to the point of depletion of the groundwater resource.

In order to avoid these uncertainties, it is suggested that the International Boundary & Water Commission be given explicit jurisdiction over groundwaters intersected by the international boundary with responsibility to identify and declare “designated international groundwater areas” and authority to apportion the waters of these designated groundwater areas between the two nations and to determine the allowable withdrawals for these areas as determined by the physical criteria of the aquifer. This would establish an objective amount of water to which each nation was entitled. Once the division of the groundwater was made, the internal administrative machinery of each nation would be responsible for allocating that nation’s share of the aquifer, according to its water law and administrative procedures. This would have the advantage of providing security for investment in water resources on each side of the border. It would prevent the possibility of pumping wars, as each side would know with certainty how much water it was entitled to, and there would be no need to try to get there the firstest with the mostest. The resource would not be threatened through uncontrolled exploitation, and the potential for conflict between the two countries would be reduced.

Project No. 1345626