Water in Mexico
Legal Framework
The national legal framework on water can be described as complex, profuse and scattered. In other words, because of water’s eminent transversal nature, it’s regulated by a large number of different legal texts. This hinders the optimal regulation of the water resource, its compliance and enforcement.
Even though water is regulated by a broad legal framework, the following regulations are considered among the most relevant: Mexican Constitution, the Law of National Waters (LAN, in Spanish) and the General Law on Ecological Balance and Protection of the Environment (LGEEPA, in Spanish). However, it’s important to keep in mind that there is an extraordinary amount of legal texts on water, including international and bilateral treaties.
Mexican Constitution
The 27th article if the Mexican Constitution clearly states that waters found within the boundaries of the national territory are property of the nation. The fifth paragraph even lists the waters that should be considered as national waters (territorial sea, lagoons, rivers and their tributaries, and so forth). This article is relevant for it establishes that, except in some cases, that the State is the original proprietary of the national waters. The same article also refers to the State’s faculty to transfer its domain on public goods to particulars to constitute private property. The sixth paragraph specifies that the Nation’s ownership is inalienable and essential, and the exploitation, use, or enjoyment of these resources by individuals or by associations governed by Mexican law cannot take place except by means of concessions granted by the Federal Executive according to the rules and conditions which the laws establish. The Constitution also acknowledges the State’s right to impose the modalities to the private property dictated by the public interest (third paragraph) and to regulate, in social benefit, the appropriation of its natural resources s with the purpose of making an equitable distribution of the public riches, care for its conservation, achieve a balanced development of the country and improve living conditions of rural and urban populations.
Another relevant constitutional article is the 4th article which, even though it doesn’t mention water specifically, does establish the right of every person to an environment that’s adequate for their development and wellbeing.
Lastly, the articles 73, 115 and 122 of the constitution, establish the legislative faculties of the Congress of the Union (Senate and House of Representatives) on water issues, the faculties of Municipalities in the subject of water as well as those of the Legislative Assembly of the Federal District.
The National Water Law
The National Water Law (LAN, in Spanish) was first created in 1992, and modified for the last time in 2004. This law is regulatory of the 27th article of the Mexican Constitution on the subject of national waters. Its purpose is to regulate the use, appropriation or exploitation of these waters as well as the distribution, use and preservation of its quantity and quality in order to achieve sustainable development. The law establishes the National Water Commission (Comisión Nacional del Agua, CNA) as the administrative authority on national water issues (Article 9). Among its main attributions is the formulation of the national water policy. The National Water Commission is also in charge of ensuring the proper compliance and enforcement of the law, of emitting concessions, allocations and water discharge permits as well as keeping the Public Water Rights Registry. Finally, the Commission must support and endorse the participation and organization of users to improve water management.
The National Water Law establishes water as a “public good of federal ownership, vital, vulnerable and finite, with social, economic, and environmental value” and that the responsibility of its preservation in quality and quantity lays as much with the State as with Society. The law also acknowledges the subject of water as a national security concern. It states that the water resources management must be done in an integrated manner and by watershed, and that the latter’s environmental services must be quantified and paid. Furthermore, the law recognizes besides the traditional water uses such as industrial, agricultural and public, the environmental use of water, in other words, the law recognizes that nature as another water user.
The National Water Law also classifies water management in watersheds, hydrologic regions and hydrologic-administrative regions and establishes the creation of Watershed Organisms and Watershed Councils. Watershed Organisms are autonomous governmental institutions, ascribed to the National Water Commission, in charge of carrying out integrated water management through their specialized technical, administrative and legal units. Watershed Organisms must rely on Watershed Councils. The latter are coordination instances of mixed integration which provide support, consultation and advice between the National Water Commission, including the corresponding Watershed Organism and the federal, state and municipal entities, and the representatives of water users, civil society organizations and the respective watershed or hydrologic region. (Art. 3, fraction XV).
General Law on Ecological Balance and Environmental Protection (LGEEPA, in Spanish)
The LGEEPA focuses mainly in regulating the prevention and pollution control of water and aquatic ecosystems. It establishes several criteria that are worth mentioning. For example, the law states that the prevention and control of water pollution is fundamental to avoid the reduction of its availability and to protect the country’s ecosystems. It also emphasizes the shared co-responsibility of State and Society to prevent the contamination of superficial and underground waters. It highlights that the use of water in different productive activities susceptible of producing its contamination, carries the responsibility of treating the generated water discharges so that they can be reused in other activities, and the ecosystems balance is kept. Urban residual waters must undergo treatment as well before being discharged to the different water receptor bodies.
These criteria must be taken into account when emitting official mexican norms for the use, treatment and disposal of residual waters, for the treatment of water for human use and consumption, and for the infiltration and discharge of residual waters in national. In the establishment of specially designated areas the criteria must also be taken into account, such as the prohibitions and reserves mentioned in the National Waters Law. It must also be considered when emitting concessions, permits and general authorizations in relation to disposal of residual waters. And in the organization, direction and regulation of hydrology labors in watersheds and flows of national superficial or underground waters. In the classification of water bodies, according to their assimilation o dilution capacity and the contaminant charge they are able to receive.
Mexico: main water challenges
Mexico’s water situation is so complex and delicate that during the administration of the Mexican President Vicente Fox, it was declared a matter of national security. To understand this situation it’s important to first take a look at the country’s geography. Around two thirds of the country (central and northern regions) has arid or semi-arid climates and the rest of the country is characterized by a tropical climate. This basically means that a large percentage of the country has low water availability in the first place.
To compound matters, the largest percentage of the population, as well as large cities and industrial, agricultural and are distributed precisely in these arid and semi-arid regions. Even though the total volume of water resources in the country is abundant, its distribution affects its availability in areas of high population density and economic activity. This has generated a preoccupying pressure on the scarce water resources in arid regions. In contrast, the south part of the country stores almost 70% of the country’s water resources but only one fourth of the national population. Ironically, this region has the least coverage of potable water distribution services and sanitation and a great percentage of the population, especially in rural and indigenous communities, suffers a high degree of social marginalization and poverty. At the national level, around 11 million people still lack access to potable water and circa 15 million do not have access to sanitation.
The contrasts indicated in the paragraph above are reflected in the availability indexes of water resources. According to official figures (National Water Commission, Water Statistics 2005), the availability index for the southern region during 2005 was around 13,279 m3 per habitant per year, in contrast to the central-northern regions which had 1,874 m3/hab/year. In other words, the south has 7.3 times more water than the central-north regions. Population growth also affects water availability. At the moment, the water availability index is around 4,446 m3/hab/year, a number that is considered worldwide as a low value. However, if we take into account models of population growth in the future, predictions indicate that for 2025 the water availability could be around 3,807 m3/hab/year.
The National Water Commission states that from the total volume of allocated water, circa 75% is destined for agriculture, 9% for the industry and the last 14%, for public use. Nonetheless, due to inefficient systems and a lack of a civic culture of water saving, a lot of it gets wasted. According to studies elaborated by the National Water Commission, the agriculture sector is the sector that more water uses and also that wastes more water: between 45 to 65% of the allocated water is lost. On the other hand, cities lose around 50% of this vital liquid through leakage of the water distribution systems.
In general, the different productive activities use mostly superficial waters and less underground water. In the specific case of public use, more than half of the water supplied comes from aquifers and the rest from superficial waters. However, barely between 15 and 25% of the generated residual waters are treated, the rest are discharged to the rivers and other water bodies untreated.
As a result of the latter, as well as from the emptying of garbage to rivers and lakes, we face today a serious pollution problem with health related consequences for the population and for the balance of the ecosystems. It is estimated that around three fourths of the superficial waters of the country have some degree of pollution. To this, the fact that many water resources are overexploited and are under a high risk of disappearance must be added. The modifications that have been done to watersheds, such as construction of infrastructure for the control of water flows, have had grave consequences for communities and ecosystems.
On the other hand, the population is many times unaware from where the water that comes out of the faucet comes from originally. They are also unaware of the important role forests play in capturing and infiltrating water or of the associated costs of maintaining these ecosystems, as well as the operation and maintenance of the infrastructure and the system that brings the water to their homes. Because of this, an important part of an adequate management of the water resources is based on public participation and awareness.
In Mexico, the sustainable water management requires the participation of civil society as much as that of the government, the recognition of the environment as another user that merits an adequate representation in decision making instances. It is necessary to keep moving forward in the development of schemes that allow the sustainability of the ecosystems which provide water in the long term, to ensure the right of every human being to access water in quantity and quality and for ecosystems to maintain their ecologic functions. |
