St. Mary's Law Journal


M. Diane Barber


This paper will explore the dilemma of implementing an appropriate legal format to best guide proposals for resolution of groundwater contamination. It will review groundwater under the Integrated Environmental Plan for the Mexico-United States Border Area (the Plan) and examine groundwater law in Mexico and in the four border states from a historical perspective. It will consider existing agreements between the two countries and propose adoption of the Bellagio Draft Treaty as the only legally viable means of achieving long-term remedial groundwater solutions. This paper, however, will also note isolated situations may be effectively addressed by the IBWC Minute, pending treaty negotiation. The paper will argue judicial and legislative systems must recognize hydrological concepts which are fundamental to sound, efficient management of groundwater as a national resource. It will suggest such an approach, when managed by the IBWC, will not create needless havoc with 1944 Water Treaty allotments. Finally, the paper will conclude the Plan is a commendable, binational initial effort which addresses the delicate issue of managing transboundary aquifers. Given the turmoil and complexity of the domestic legal regimes surrounding groundwater, the Bellagio Draft Treaty should be adopted to accomplish the groundwater goals of the Plan. This approach, when enforced by the sovereign states, will be more tenable because it causes the least disruption. Man is not yet ready to acknowledge water belongs to no one, and certain sovereign states are not willing to recall ancient equitable principles upon which water distribution was historically based. The governments of the United States and Mexico have nonetheless rather remarkably agreed protection of groundwater is now imperative. The thorny legal dilemma of groundwater under the Plan must be resolved by adopting an appropriate treaty. The Bellagio Draft merits, at a minimum, serious consideration as the basis of negotiation between the two nations.


St. Mary's University School of Law