The 1944 Treaty: An Overview

BY RICHARD WARD FRYER

The Rio Grande serves as an international bound- ary between the United States of America and the United Mexican States. Both countries rely on the water in this river for domestic, municipal, agricultural, industrial, and hydro-electric gen- eration purposes. As of August 8, 2020, the Amistad-Falcon Conservation Capacity is at 43.1% for the United States and 8.4% for Mexico. This time last year, the United States was just below 60% and Mexico was hovering at around 15%. This article explores why and how water in the Rio Grande below El Paso is allocated between the two countries and offers some insight as to why such a disparity in the conservation capacity exists and how this disparity directly affects users in the United States, particularly those in the Rio Grande Valley.

The name of the watershed draining into the Rio Grande is called the Rio Grande Basin. The Rio Grande Basin includes approximately 335,500 square miles in Colorado, New Mexico, and Texas. Roughly 47% of this area contributes no surface runoff to the Rio Grande, leaving about 177,815 square miles of productive watershed. Only about 40,000 square miles of that productive watershed is located in Texas. An estimated 75% of the tributary inflow below El Paso comes from the watershed located on the Mexican side of the Rio Grande.

The water in the Rio Grande below El Paso, Texas is allocated by a treaty between the United States and Mexico. This treaty is formally called the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande. It is most often referred to as the “1944 Treaty” because the treaty was signed on February 3, 1944. As the formal treaty title suggests, this treaty not only divides the waters of the Rio Grande, but also the waters of the Colorado River and the Tijuana River.

The need to delineate the boundary between the two countries arose at the conclusion of the Mexican-American War upon the signing of the Treaty of Peace, Friendship, Limits and Settlement between the United States of America and the Mexican Republic (also known as the “Treaty of Guadalupe Hidalgo”) in 1848. The Treaty of Guadalupe Hidalgo drew the boundary between the United States and Mexico at the Rio Grande and the Gila Rivers. The population and agricultural growth on both sides of this international boundary, as well as the inconsistent precipitation, raised the need to regulate these boundary rivers. Colorado and Tijuana Rivers (in the Southwestern United States), and of the Rio Grande (aka the Rio Bravo) from Fort Quitman, Texas to the Gulf of Mexico. The 1944 Treaty also provided for the construction of up to three storage dams in the main channel of the Rio Grande. Two of those dams were actually constructed and are still in operation today. These dams are known as Falcon Dam and Reservoir and Amistad Dam and Reservoir. The 1944 Treaty allots the waters of the Rio Grande between Fort Quitman, Texas and the Gulf of Mexico between the two countries in the following manner: To Mexico:

• All of the waters from the San Juan and Alamo Rivers; • One-half of the flow in the Rio Grande below Falcon Dam and Reservoir; • Two-thirds of the flow from the Conchos, San Diego, San Rodrigo, Escondido and Salado Rivers and the Las Vacas Arroyo; and • One-half of all other flows from all the unmeasured tributaries between Fort Quitman, Texas and Falcon Dam and Reservoir. To the United States: • All of the waters from the Pecos and Devils Rivers, Goodenough Spring, and Alamito, Terlingua, San Felipe and Pinto Creeks; • One-half of the flow below Falcon Dam and Reservoir; • One-third of the flow from the Conchos, San Diego, San Rodrigo, Escondido and Salado Rivers and the Las Vacas Arroyo, provided that the one-third shall not be less, as an average amount in cycles of five consecutive years, than 350,000 acre-feet annually; and • One-half of all other flows from all the unmeasured tributaries between Fort Quitman and Falcon Dam and Reservoir.

The waters of the Colorado River are allotted to Mexico as follows: • A guaranteed annual quantity of 1,500,000 acre- feet; and • Any other quantities arriving at the Mexico points of diversion.

The 1944 Treaty is administered by the International Boundary and Water Commission (“IBWC”). As predecessor to the IBWC, the International Boundary Commission was established in 1889 to administer the provisions of the Treaty of November 12, 1884, to avoid any international incidents caused by changes in the beds of the Rio Grande and the Colorado Rivers. The word “Water” was added to the name of the International Boundary Commission upon signing of the 1944 Treaty. The IBWC is an international body consisting of a United States Section and a Mexican Section. The respective sections are overseen by the Department of State of the United States and the Ministry of Foreign Relations of Mexico. The IBWC is tasked with accounting for water use, storage, conveyance, water losses, and monitoring the 5-year delivery cycle.

The current 5-year delivery cycle is scheduled to conclude on October 24, 2020. Once again, Mexico is about 420,000 acre-feet short of meeting its 1944 Treaty obligation in the current cycle. Meanwhile, the United States continues to dutifully meet its annual 1,500,000 acre-feet obligation on the Colorado River. Mexico’s deficit on the Rio Grande is not due to a shortage of water. Mexico’s Amistad - Falcon 8.4% of Conservation Capacity is only a part of the picture. Mexico’s combined storage is actually at 38.94% of its conservation capacity.

Since execution of the 1944 Treaty and the construction of the Amistad and Falcon Dams and Reservoirs, Mexico has constructed several upstream dams and reservoirs to impound water that would otherwise flow into the Amistad-Falcon system. Mexico’s combined storage includes water stored in those upstream dams and reservoirs. By impounding water upstream of the Amistad - Falcon system, Mexico is not only intentionally running a deficit in the 5-year delivery cycle, it is preventing its own water from entering the Amistad-Falcon system. This creates a problem because approximately 75% of tributary inflows into the Rio Grande below Fort Quitman, Texas come from Mexico and the Amistad-Falcon system was designed to operate with the full inflows of both Mexico and the United States. System losses such as evaporation and seepage were anticipated and factored into the projected overall operation of the Amistad-Falcon system. The total projected tributary inflows of both Mexico and the United States and the projected system losses were then used to determine the water allotments detailed in the Treaty. As a result, even if Mexico satisfies its current 5-year delivery obligation to the United States, the United States’ water still bears the brunt of the Amistad - Falcon system’s losses due to Mexico preventing its share of the water from entering the system.

Just recently, Mexico proposed using non-Treaty water to again satisfy its water debt. Non-Treaty water consists of water from rivers and streams not listed in the Treaty which are located below Falcon Dam and Reservoir. By allowing Mexico to use non-Treaty water to satisfy its debt, the IBWC would be perpetuating a bad precedent in exchange for yet another temporary fix that would provide little to no long-term relief to users in the United States because the Amistad-Falcon system is not designed to store non-Treaty water. Also, much of the water from non-Treaty sources is drainage water from agricultural fields in Mexico which has a higher salinity. This poor-quality water harms the very crops and livestock that are already suffering due to Mexico’s deficit.

Mexico’s regular and continuing violations of its 1944 Treaty obligations cost Texas residents millions of dollars in lost crops as well as increased costs for the transmission, treatment, and delivery of potable water. The IBWC must hold Mexico accountable by not allowing Mexico to substitute the water that should be allocated pursuant to the Treaty with non-Treaty water and to require Mexico to release more of its water into the Amistad-Falcon system, as contemplated in the 1944 Treaty. It is critically important that stakeholders in the United States continue to express their frustrations about Mexico’s continuing violations to their state and federal representatives to raise awareness about these pressing issues and demand that the 1944 Treaty be strictly enforced by the IBWC.

Richard Ward Fryer is an attorney with Fryer & Hansen, PLLC. He represents many water supply corporations and water districts in the Lower Rio Grande Valley.