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[Snape, W.J., III, 1998. Adding an Environmental Minute to the 1944 Water Treaty: Impossible or Inevitable? Appendix D in Workshop Proceedings, Water and Environmental Issues of the Colorado River Border Region Roundtable Workshop, San Luis Rio Colorado, Sonora, Mexico, April 30, 1988]

[NOTE: Footnote 15 below implies that restoration of the Salton Sea may negatively impact the health of the LCRB, including the lower delta. S.Hurlbert, SDSU]

Adding an Environmental Minute
to the 1944 Water Treaty:
Impossible or Inevitable?

 William J. Snape, III
Legal Director, Defenders of Wildlife

Presented By Professor David Getches
Natural Resources Law Center, University of Colorado

In some respects, the question charged to this panel is moot because we already have several "environmental" minutes to the 1944 water treaty between the United States and Mexico.2 As some of you know, Minute 2423 already addresses the problem of salinity, while Minutes such as 261, 264, 270, 273, 295 and 298 already deal with various border sanitation issues. What we need, more specifically, is an ecological Minute to the 1944 treaty that addresses the full water cycle of the Lower Colorado River Basin (LCRB) as it relates to the native flora and fauna of this massive riparian ecosystem.4

Will forging an ecological minute be difficult? Probably. Is it impossible? No more impossible than previous environmental minutes. In fact, given the poor ecological condition of the LCRB, given the mandates of U.S. environmental law, and given accepted notions of international law, Defenders of Wildlife believes it is impossible not to forge an ecological minute to the 1944 water treaty. The real question is when such a minute will be crafted. Generally speaking, the longer we wait, the more difficult it will be.

The ecological condition of the LCRB is dire on both sides of the border.5 In the United States, eight major dams manipulate every drop of water that runs through the lower basin, which has resulted in the endangerment of native fish such as the razorback sucker and bonytail chub, as well as the local extirpation of the Colorado squawfish and humpback chub. Riparian birds such as the southwestern willow flycatcher and yellow-billed cuckoo have also declined precipitously, mostly as a result of suppressed cottonwood/willow stand regeneration, which itself is directly caused by human interference with the Colorado's natural ebbs and flows. In Mexico, only a remnant exists of the hearty wetlands that Aldo Leopold called "a milk and honey wilderness." Even the three major patches of wetland habitat that exist in the delta region south of the border -- Rio Hardy, Cienega de Santa Clara, El Doctor, could be seriously harmed in the near future due to a return to drought seasons, lingering salinity problems and excess groundwater pumping. For the upper Sea of Cortez, which waits on the receiving end of the water flow from the Colorado through the wetlands, the future is especially bleak without help.

One significant source of aid for the LCRB is U.S. environmental law, which when enforced, could recreate some of the natural flow regime that historically marked the Colorado. Specifically, the U.S. Fish and Wildlife Service (FWS) and all other federal agencies must ensure that their actions do not jeopardize the continued existence of or adversely modify' the critical habitat of all listed species under the U.S. Endangered Species Act (ESA).6 It is also illegal for any party to "take" (e.g., kill, harm, harass) a threatened or endangered species without an incidental take permit under Sections 7 or 10 of the ESA, which requires overall conservation of the species and appropriate mitigation. These legal standards are especially relevant to the Bureau of Reclamation, which is in charge of water releases from the Colorado's dam system. At present, the federal government, the states, Indian tribes and environmentalists are all engaged in a stakeholder process called the Multi-Species Conservation Plan (MSCP), which is hoped will resolve long-term issues under the ESA but at present doesn't even include the Mexican side of the ecosystem as part of its mission.

The U.S. National Environmental Policy Act (NEPA)7 requires all federal agencies to prepare an environmental impact statement (EIS) for all actions that significantly affect the environment. Not only is it likely that the FWS/BuRec will need to complete an EIS for the MSCP, but environmentalists (as well as maybe the U.S. Environmental Protection Agency) are also calling on the Department of Interior to complete an EIS for its new water banking proposal.8 This latter proposal holds great potential for water conservation and ecological restoration, but only if analyzed in the ecological context of what constitutes "water surplus," "water shortage," and normal water flows." The U.S. Clean Water Act also has potential applicability to management of the lower basin.9

One of the large, looming questions about the LCRB is exactly how congressionally mandated environmental laws relate to the so-called Law of the River.10 At its most basic level, the Law of the River is a body of interstate compacts, federal statutes and judicial decisions that apportions use of the lower Colorado (below Lee's Ferry) among the U.S. federal government, the various Indian tribes, California, Arizona, Nevada and Mexico. Because the lower Colorado is the only real federalized river stretch in the United States, with the Secretary of the Interior serving as "Watermaster," it will be very difficult for the various Interior agencies to ignore applicable environmental laws. Particularly relevant to Mexico is the ESA requirement that federal action agencies such as BuRec must consult with the FWS on any action that might jeopardize a listed species; the totoaba, vaquita harbor porpoise, desert pupfish, Yuma clapper rail, and southwestern willow flycatcher are among the Mexican resident or migratory species listed under the U.S. ESA."

An integral component of the Law of the River is the 1944 Water Treaty itself. This agreement committed the U.S. to deliver 1.5 million a/f of water annually to Mexico and an additional 200,000 a/f in times of "surplus" (still without objective ecological criteria). In accordance with U.S. law, the upper basin and lower basin states agreed to split this Mexican obligation. When Mexico signed the 1944 treaty it was using the same 1.5 million a/f it uses today, while the U.S. was (and is) using far less of the 15 million a/f apportioned to the U.S. (though allegedly entitled to it).2 The U.S., therefore, largely imposed its Law of the River upon Mexico, leaving roughly only 10 percent of the Colorado River flow to the recipient country. Indeed, the 1944 treaty itself contemplated and authorized expanded notions of water use in Article 3.

Furthermore, it is a well accepted tenet of international law that a sovereign country possesses the right to utilize its natural resources to each's own benefit'3, except when such utilization harms the environment of another sovereign country.'4 This common sense tort-based principle is directly in play with the operation and maintenance of the lower Colorado hydrologic system, where U.S. diversion and pollution of the Colorado River leaves the Sonoran delta wetlands destitute. Article 17 of the 1944 treaty directly supports the "Trail Smelter" principle: "Each Government declares its intention to operate its storage dams in such manner, consistent with the normal operations of its hydraulic systems, as to avoid, as far as feasible, material damage in the territory of the other." Of course, Mexico must commit to use any additional clean water from the U.S. for ecological purposes.15

In conclusion, three hard realities lead to the conclusion that there will be an ecological minute to the 1944 water treaty:
1. international law requires it;
2. the ecological condition of the LCRB, especially the delta wetlands in Mexico, necessitates it; and
3. domestic U.S. law provides the authority and mandate to restore imperiled riparian species andtheir associated habitat.

The sooner we start re-tooling the Colorado water system, the easier it will be.6 The environmental community, and certainly Defenders, is ready to get specific about what needs to be done to achieve an ecologically sustainable river regime.7 But the political community must first demonstrate the will to achieve that end.8 This perhaps is our greatest collective challenge.

1Mr. Snape was unable to attend the San Luis workshop due to prior commitments to provide testimony regarding the transfer of title of irrigation infrastructure from the Bureau of Reclamation to the Wellton-Mohawk Irrigation and Drainage District.
2Treaty Between the United States of America and Mexico, Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande, Feb. 3, 1944, 59 Stat. 1219 [hereinafter U.S.-Mexico water treaty].
3This addendum to the 1944 water treaty sought to resolve a dispute over the increasing salinity of the U.S. water to Mexico, which was caused largely by outflows from the Wellton-Mohawk irrigation district in southwest Arizona. "The salt content of the river water entering Mexico rose from about 800 parts per million (ppm) [to] as high as 2700 ppm in late 1961. Minute 242 stipulated that the water received by Mexico should have salinity levels no more than 115 ppm higher than the water arriving at Imperial Dam. Jason Morrison et al., The Sustainable Use of Water in the Lower Colorado River Basin (1996) at 4.
4See, e.g., John Fritschie, Take a minute for the Colorado River. Las Vegas Review Journal (March 15, 1998).
5See generally Peter Friederici, Stolen River: The Colorado and Its Delta Are Losing Out. Defenders (Spring 1998); Frank Clifford, Plotting a Revival in a Delta Gone to Dust. Los Angeles Times (March 24, 1997) at Al.
616 U.S.C. Sections 1531 et seq.
742 U.S.C. Sections 4321 et seq.
8Offstream Storage of Colorado River Water and Interstate Redemption of Storage Credits in the Lower Division States, 62 Fed.Reg. 68495 (December 31, 1997). See also Bureau of Reclamation, Notice of Proposed Decision Regarding the Operating Criteria, 62 Fed.Reg. 52354 (October 7, 1997), where it is asserted that LCRB operating criteria are "flexible so that during the development of the [annual operating plan], variations in hydrologic conditions and changing demands for water use, including environmental demands and possible mitigation measures could be accommodated." (emphasis added).
933 U.S.C. Sections 1251 et seq.
10See generally Hoover Dam Documents.
11Defenders of Wildl~fe v. Lujan, 911 F.2d 117 (8th Cir. 1 990)(ESA consultation requirements apply to all agency actions affecting listed species, whether within U.S. or abroad), rev'd on other grounds Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
12U.S. demand for water continues to grow, frequently in both unsustainable and, to some, unpalatable ways. See, e.g., Mike Davis, Las Vegas Versus Nature, in Reopening the West, ed. by Hal K. Rotlunan (1998).
13Principle 21 of the Stockholm Declaration, adopted by the United Nations Conference on the Human Environment (1972); see also Article 3, Convention on Biological Diversity, 31 I.L.M. (1992).
14US. v. Canada ("Trail Smelter" Arbitration), 3 R.I.A.A. 1905 (1941).
15An opportunity for Mexico to show good ecological faith is its decision on how it will use the new water made available by Mexicali Comprehensive Sanitation Project, recently certified by the Border Environment Cooperation Commission (BECC) created by NAFTA. On the U.S. side of the border, plans to revitalize the Salton Sea directly impact the health of the LCRB, including the delta.
16A good case study will be the Glen Canyon Dam water releases that began occurring in 1996. William Stevens Grand Canyon Roars Again. The New York Times (February 25, 1997) at Cl.
17See, e.g., Mark Briggs and Steve Cornelius, Opportunities for Ecological Improvement Along the Lower Colorado River and Delta (1997); E.P. Glenn et al., Effects of Water Management on the wetlands for the Colorado River Delta, Mexico. Conservation Biology 10:1175-1186 (1996); David Getches, Colorado River Governance. 68 U. Colorado. L.R. 573 (1997).
18See Paul Zachary, Water Pressure: Nations Scramble to Defuse Fights Over Supplies. The Wall Street Journal (Dec. 4, 1997) at A 17 (redefining national security to incorporate eco-threats).

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