Water matter: Regulations are being revisited to ensure comprehensive public policy for a key natural resource

 

Water is a key resource in Mexico, which makes its legal management something of a national security interest. Article 27 of the constitution establishes the country’s water ownership regime and sets out a number of legal aspects.

The National Waters Law of 1992 gets its denomination from constitutional Article 27, which regulates the waters that are deemed to be national property. This was an inclusive law in which experts, users, civil organisations, public servants and legislators participated in crafting. The rule was published in the Federal Official Gazette on December 1, 1992, and became effective on December 2, 1992. It is regulated by the fifth and sixth paragraphs of Article 27 of the constitution.

Article 27

Certain demarcations classify certain areas of water as resources of national property. These include, but are not limited to, the waters of Mexico’s territorial seas as established by international law; the interior marine waters; those of the lagoons and estuaries that are permanently linked to the sea; those that are extracted from the mines; as well as the waters of the subsoil.

In the same Article 27, waters of state jurisdiction are defined as those “located in two or more properties”. According to this article, “the use of these waters will be considered of public utility, and will be subject to the ruling dictated by the states”.

The overarching aim of the law was to revitalise the state’s participation in water management, as well as expand the participation of the social and private sectors to also hold them responsible for promoting, maintaining and supporting the preservation and quality of water, as well as that of the entire infrastructure.

Thus, the main objectives of the National Waters Law of 1992 were:

  1. The integral management of water, with a greater participation of users;
  2. Consolidation of a single federal authority and hydraulic programming for water management in both quantity and quality;
  3. Legal security in the use of water, which would allow individuals to plan their activities adequately in the medium and long term;
  4. The efficient and rational use of water for the modernisation of agricultural methods; and
  5. The greater participation of individuals in the construction and operation of infrastructure and hydraulic services.

Management

The National Waters Law, through its provisions, aims to create a new culture of water management so that society takes care of its quantity and its quality, and values it as a vital and scarce resource. For this purpose, the law aimed to include a number of clear implications regarding its usage:

  • Avoiding ostensible waste;
  • Controlling the discharge of wastewater both in quantity and quality, ensuring that this activity does not affect public health or ecosystems;
  • Promoting citizen awareness to avoid the use of unnecessary volumes of water;
  • Caring for the quantity and quality of surface and subsoil waters; and respecting the hydrological cycle;
  • Verifying that the water supplied for human consumption complies with the corresponding quality standards;
  • Avoiding overexploitation of water, safeguarded through control mechanisms;
  • Encouraging the participation of individuals, and creating co-responsibility to maintain, rehabilitate and conserve the hydraulic infrastructure that transports the water; and
  • Regularly verifying compliance with the law through inspections and surveys. On April 30, 2004 an additional law under the decree reforming, adding and repealing various provisions of the National Waters Law came into force. It reformed 113 articles, added 65 and repealed two. It also added 13 transitory articles and a new chapter called the Financial System of Water.

This more recent law can be seen as regressive, as it contravenes the national constitution and also resulted in a setback in the way national waters were administered. The water authority was dispersed, and instead of decentralising power to allow for the greater participation of the states and municipalities, it granted the central authorities more institutional power. The main issues from the 2004 amendments to the National Waters Law can be summarised in three aspects:

  • Legal order: Lack of legislative coherence with signs of unconstitutionality. The rule affects other water users’ rights, causes legal uncertainty, weakens the rule of law and discourages private investment.
  • Structural order: Could result in greater budgetary expenditure without any benefit for the users or for the authority, causes greater centralisation instead of decentralisation, increases discretion and disrupts coordinated administrative organisation.
  • Social order: It causes discomfort among water users, increases confusion due to the lack of coordinated water policies, discourages the formation of a new water culture, encourages the disobedience of legal systems; and creates confusion among users about the institutional importance of various actors.

New Policy

It is important that Mexico has a longterm vision for its water-usage laws, and ensures that public policy is comprehensive and adapts to the reality of the next two decades. This public policy must address, among other things, the geography and hydrology of Mexico, taking into account the distribution of its population and economic activities. In addition, it must address socio-environmental factors such as international basins; deserts and tropical zones; floods and droughts; pollution; irrigation; water services in urban areas; cities and rural communities; inter-state basins; aquifers and overexploited lakes; and equity in access to resources and services.

This has to involve state and municipal governments, stakeholders from a variety of sectors, national and international experts, academics, technicians and all citizens committed to Mexico.

The array of issues in Mexico needs to be addressed by tackling the following challenges:

  • The country needs a public policy that has a strategic vision of the state’s role in water management with more integrated management.
  • The administrative organisation needs to be more conscious of the pressures on the country’s water system.
  • The current legislation from 2004 must be updated to meet the needs of the 2020s and beyond.

Additional Requirements

For all these reasons, Mexico requires a public water policy with a state vision that spans at least 25 years. Furthermore, it should address the needs of the population, the infrastructure required, the necessary planning, and the legal and financial mechanisms necessary for effective governance.

It also requires the preparation of national, regional and state programmes to meet water needs for human consumption, food production, economic development and employment generation in order to achieve sustainable development. In addition, realtime information is important, so the government should improve its measurement of water resources. It is crucial to design a new financial system that promotes the rational use of water. Sustainable user participation will contribute to the maintenance and construction of supporting infrastructure.

It is crucial to formulate a national programme for coordination at the three levels of government – municipal, state and federal – in order to ensure the sustainable construction, operation and financing of treatment plants. The country also requires a federal regulatory entity that defines tariffs, measures usage and supports the rights of users. In addition, it needs to have the capacity to handle disputes between different users.

There is a need to re-engineer the country’s water operating organisations so that all Mexicans can enjoy clean drinking water, sewage facilities and the proper treatment and disposal of wastewater.

Lastly, the authorities need to redesign and strengthen the National Water Commission as the single water authority, free from political influence.

Above all, the national waters law should be clear, simple and concise, with few articles or complications. There should also be a review of the standards applied to the law and working groups to engage users with governing entities. Any system of national water coordination needs to involve the three levels of government as well as the participation of all water users. This should generate a more environmentally and socially friendly water-usage culture.

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The Report: Mexico 2018

Legal Framework chapter from The Report: Mexico 2018

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