White Jankowski Lawyers

United States and Mexico agree to new plan for cooperative management of the Colorado River

October 20, 2017

On September 27, the Governments of the United States (U.S.) and Mexico announced the signing of Minute No. 323, an addendum to the United States-Mexico Treaty on Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande (1944 Water Treaty), which governs how the two nations cooperatively manage the Colorado River.  The agreement builds on and mostly supersedes Minute No. 319, a prior agreement from 2012.

The official report acknowledges “greater uncertainty in the outlook for basin conditions” and recognizes that these “changed conditions” necessitate “a clear need for continued and additional actions due to the impacts on Colorado River storage resulting from various factors, including meeting system demands, the effects of hydrologic conditions, and increased temperatures.”  The report applauds “the results achieved in the Minute 319 pilot program on water for the environment, in particular the pulse flow of 2014,” and commits additional resources to further environmental restoration projects.

The report acknowledges the “continued interest of both governments in cooperating with regards to the riparian and estuarine ecology of the Colorado River Limitrophe and Delta.”  To that end, the report “recommend[s] as a target an average annual volume of 45,000 acre-feet (55 mcm) and restoration funding of up to $40 million dollars over the term of the Minute . . . to maintain existing environmental restoration sites and to benefit other sites in the Colorado River Delta riparian corridor and estuary.”  The report also recommends expanding the existing 1,076 acres of restored native habitat to 4,300 acres.  Minute No. 323 establishes “a binational coalition of nongovernmental organizations (NGOs)” as part of the restoration team, and that coalition has pledged to provide an equivalent one-third portion of water and funding for environmental projects as compared to the two countries.  The report also establishes a Binational Environmental Work Group made up of federal and state representatives from the U.S. and Mexico, as well as representatives from the coalition of NGOs.

One of the most well-known features of Minute No. 319 was the 2014 “pulse flow,” which was designed to mimic historic spring floods on the Colorado River and involved a large release of water from Morelos Dam, located on the U.S.-Mexico border, which reunited the Colorado River with the Sea of Cortez for the first time in nearly fifteen years.  Minute No. 323, however, does not specifically mention any future pulse flow; although the report does include an increased amount of water set aside for restoration purposes.  According to High Country News, the timing and specific size of each release under Minute No. 323 is still to be decided and a second pulse flow is not out of the question. 

Minute No. 323 contains specific amounts of water to be delivered to Mexico, which varies depending on changing reservoir conditions.  The report acknowledges that “voluntary conservation measures [are] not sufficient to reduce the risk of temporary or prolonged interruptions in water supplies that would result in adverse impacts on the society, environment, and economy of the Colorado River system” and declares that the two countries “need to take additional immediate measures to protect and benefit the Colorado River system by seeking to avoid reaching critical reservoir elevations at Lake Mead.”  Accordingly, Minute No. 323 establishes a Binational Water Scarcity Contingency Plan, which “provides for each country to save specified volumes of water at certain low reservoir elevations for recovery at a later date when reservoir conditions improve.”  The report reasons that “[b]y saving agreed-upon amounts of water through this plan, [the two countries] will significantly reduce the risk of critically low reservoir elevations.”  The report also discusses Mexico’s concerns related to the salinity and the variable, inconsistent flow of water flowing across the border from the U.S.  The report reaffirms that both nations will cooperate to resolve such issue and proposes numerous solutions, including the establishment of a Binational Flow Variability Work Group.

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