WATER LEGISLATION IN MEXICO

Deputy Direction-General for Water use Administration
National Water Comission – Mexico

 

WATER AVAILABILITY AND USES

The 777 mm mean annual precipitation which fall over two million sq km of the country’s territory produce 450 cu km of renewable surface and groundwater, which should be enough to satisfy the needs of 93 million Mexicans. The equivalent per capita mean annual available water of 5,000 cu m is well above international scarcity standards. However, its uneven space and time distribution, along with waste and pollution, is making water with suitable quality for specific uses an increasingly scarce resource. This scarcity explains the multiple conflicts which occur all over the country, specially in dry regions, among uses, users, states and regions.

Almost 300 thousand users withdraw an estimated annual volume of 209 cu km of national waters in the country. Examples of users of national waters are:

Irrigation modules which have been transferred to users organizations. Each one covers on average 5,000 ha (individual users are clients of the module’s users organization).

Public or private water utilities (domestic, industrial or other individual users connected to the municipal distribution network are clients of the utility).

Individual self-supplied agriculture or livestock users, industries, services, hydro and thermal power plants, aquaculture, recreational users, or others who have their own intake or well.

Users who utilize national rivers, reservoirs groundwater aquifers, soil, lakes or oceans to dispose wastewater.

 

*na = non applicable

Table 1. Water uses

By 1992, most users didn´t have a legal concession to abstract national waters or to dispose wastewater. Given the conflicts caused by water scarcity in most of the country’s territory, it is mandatory to regularize users in order to provide them with legal certainty and to have a reliable data base for water resources planning and management.

INTERNATIONAL RECOMMENDATIONS

During the last twenty years, the participants in several international meetings on water and environment have reached consensus on the fact that water scarcity is aggravated by waste and pollution. Every day less water with the required quality is available for its different uses. This threatens severely four vital aspects of human survival:

Food production.

Human health.

Ecosystem equilibrium.

Social, economic and political stability.

The main recommendations from those meetings can be grouped as five principles:

Fresh water is a finite and vulnerable resource, essential to sustain human life, ecosystems and socioeconomic development.

A participative approach, involving users, authorities and all stakeholders, is required to achieve a sustainable water resources development.

Water has an economic value for all its competing uses and must be recognized as an economic good. However, water for human consumption must be delivered at affordable prices.

It is required to improve the integrated management of water demand, through economic and regulatory instruments.

Capacity building is mandatory to make operational the above principles.

 

CONSTITUTIONAL AND CONCEPTUAL FRAMEWORK

During millennia, before the Spanish Conquest, the relationship with water of the various indigenous cultures was both religious and practical. The fact that there were several water deities leads to believe that maybe since then water was regarded as a public resource, not as a commodity which could be owned privately. At the same time, the pragmatic realities made it necessary to establish norms in order to define who could use water, how to resolve conflicts among water users and how to cope with floods.

During the 300 years of the Spanish Colonial Period (1521-1821), water belonged to the Crown and a royal grant (merced) was needed to use it. When the Mexican Nation was created, the Act of Independence of 1817 stated that all the belongings of the Spanish State and the Kings passed to be property of the Mexican State. After the Independence and until the Revolution in 1910, several constitutions were issued, but it is the Constitution of 1917 the one which, modified through several amendments during the last 80 years, is now in force. Also, during that period, several laws related to water were issued. The one presently in force was approved by Congress in December 1992. It is important to keep in mind the Constitutional framework both to understand the nature of the present law and to evaluate the feasibility and convenience of amending it.

Table 2 shows the main constitutional articles which make up the framework of the Mexican water (i.e. continental waters) legislation.

 

CHAPTER	ARTICLE
1. On Civil Rights	25. The Mexican State will support the activity of enterprises, subordinated to the public interest and provided productive resources and the environment are conserved. 1. Within the system of democratic planning, the law will set up the basis for the Federal Executive to coordinate actions with the states and to come to agreements with private citizens. 2. The Nation is the original owner of land and water within the Mexican territory. · The Nation has had and has the right to transfer the domain of land and water in order to constitute the private property. · All surface and groundwater, except that which flows through a single property or lies only beneath it, belongs to the Nation. · All groundwater whose use has not been prohibited, ruled or reserved by the Federal Executive, can be used without a concession. · The domain of the Nation upon water is inalienable and imprescriptible. · The only legal way to use national waters is through a concession granted by the Federal Executive. · The Federal Executive has the power to establish and suppress prohibitions to use national waters. · All water concessions granted from 1876 to 1917 which violated the rights of communities, are null. · All contracts celebrated from 1876 to 1917, which monopolized water are subject to revision. 28. The Nation may concede the rendering of public services.
2. On Mexicans	31. One of the duties of Mexicans is to contribute to public expenditures, in the proportional and equitable way established by the laws.
3. On Foreigners
4. On Mexican Citizens
5. On National Sovereignty and Form of Government	41. The state constitutions cannot contravene the Federal Pact.
6. On the Parts of the Federation and National Territory	43 and 44.The Federation is formed by 31 states and one Federal District, which is the capital of the Republic.

 

Table 2. Constitutional Framework

7. On the Legislative Power	73. The Congress has the power to · Impose contributions to finance the national budget, as well as contributions related to the use of water and to public services conceded or directly managed by the Federation. · Issue laws to coordinate actions of the Federal Government, the states and the municipalities, regarding environmental conservation. · Issue all the needed laws to bring into effect all the powers given by this Constitution to the Executive, Legislative and Judicial Powers of the Union.
8. On the Executive Power	80. The President of the United States of Mexico is invested with the Supreme Executive Power of the Union. 89.The President has the power to proclaim and to carry out the laws issued by Congress, providing the administrative means to ensure they are obeyed precisely.
9. On the Judicial Power	103.The courts of the Federation will resolve all controversies due to authority violations of civil rights. 107. When the complain referred to in Art. 103 could jeopardize a community right to use water, every effort must be made to benefit the community and to specify its agrarian rights.
10. On the Responsibilities of Public Servants	109. Any citizen may report illegal acts of public servants to the House of Representatives of the Congress.
11. On the States of the Federation and the Federal District	115. The municipalities, with participation of the states when the laws consider it, will provide public services of water supply and sewerage. 120. The state Governors must publish and enforce the Federal laws.
12. On Labor and Social Security
13. General Considerations	133. This Constitution, the Congress laws which emanate from it and all the agreements in accordance with it, will be the Supreme Law of all the Union. The judges in each state will act accordingly, regardless of any opposing disposition in a state constitution.
14. On Amendments to the Constitution	134. Any amendment requires the vote of two thirds of the Congress, as well as the approval of the majority of the states legislatures.
15. On the inviolability of the Constitution

Table 2. Constitutional Framework …. cont.

 

 

Following international principles 2 and 3, water use management should be based on a well tuned combination of regulatory, economic and participation instruments. The main laws that constitute our water legislation, within this three-instrument conceptual framework, are the National Waters Law (NWL) and the Federal Tax Law (FTL).

 

The National Waters Law and its By Laws.

The objective of the NWL is to contribute to the sustainable development of water resources. It defines the National Water Commission as the sole federal water authority in the country. The Law calls for an integral approach of both quality and quantity of surface and groundwater, within watersheds which are considered to be the ideal geographical units for planning, development and management of water resources.

Some of its main regulatory features are:

Enforcement of water resources planning as the basis for management within watersheds.

Reiteration of the Constitutional principle that water can be used by individuals or legal associations only by means of a concession granted by the Federal Executive through the National Water Commission (NWC), for a period from 5 to 50 years.

Definition of specific regulations for the principal uses (irrigation; water supply, sewerage and wastewater treatment; power generation; and other productive uses).

Criteria to extend abstraction concessions in time and to declare their expiration if a user does not use the volume conceded during three consecutive years. The second rule is included, in order to avoid speculation and monopoly.

Enforcement of efficient water use, with due sanctions to users who ostensibly waste water.

Power of the Federal Executive to limit users rights through regulation of water use, prohibition to use water or establishment of water reserves, for the following reasons of public interest:

Prevent or remediate groundwater overdraft.

Protect or restore an ecosystem.

Preserve sources for water supply or protect them from pollution.

Preserve and control water quality.

Severe water scarcity or drought.

Water pollution prevention and control, through the following obligations of users who dispose wastewater:

Obtain a discharge permit and comply with the specified discharge standards.

Inform the NWC how they comply with standards.

Regulations to manage the use of federal zones, and of sand and gravel from river beds.

Users who do not pay the contributions specified in the Federal Tax Law (FTL) for water abstraction or wastewater disposal are subjet to cancellation of their concessions and permits.

Flood control regulations:

Coordination with state and municipal governments to build infrastructure and establish non-structural control measures.

Preventive measures, such as forecast and warning systems, as well as dam operation rules.

All abstraction concessions, federal zones occupation, discharge permits and water rights trades must be recorded in the Water Right Public Register (WRPR), in order to provide users with legal certainty.

Role of the NWC as mediator or arbiter in resolving users conflict.

Sanctions to users for not complying with the NWL or its by-laws. Users have the right to claim disagreement against NWC resolutions and use administrative resources, before resorting to the judicial power.

Transition measures so that users who have documents other than concessions and permits or are de facto users, can regularize their legal situation.

The economic instruments provided in the NWL are:

User obligation to pay the contributions established by the FTL, regarding water abstraction, wastewater disposal, use of federal zones and use of national sand and gravel as building materials. Also, concessionaires of hydraulic infrastructure or delivery of water services, must pay certain contribution.

Tradability of water rights (including abstraction concessions and discharge permits), to promote an economically more efficient water allocation.

The participation instruments considered by the NWL are:

Establishment of watershed councils, as coordination and agreement units of federal, state and municipal authorities, as well as water users and all stakeholders. Their main tasks are to participate in planning and development of water resources, as well as in management particularly to cope with scarcity and pollution problems.

Enforcement of users organizations, mainly through decentralization of irrigation districts and strengthening of water supply utilities.

Enforcement of social participation in design, construction, financing and O&M of hydraulic infrastructure and water services.

 

Federal Tax Law

This law which is updated yearly establishes all contributions which Mexicans must pay. Regarding water, it defines the tariffs for using public goods or for services provides by the State, such as bulk water provided by the NWC to Mexico City.

The FTL complements the definition of the economic instruments by making operational the «user pays» and «polluter pays» principles. That is, the tariff for abstraction water levies depends on the specific use and the relative scarcity of the water source; and the tariffs for wastewater disposal levies depend on the pollutants load and on the use and vulnerability of the receiving body.

Other Components of the Mexican Water Legislation and Related Laws

Besides the Constitution, the NWL and the FTL, the following legal components must be considering in water resources management:

International treaties (The most important one is the international waters treaty signed in 1944 between Mexico and the USA).

Jurisprudence.

Custom.

The following are the most important related laws:

National Goods Law.

Environmental Law.

Water supply and environmental laws issued by the legislature of each state in the Federation.

 

 

INSTITUTIONAL ARRANGEMENTS

Water management in Mexico did not start with NWC, which was created in 1989, but goes back more than a millennium to prehispanic times. Its modern institutional tradition started in 1926 with the National Irrigation Commission, which was succeeded by several institutions, even by a Ministry of Water Resources from 1946 to 1976. Their main objective was to build and operate irrigation and water supply infrastructure. The NWC is the first national institution which was designed to cope with water use management along with water resources development. However, the Law was designed with an advanced approach including most of the water management paradigms which have gained consensus in international meetings and now the Commission organization has to come up to those standards. In fact, it is now recognized that water use management will be probably its more important task in the near future. The following activities are carried on by the NWC in order to fulfill this task:

Grant, modify or cancel concessions of national waters, federal zones, and utilization of gravel and sand from river beds.

Grant, modify or cancel wastewater disposal permits.

Operate the Water Rights Public Register (WRPR).

Monitor water abstractions, quality of wastewater disposals, as well as users compliance with their legal obligations.

Define sanctions when users violate applicable regulations.

Monitor water levies payment and send reports to fiscal authorities.

Reconciliation or arbitration in water users disputes.

In order to carry on these activities, along with its other tasks, the Commission has six sub-directorates and several central units, as well as six regional agencies which group several states each, and 33 state agencies. A further step that is now being taken is the substitution of those regional and state agencies with 13 watershed agencies whose boundaries area municipal limits which are established as close as possible to water divides instead of the present state boundaries.

IMPLEMENTATION EXPERIENCES

Water Abstraction Concessions and Wastewater Disposals Permits Prior to the 1992 Law.

Issuance of water abstraction concessions has of course been influenced by politics and social pressures all along Mexico’s history, as well as limited by lack of information and human, economic and technical resources. Figure 1 shows the main features of such evolution

.

Figure. 1 Water Rights Prior to the 1992 NWL

During the colonial period, water rights were issued according to different legal frameworks which were shaped both by indigenous tradition and by Spanish regulations. Later, water rights responded to Mexico’s first efforts of developing as an independent Nation and to the needs of social justice and construction of incipient irrigation works and water supply infrastructure.

Mexico’s water legislation after 1917 and until 1992, was influenced also by the need to develop the main irrigation districts, as well as to supply fast growing cities and industries with water. As a result, insufficient attention was paid to water use management and the Federal Executive was the only person in the country with authority to issue concessions. In recent years this authority was also invested in the Water Resources Minister and afterwards in the Agriculture and Water Resources Minister and one of their Sub Ministers. In any case, this excessive centralization and other priorities related to infrastructure and social justice, lead to a very limited number of formal concession titles: only 2,000 in 75 years!.

During this period, several thousands of registers and provisional permits without the complete legal, technical and administrative supports of a concession title were issued. On the other hand, during this period, some 500 prohibitions in watersheds and groundwater aquifers were issued in order to control water withdrawals.

The efforts to balance the permanent conflict between development and sustainability has been hindered also from a similar lack of resources to control water pollution. As a result (Figure 2), it was not until 1971 that formal wastewater disposal control started to be enforced and only 2,800 formal permits were issued in 20 years.

 

Figure 2. Discharge Permits Prior to the 1992 NWL

 

Moreover, influenced by foreign practices, 44 different discharge standards were issued for specific industrial and municipal disposals and legislation required to classify receiving bodies according to their assimilative capacity. This latter requirement placed a technical burden impossible to be managed because of lack of reliable data and water quality models which could be suitably calibrated. A further limitation was that the standards were not realistic because they did not allow for gradual compliance according with the real economic and technical possibilities of users. Also, the institutional capacity to enforce those standards was not taken into account.

Abstractions and Disposals Regularization from 1993 to 1996

The NWL was passed by Congress in December 1992 and its by-laws were issued by the Federal Executive in January 1994. The National Water Commission was thus only three years old when the law was approved and five when the by-laws were issued. The first implementation step regarding water use management, was to decentralize water abstraction concessions and wastewater disposal permits to the Sub-director General for Water Use Management, the six regional managers and the 32 state managers. Also, they were all invested with full authority to look after the rest of the water use management functions in their geographic jurisdiction. They were given powers according to water scarcity, volume of the abstraction or of disposal volumes requested by users and third party effects. That is, state managers deal with requests of minor volumes in zones with relatively abundant water, which do not affect other states. Regional managers have authority in dryer zones and on issues that affect more than one state and involve greater volumes; and the Sub-director General deals with even larger volumes in the driest zones, issues which affect more than one region, and with international waters.

By June 1994 it was necessary to design simpler procedures and to exempt users from the payment of titling and registering services, as well as to forgive sanctions to water supply utilities for using water without concession titles (Figure 3). As a result, by December 31, 1997, 115.969 concession titles were registered in the WRPR.

 

Figure 3. Concession Titles for National Waters Abstraction Registered in WRPR

 

The present administration recognized the priority of regularizing all water abstractions and wastewater disposals by issuing concessions and permits, so the Federal Executive issued three decrees (for agriculture and livestock, industries and services, and water supply utilities) on October 1995, which further simplified procedures; partially or totally condoned levies debts; didn’t apply sanctions for abstracting water without concession title and disposing wastewater without permits; and exempted certain service payments. More benefits were given to agriculture, livestock, aquaculture, water supply users, and micro enterprises than to large enterprises. Moreover, the latter received more benefits if they adhered promptly to the presidential decrees. The result was that after the one year period during which the decrees were in effect, 238,941 of the estimated universe of 300,000, had adhered to them. The capacity of the NWC was not enough to evaluate all those requests and only 50,321 titles were issued. Nevertheless, considering the titles issued prior to the decrees, the WRPR has now 115,969 concession titles. This means 10,000 titles per year as compared with 27 per year during the period from 1917 to 1992, and it also means that with 13% of the estimated users being registered, 71% of the total estimated withdrawal is now controlled.

It is interesting to observe the duration composition of the titles which have been issued. According to the NWL, they can be issued for periods from 5 to 50 years and users may ask for renewal five years before their titles expire. Regional and state managers were instructed to issue shorter periods when in doubt of water availability or where there was evidence of a negative hydrological balance. Figure 4 shows that taking a total of 28,578 titles, 32% were issued for 10 years and only 9% for 50 years. Most of the titles with 50 years duration correspond to non-consumptive use in hydroelectric plants and to water supply utilities. This analysis will help in designing communication programs for users to be aware of their expiration dates, and in monitoring programs to cancel those titles which are not renewed on time.

Figure 4. Duration of National Waters Concessions

Taking into account the relative success of the first decrees, the Federal Executive issued three new ones, based on even simpler procedures and, more important, on a different approach which relies on trusting the user and limiting the discretionality of the water authority. Table 3 compares both sets of decrees. In the two cases only users who used water or disposed wastewater prior to October 15, 1995 may adhere to the decrees. Users who, prior to that date, were legally using water, either because they had their formal concessions and permits or some other authorization recognized by the Commission, will be given preference in federal programs. For instance, financial support to make more efficient use of water or when the times comes to reduce abstraction volumes in a watershed in order to balance withdrawals with availability.

Table 3. Presidential Decrees

In the first set of decrees, a user was considered to be regularized only after obtaining his title from the Commission. Now it is enough to comply with the NWC requirements for a user to be considered to be administratively regularized and hence to benefit from the decrees. Fiscal regularization means that a user must pay the debts which are not condoned and start paying water levies since January 1995. According to the first decrees, users had to demonstrate they were effectively using the volumes they claimed, and it was up to NWC discretion, taking into account water availability and possible negative third party or environmental effects, to define the granted volume and the duration of the concession.

The new decrees state that in all cases NWC must issue concessions for 10 years and for the volume which a user claims, under oath of telling the truth, either to be using or to need for his installed capacity. This means that instead of having to evaluate each single request, NWC will have to implement the capacity to verify the truthfulness of users claims only in a statistically representative sample. Of course, users who do not declare truthfully may be imposed penal sanctions and their abstractions could be canceled.

With respect to waste water disposal under the first decrees, users had to obtain approval from the Commission for their treatment plants construction programs. Now, it is enough for them to present their programs which are not limited to «end of the pipe» solutions, but they can also propose to improve their production process in order to reduce pollution. Similarly to the case of water abstraction, NWC will monitor the progress in wastewater quality improvements programs and users will not get the benefits of the decrees if they do not progress according to their programs.

It is expected that the implementation of the decrees will result, by the end of 1998, in the regularization of most of water abstractions and wastewater disposals. The price that will be paid is that by then many watersheds in dry regions will probably be over-concessioned. But one has to recognize that nowadays those watersheds are in fact overexploited in the case of groundwater, and that most surface water users suffer from lack of reliability because of variability of runoff. The ten year period for the concessions will allow for councils, with due representation of water users, to be operational in watersheds all over the country. It will then be feasible to establish water use regulations and programs to reduce water abstractions with the consensus of users, within the participation framework that will be provided by watershed councils.

With regards to wastewater disposals, since the approval of the NWL and also with help of the decrees, almost 3,916 new permits have been issued under the standards in force. But the most important recent achievement is the approval of a single new standard for all industrial and municipal wastewater disposals, which substitutes the former 44 standards. Moreover, Congress has approved reforms to the FTL regarding wastewater disposal permits consistent with the new standard.

Figure 5. New Wastewater Disposal Standard

Users will have to comply only with the limits established for those pollutants they produce. The new standard takes into account both the use of the receiving body water as well as its vulnerability. It incorporates gradualism (Figure 5), by stating that major polluters must comply on the year 2000, intermediate ones in 2005 and minor ones in 2010. However, existing plants must continue operating according to their original discharge permits or the new standards, depending on the user’s will. In case the quality of their discharge exceeds the new standard, they can apply for a bonus. Polluters who exceed in more than five times the limits for any of the parameters of the new standard, have to present immediately a program to improve their wastewater quality. The rest of them, have to present a similar program several years before their target compliance date. If they do, they will be exempted from paying discharge levies during the construction period given they progress according to their programs.

The design of the new standard is such that it is feasible that users comply with it and that the authority will be able to enforce it. Once the watershed councils are operating, it will be up to the users to agree on quality standards for the water bodies within their geographical jurisdiction, and to enforce them in collaboration with NWC.

Water Rights Expiration

The spirit of the NWL regarding expiration of water rights related to volumes not used during three years is to make them available for others users who could benefit from them and to prevent monopolic practices. However, in practice users may be affected when they have not used their water rights for reasons alien to them, or when they have made investments in efficient use technologies in order to save water and increase their production or expand their installed capacity.

The Technical Board of the NWC has approved the Commission to issue guidelines in order that those users who prove they have not used their water rights because of the reasons stated above, can be exempted from expiration of their water rights.

Water Rights Trade

According to the NWL, water rights may be traded by users and reported to the WRPR, in case that only the user changes as a result of the transaction. This means that the buyer will use the same volume of water for the same purpose, withdrawing it from the same point as the original user. All other cases, except water rights trades within the same irrigation district or in areas where the Director General approves a simplified procedure, must be approved by the NWC in order to prevent third party or ecological negative effects.

So far, 510 trades have been registered in the WRPR for a total yearly volume of 143.27 million cu m, mainly in dry regions or areas with tight water balances. The largest number (222 transfers, 47 million cu m ) has been within irrigation users and the largest volume (61 million cu m , 40 transfers) has been from industry to industry.

Water markets are considered to be a useful tool to allocate water more efficiently and to alleviate groundwater overdraft. However, presently in Mexico the following problems must be solved before water markets can be fully enforced:

The water abstractions regularization process must be completed in a watershed and hydrological balances computed as a prerequisite to water markets, in order that buyers are certain of the water rights they are buying.

The NWL and its by laws establish that in areas where abstractions have been prohibited by the Federal Executive, water rights must be sold along with land. The Technical Board of the NWC has approved the Commission to issue guidelines in order to use the figure of usufruct instead of sale, which could allow water trades to be made without selling the related land.

 

Management of Federal Zones and Building Materials

Legislation considered federal zones as national property since 1870 and since 1934 the state started managing national building materials in river beds. Before the 1992 NWL, several thousands permits to use federal zones, and sand and gravel as building materials, had been issued. Since 1992, more than 20,000 concessions to use 7,500 ha for agriculture and 2,400 ha for livestock and gardening have been granted. Also, 1,271 concessions to use sand and gravel have been granted. However, the following problems make it difficult to manage these public goods:

Field work to delimit federal zones is costly and time consuming.

Most federal zones and river beds in urban areas are illegally occupied by permanent constructions, which create flooding risks and ecological problems.

Users are not aware of their flooding risks.

Withdrawal of sand and gravel without technical support disrupt the environment and modify runoff regimes.

These problems make law enforcement in federal zones and river beds an impossible task for the NWC. Therefore, a participatory scheme of state and local authorities, as well as stakeholders within the watershed councils, is needed.

Water Levies Collection from 1989 to 1997

The Federal Tax Law considers water abstraction levies according to the kind of water use and to the relative scarcity of the water source, as well as charges for titling and other services, and for irrigation and drinking water provided by the NWC itself (Figure 6). The collected amount has increased yearly in current pesos, with exception of 1994, because in that year the Federal Power Commission obtained an exemption for levies related to hydropower water abstractions and Mexico City didn’t pay on time its water supply charges. The yearly income has represented a substantial percentage of the Commission annual expenditures budget. In 1993 it reached 92%. However, in real terms, it has decreased due to inflation. It is interesting to mention that periodic increases in water abstraction levies have induced water savings in industry and a more rational geographical allocation of water demanding activities. Also, the threat to pay wastewater discharge levies to users who don’t comply with standards, has induced construction of many treatment plants.

The income distribution shown for 1996 is representative for the other years. From a purely economic standpoint, it could be argued that the structure of water levies induce cross subsidies from industry and services to water supply whose tariffs are substantially less, and to irrigation which is fully exempted from this contribution even though it is responsible for 80% of the consumptive use in the country. A future gradual decrease in these cross subsidies will have to take into account social and political considerations as well as the need to fund with federal money the various programs of water resource development and management.

The NWC income distribution also shows a very low participation of levies collection from wastewater disposal. There are three reasons. One is that industries and municipalities are exempted while they build their treatment plants. Second, the financial weakness of most water supply utilities. And third, insufficient resources for full law enforcement.

FURTHER IMPROVEMENTS.

A substantial advance in the regularization process was achieved during the last four years, but improvements are still needed regarding the legal framework, information systems, enforcement tools and capacity building. The challenge is to carry on this improvements, without slowing down day to day operation.

Legal Framework

A detailed study is being carried on in order to modify the NWL by-laws, in order to remove the main following restrictions (some of them will be partially removed with the guidelines for excepting the expiration of some water rights and for facilitating water markets, which were previously described).

Users, specially those from the rural sector, have difficulties to fulfill cumbersome requirements to obtain their concessions. Procedures must be simplified, recognizing socioeconomic and hydrologic regional differences.

Expiration of water rights without consideration of the reasons which stop water use.

Water rights market transactions are limited by present regulations.

Social participation through the watershed councils needs a more precise definition in order to increase stakeholders participation. Also, the present regulations may hinder NWC interventions in emergency situations which require immediate action.

 

Information Systems

So far, four main independent systems have been implemented in order to monitor the attention given to users requests, issue concession titles, operate the WRPR, and register and control water levies payments. At least one more system must be developed to follow-up on field monitoring of water abstractions and wastewater disposals. Because of the enormous amount of legal and de facto users, the complex procedures involved, and the need to link central offices with six regional agencies (which soon will become 13) and at least one user-oriented office in each of the 32 states, the following actions have been started:

Improvement of existing systems, in order to improve day-to-day operation.

Gradual modernization including e-mail and full integration of the independent systems, without jeopardizing daily operation.

These actions are being on considering the best available technology, but carefully phasing the process with the required institutional capacity building, and giving priority to the following needs:

Information required to support administrative and fiscal law enforcement.

Information required by decision makers at all levels and geographic locations.

 

Law Enforcement

Taking into account the 300,000 users who are expected to be regularized during the following 20 months, sound statistical sampling must be carried on in order to verify that users are in fact complying with:

Abstraction volumes and duration stated in their concession titles.

Parameters limits stated in their wastewater disposal permits.

Payment of their self-declared levies.

In particular, in the very near future, NWC will have to verify, also through ad-hoc samples, that, while adhering to the presidential decrees, users in fact declare truthfully the water volumes they are using or their installed capacity, as well as their rate of progress in their proposed programs to improve the quality of their wastewater discharges.

Also, it will be necessary to use the best available technology (direct, remote sensing and real time, among others), for flow measurement and water quality monitoring, but again, phasing it properly with institutional capacity building.

Capacity Building

This is probably the most important future challenge that must be properly faced if the water use management process is to be implemented in a successful and sustainable manner. The following are the main aspects of capacity building that are being implemented or will be developed in the near future:

Regarding institutional development, the legal framework will be improved to overcome some drawbacks that have been identified while implementing laws and by-laws during the past four years. A better geographical organization will be soon achieved by substituting six state-oriented regional agencies with 13 watershed agencies. Also, several operative functions have been transferred to users organizations, such as O&M of most of the irrigation districts in the country; as well as to state governments, as part of a national federalization process. This last action will speed up as state governments establish water offices to take care of many of the functions now carried on by NWC. However, the Commission will retain the functions related to water use management which, according to the Constitution, are federal responsibility in order to assure that water is used for the benefit of all Mexicans, specially for future generations.

Developmental of human resources and ad-hoc technology is not an easy task, mainly because water use management has not caught yet the interest of universities and research institutions. There are many mathematical, economics, and computer models that are indeed useful for parts of the processes involved in water allocation, or in simulation of the behavior of complex surface and groundwater systems. But very little has been developed and written on the practical tools that are needed to solve, with an interdisciplinary approach, complex water use management problems that deal with social, anthropological, political, technical, historical, legal, economic, administrative and fiscal aspects. It is urgent to develop a water use management discipline and to catch the interest of academia in this task.

Nevertheless, we cannot wait. On the job training of specialists must continue until a formal discipline is developed, procedures must be re-engineered and user-oriented total quality managerial techniques must be implemented at central, regional and state offices. There is also the need to develop a civil service career and adequate retirement programs.

Water use management would be an impossible task without social participation. The implementation of watershed councils will be enforced by fora with water users, as well as mass communication and formal education to rise consciousness on water problems.

Finally, it must be recognized that capacity building is needed not only for NWC, but for the whole water sector. In fact, as more operative functions are transferred, as water rights market becomes a more important tool to allocate water more rationally, and as water conflicts among users increase, there will be more need to improve the capacity to deal with water problems of users organizations, water utilities, consulting firms, universities and research institutions, and even of the legislative and judicial powers and private lawyers as well.

Implementation Program

The time frame to face the challenges which have been delineated cannot be measured in months, but in decades. Figure 7 shows a program for the next 15 years, considering that 2010 is the target date for minor polluters to comply with the new waste water disposal standard. After most water abstractions and wastewater disposals are regularized, watershed councils implemented and the legal framework as well as the water availability and quality database substantially improved, it will be feasible to implement, with users participation, regulations for water allocation and use as well as pollution control. It is estimated that this process might take more than ten years, but it is considered that only with the participation of water users and polluters it will be possible to recover hydrological balance in overdrafted aquifers, establish rational rights that take variability of surface water into account, and set up water quality standards for lakes and rivers which may be feasible to reach. In other words, it is the only way to set the basis for water resources sustainable development.

Figure 7. A 15 Years Program

CONCLUSIONS

The Mexican experience on water use management during the last four years shows the need for a trial and error approach for water legislation implementation. Practice has provided plenty of elements to feedback the legal framework. The process has been first to try to solve implementation or enforcement problems modifying procedures which are approved by the Director General of the NWC. If this proves insufficient, propose changes to the NWL by-laws, which are approved by the Federal Executive. Only after trying these two solutions, propose changes to the law itself. But also political support at the highest level has been very important. Without the Presidential Decrees, the regularization process would be impossible.

Legal regularization of all water abstractions and wastewater disposals, as well as a better knowledge of water availability, along with social participation are necessary to achieve water sustainability from the ecological standpoint. However, permanent capacity building of the whole water sector is mandatory to achieve social and institutional sustainability.

The best available metering, computing, and telecommunications technology should be utilized to support water use management, but again capacity building plays a key role, in order that the technological instruments are properly maintained and fully utilized.

Finally, the most important lesson is that laws, by-laws and procedures should be designed and permanently reviewed in such a manner that users can comply with them and the authority is able to enforce them. In fact, if the law and its by-laws were to be drafted now, the following recommendations should be seriously considered:

Recognize regional socioeconomic and hydrological differences. A law that assumes complete uniformity though all the territory imposes unnecessary beaurancratic burdens both on users and on the authority.

Give serious thought to implementation feasibility.

A realistic transition period should be considered since the day the law is issued in order to give illegal users enough time to comply with the law. In other words, the approach of the authority should be to work with users to help them to regularize their situation.

Gradual implementation goals are desirable, either starting with some groups of users or in certain critical watersheds. This would give the organization time to learn and build up its capacity and at the same time achieve useful results soon after the law is issued.

Simultaneously and in close coordination with the drafting group, a second group, preferably with participation of users, should develop an implementation model, in order to simulate the process in advance anticipating as many problems and their solution as possible.