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The crisis of potable water in Mexico City: institutional factors and water property rights as conditions for creating adequate metropolitan water governance
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The crisis of potable water in Mexico City: institutional factors and water property rights as conditions for creating adequate metropolitan water governance
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The Crisis of Potable Water in Mexico City: Institutional Factors and Water Property Rights as
Conditions for Creating Adequate Metropolitan Water Governance
By: Homero Clemente Mendoza
A Dissertation
Presented to the
Faculty of The Sol Price School of Public Policy
University Of Southern California
In Partial Fulfillment of the Requirements for the Degree
Doctor of Policy, Planning, and Development
Committee Members:
Tridib Banerjee Ph.D. Chair
Daniel Mazmanian, Ph.D.
Roberto Eibenschutz, M.A.
May 2016
ii
Abstract
This dissertation analyzes the lack of provision of potable water to Mexico City. While focusing
on the problem of managing water as a collective good, and by using institutional and property rights
analyses, relevant actors and processes allowing the creation of rules for adequate metropolitan water
management are identified, as well as factors that hamper controlling apportionment of regional water
sources and promoting adequate distribution of water at a metropolitan level. The analyses performed
help to provide a better understanding of the problems inherent in managing water as a collective good
when several actors have decision power over a common territory and while the management of resources
is not constrained to the political or administrative boundaries of their users. The dissertation also helps to
understand how institutional factors, in the case of Mexico City, have promoted policies and processes
that impede the creation of adequate metropolitan water administration.
Using data from governmental water agencies, provided by special request, the analysis shows
that the crisis of water in Mexico City is a euphemism to depict a set of rules, processes, and policies
amongst orders of government that misconceived a city-water relationship built over a period of five
centuries of continuing effort. The conflicting views about controlling water have created weak water
property rights that fail to create effective collective-choice arrangements to control water as a common
good. In order to enable effective and adequate metropolitan water administration, current water property
rights must be provided with moral force. The current lack of equality in water distribution demands clear
rules for regional water apportionment and metropolitan distribution. Instead of the current discretional
power and lack of accountability, control of the controller is needed. Moreover, the lack of metropolitan
administration of water requires regional forums for collective decision-making and credible enforcement
of the regulations.
iii
Acknowledgments
I am grateful to my committee members who shared their expertise; their contributions were not
only useful, but they made this journey livable and enjoyable. To professor Mazmanian for his pertinent
comments that enhanced the final version of this dissertation; professor Eibenschutz, an earlier supporter
of this intellectual journey, always willing to share his expertise as planner, scholar, and policy maker,
and very kind while connecting me with his professional and social network to make sure doors were
open when needed; and to professor Banerjee, my advisor, for his valuable suggestions and support that
enriched the experience of writing the dissertation.
Reaching information needed for this dissertation was possible thanks to the intervention of
committed public officials. They shared my believe that changing anachronistic policies to fulfill current
demands of water is a necessary step toward creating adequate metropolitan water management, without
their intervention, the analysis performed would not have been possible, I am indebted to all of them.
I am also very grateful to doctor Russell Kurtz, a singular scientist, for all those long talks with
anecdotes and multicultural data that enlivened the experience of writing the dissertation. His valuable
comments were key component of this dissertation.
I would like to acknowledge the generous support received from the Mexican National Council
for Science and Technology (CONACYT), the support provided was essential for the completion of this
dissertation.
A man without a family is nobody; with it, he is somebody and his life is easier and merrier.
Thanks to my family, without whom all of the above would not happened.
iv
Table of Contents
Abstract ........................................................................................................................................... ii Acknowledgments ......................................................................................................................... iii List of Tables ................................................................................................................................. vi List of Figures ............................................................................................................................... vii Acronyms ..................................................................................................................................... viii Introduction ................................................................................................................................... ix Chapter 1: Water Property Rights ............................................................................................... 1 1.1 The Use of Common Goods ................................................................................................... 1 1.2 Government Participation and the Commons ......................................................................... 4 1.3 Property Rights ....................................................................................................................... 9 1.3.1 Legal and Economic Property Rights ....................................................................... 15 1.4 Water Property Rights .......................................................................................................... 17 1.4.1 Water Property Rights D o ctrines .............................................................................. 18 1.4.2 Groundwater Property Rights ................................................................................... 22 1.4.3 Islamic Law on Water ............................................................................................... 24 1.5 The Public Trust Doctrine and Water Administration .......................................................... 25 1.5.1 Water as a Human Right ........................................................................................... 27 1.5.2 Water as a Public and Private Good ........................................................................ 32 Chapter 2: Provision of Water to Metropolitan Areas ............................................................. 35 2.1 Components of Water System s ............................................................................................. 36 2.1.1 Modern water systems ............................................................................................... 38 2.2 Metropolitan Provision of Water .......................................................................................... 40 2.2.1 The Predicament of Metropolitan Boundaries ......................................................... 44 2.2.2 Multijurisdictionality, Cooperation, and Coordination ........................................... 46 Chapter 3: Governmental Decision Making in Mexico ............................................................ 49 3.1 The Decision Making Process .............................................................................................. 49 3.2 The Legislative Power .......................................................................................................... 49 3.2.1 Constituency .............................................................................................................. 50 3.2.2 Attributes and privileges ........................................................................................... 51 3.2.3 Constitutional Amendments ...................................................................................... 51 3.2.4 The Permanent Committee ........................................................................................ 52 3.3 The Generic Executive Power .............................................................................................. 54 3.4 The judicial branch ............................................................................................................... 56 3.4.1 Protection Trial ......................................................................................................... 58 3.5 The States ............................................................................................................................. 59 3.5.1 The Governors .......................................................................................................... 60 3.6 The Municipalities ................................................................................................................ 61 Chapter 4: Mexico City in Context ............................................................................................ 65 4.1 A City on a Lake ................................................................................................................... 65 4.1.1 The Aztecs and a Lacustrine System ......................................................................... 65 4.1.2 The Spaniards’ approach .......................................................................................... 70
v
4.1.3 The contemporary approach ..................................................................................... 72 4.1.4 The modern approach in potable water .................................................................... 74 4.2 The Provision of Water to MC ............................................................................................. 75 4.2.1 The Wells of Immediate Action (PAI) ....................................................................... 75 4.2.2 The Lerma System ..................................................................................................... 76 4.2.3 The Cutzamala System .............................................................................................. 78 4.3 Water Property Rights in the Basin ...................................................................................... 79 4.3.1 Colonial Era ............................................................................................................. 80 4.3.2 Contemporary WPR .................................................................................................. 86 4.3.3 Contemporary Mexico City ....................................................................................... 99 4.4 The Current Potable Water System in MC ........................................................................... 99 4.5 The Contemporary Crisis of Water .................................................................................... 100 4.5.1 Quality of water ...................................................................................................... 102 4.5.2 Price of water .......................................................................................................... 105 Chapter 5: Legal and Economic Control of Water ................................................................. 108 5.1 Institutions for Water Provision to MC .............................................................................. 108 5.2 Water Storage in the Cutzamala System ............................................................................ 109 5.3 Water Availability in the Cutzamala Dams ........................................................................ 115 5.3.1 El Bosque Dam ....................................................................................................... 115 5.3.2 Villa Victoria Dam .................................................................................................. 118 5.3.3 Valle de Bravo Dam ................................................................................................ 120 5.4 The Operational Rules of the Cutzamala System ............................................................... 123 5.4.1 Bases for Water Apportionment .............................................................................. 125 5.4.2 A Change in Water Control .................................................................................... 134 5.5 Synthesis of Legal Water Apportionment .......................................................................... 137 5.6 The Economic and Legal Appropriation in the Cutzamala System ................................... 139 5.7 Water Apportionment in the Lerma System ....................................................................... 153 5.7.1 The Agreement of 1966 ........................................................................................... 155 5.7.2 First additional Agreement, 1968 ........................................................................... 158 5.7.3 Second Additional Agreement, 1969 ....................................................................... 159 5.8 Synthesis of Legal Water Apportionment .......................................................................... 167 5.9 Economic and Legal Appropriation of Water .................................................................... 170 5.9.1 The appropriation of groundwater ......................................................................... 177 5.9.2 The Control of Wells ............................................................................................... 178 5.9.3 What the Agreements Left Out ................................................................................ 181 Chapter 6: Conclusions and Recommendations ..................................................................... 185 6.1 Conclusions ........................................................................................................................ 185 6.2 Recommendations .............................................................................................................. 193 6.2.1 On Legitimacy ......................................................................................................... 193 6.2.2 On Equality ............................................................................................................. 198 6.2.3 On Accountability ................................................................................................... 201 6.2.4 On Metropolitan Administration of Water .............................................................. 205 6.2.5 For Future Research ............................................................................................... 206 Bibliography ............................................................................................................................... 209
vi
List of Tables
Table 1 Pubic and Private goods ................................................................................................................. 33 Table 2 Water Related Penalty System in Use ........................................................................................... 97 Table 3 Provision for Water to the FD and the State of Mexico. ............................................................. 102 Table 4 Main Dams in Region XIII .......................................................................................................... 111 Table 5 Water storage in El Bosque Dam (2004-2014) ............................................................................ 117 Table 6 Water Storage in Villa Victoria Dam (2004-2014) ...................................................................... 119 Table 7 Water Storage in Valle de Bravo Dam (2004-2014). .................................................................. 122 Table 8 Population in the FD and metropolitan municipalities 1970-2010 .............................................. 127 Table 9 Legal Appropriation of Water from the Cutzamala System ........................................................ 131 Table 10 Dams by Type of Administrator ................................................................................................ 133 Table 11 Creation of WPR in the Cutzamala System ............................................................................... 138 Table 12 Legal and Economic WPR in the Cutzamala System 2004-2014 .............................................. 140 Table 13 Legal and Economic WPR in Villa Victoria Dam 2004-2014 .................................................. 143 Table 14 Legal and Economic WPR in Valle de Bravo Dam 2004-2014 ................................................ 143 Table 15 Legal and Economic WPR in El Bosque Dam 2004-2014 ........................................................ 144 Table 16 Legal and Economic WPR in the main dams of Cutzamala System 2004-2014 ....................... 144 Table 17 Water Adjustments in 2010: Reduction of Water OCAVM-CAEM ......................................... 151 Table 18 Payments DF-State of Mexico for Water Appropriation from the Lerma River ....................... 157 Table 19 Creation of WPR for the Lerma System .................................................................................... 169 Table 20 Volumes of Water from the Lerma System 2004-2014 ............................................................. 176 Table 21 Extraction of groundwater in the FD 2004-2014 ....................................................................... 178 Table 22 Penalty Fees Instituted by the MSNL ........................................................................................ 182 Table 23 Main Obstacles for Granting Water as a Human Right ............................................................. 191 Table 24 Main problems and solutions ..................................................................................................... 193
vii
List of Figures
Figure 1 Components of a Modern Water System ...................................................................................... 38 Figure 2 Basic organization of a Mexican municipality ............................................................................. 63 Figure 3 Lacustrine System of Mexico City in the 16
th
Century ................................................................ 69 Figure 4 Water with Government Quality Standards Distributed in the FD ............................................ 104 Figure 5 Cutzamala System ...................................................................................................................... 112 Figure 6 Storage capacity in Main Dams from 1990 to 2013 ................................................................... 114 Figure 7 Water Apportionment based on the Presidential Decree of 1972 .............................................. 126 Figure 8 Apportionment of Water granted by the Decree of 1982 ........................................................... 129 Figure 9 Volumes of Water Provided by PAI and Cutzamala Systems to the FD in 2011 ...................... 135 Figure 10 Water Provision to SACMEX and CAEM from 2004 to 2014 ................................................ 149 Figure 11 Water Provision to the Metropolitan Municipalities ................................................................ 150 Figure 12 Extraction of Water from Lerma System 2004-2014 ............................................................... 170 Figure 13 Flow Rate of Water provision to the State of Mexico 2004-2014 ............................................ 173 Figure 14 Water Distribution From Lerma System .................................................................................. 175
viii
Acronyms
CADAM Water and Sewer Metropolitan Commission
CAEM State of Mexico Water Commission
CONAGUA Water National Commission
FD Federal District
LAN Law of Waters Property of the Nation
LAPN National Waters Property Law
LGVC General Communication Routes Law
MC Mexico City (16 boroughs in the FD and 59 municipalities in the State of Mexico)
MSNL Metrology and Standards National Law
OCAVM Valley of Mexico’s Basin Committee
OMI Daily Official Minimum Income
PAI Wells of Immediate Action
PR Property Rights
SACMEX Mexico City Water System (The FD's water agency)
SARH Farming and Hydraulic Resources Secretary
SRH Water Resources Secretary
UN United Nations
VMWC Valley of Mexico Water Commission
WPR Water Property Rights
ix
Introduction
This dissertation contains analyses that allow the identification of institutional factors hampering
the creation of adequate metropolitan water management, as well as proposals to overcome those
limitations.
Metropolitan water governance refers to the principles of how we govern ourselves and others, as
well as the private and public use of our faculties, to manage water as a common good. The problem of
managing the commons or collective goods has been linked to social organization and has produced large
amounts of management and governance paraphernalia. This model started when materialism and
rationalism assaulted Economic Planning and, as time passed, the collective good became a matter of
three government branches (Healey, 2006). The model later added the precept that the collective good is
imposed as a matter of public administration, to finally, creating the idea that public administration is
businesslike, and therefore should be run under the principles of efficiency and effectiveness. As part of
this model the Establishment has taken for granted the impartiality of institutions, where the legislative
branch creates public policy and bureaucracy implements, leaving no room for discretional power.
Case studies and historical analysis show that reality falls far from the theory. The
implementation of the aforementioned approach has created a model where there is no reasoning and only
obedience is left—a model that flirts with the values promoted for a market society in which the market
becomes God, and everything can be bought and sold: principles and values, people, and cities included
(Foucault, 1998; Cox, 1999; Denhardt, 2000).
The problems of managing the collective good and the irrationality of the market have been
thought to be controlled and managed by the rationality of planning and the principles of good
governance (Healey, 2006; Hertie, 2013) but these approaches present unsolved theoretical and practical
challenges for their implementation.
x
Although the range of understanding in the areas of water and metropolitan governance seems to
be ample, there is agreement among scholars and policy-makers that metropolitan water governance, as
part of the process of governance, is a process in which a diverse range of organized people and
institutions interact and get involved in managing water as a collective good (Foucault, 2008; Healey,
1997; Ostrom, 1990; Stoker, 1998).
Analyses of water governance, aside from the Establishment viewpoint and the hegemonic ideas
of empiricism and rationalism, have governmental intervention and inter-institutional collaboration as
common features. Although there is agreement that the government should intervene, there is no
agreement on the role the government must play or the time of its intervention. The solutions have been
performed on a case-by-case basis, in which contextual, historical, and cultural features are important
parts of the analysis to understand the process of provision of water to metropolitan areas, to understand
how governments have established policies across political boundaries, and how they manage complex
inter-institutional interactions.
A particular problem related to metropolitan water provision is that metropolises are mobile
targets and slippery subjects that escape definition. The problem of defining boundaries is not related to
drawing lines to delimit areas attached to actors; the essential problem is related to the values those
delimitations should promote, and how those values reinforce or hamper the use of a common good,
especially when the common good does not fit the political and administrative boundaries of its users
(Barlow, 1991; Benz, 2006; Hewitt, 1998; Hamilton, 2013; Tomàs, 2012).
This lack of definition of metropolitan boundaries, due to their mobility, presents a problem of
first-order governance in which the definition of the players, their influence, and their inclusion in
processes beyond their boundaries are linked to the problem of defining who does what, when they do it,
and with what resources; thus, defining our collective lives is tied to the need of defining who is in and
who is out, all of which is closely related to the principles of fairness, legitimacy, and democracy—
permanent factors of the current debate on metropolitan water governance (Graham, 2003; Hertie, 2013;
Sancton, 2008; Martin, 1963).
xi
Although literature on water governance focuses on the above principles, the real issue of
metropolitan water governance is the diffusion of power. This issue is not new but demands to be
reexamined because having territories under the control of multiple authorities in which local, state,
national, and even international and multinational institutions—with power to make and impose decisions
in territories that transcend political borders—have become more prevalent. As a result of this, the nature
of the problems and issues the metropolitan provision of water faces cannot be addressed by an individual
local government, but requires multilevel collaboration and coordination, of which creation and
implementation are still uncertain (Hamilton, 2013; Hewitt, 1998; Kuditshini, 2008).
While economists assert that the spontaneous appearance of contracts may suffice to create
effective relations for the purpose of managing common pool resources, and thus for collaboration and
coordination, mainstream political analyses tell us we cannot rule what we do not know, and in the case of
water governance several factors and their interrelation are still unknown. Therefore, the current debates
on water governance are linked not only to institutional intervention, but also to diffusion of power and
the tendencies of metropolitan growth, because water governance refers to solutions that involve
multilevel governance, collective decisions, and spatial organization (Barlow, 1991; Brenner, 2009; Dahl,
1971; Gamson, 1968; Sassen, 2002; Kuditshini, 2008). Within a ruled society, it is also not clear how
those factors interact to promote or impede the creation of adequate metropolitan water administration
that fulfill what the enacted rules mandate.
To help understand how institutional factors can prod or halt the creation of adequate
metropolitan water management, the case of provision of water to Mexico City (MC—understood as the
union of 16 boroughs in the FD and 59 municipalities in the Stated of Mexico) is analyzed. This is a case
study sufficiently specific and, at the same time, with sufficient generality to produce useful lessons with
applicability to various settings. The case also demonstrates the multi-dependency and complexities of
interventions related to water governance in metropolises.
xii
National and international organizations assert that MC suffers from scarcity of fresh water,
which colloquially has been defined as a crisis of water, affecting a city of 21 million people. The crisis is
related to the regional availability of water and its metropolitan distribution.
The crisis of water is so severe that 9.1 million people lack potable water, there are two million
who are provided with potable water once a week, and three million only get a daily supply of potable
water but within restricted hours, often on irregular schedules, and lack water during periods of the day
when the most important family activities are performed. Additionally, the government recognizes that
the level of deprivation of potable water of more than three quarters of a million people (0.82 million) is
unknown, but is correlated to the lack of appropriate infrastructure (GDF, 2012). Without being
constrained to MC, the crisis of water, for the last decade, has been a national security problem and
permanent recurrent issue within the Federal, state, and local political agendas (Serrano, 2012; GDF,
2012).
International and national research teams have analyzed the crisis of water from almost every
perspective: technical, financial, institutional, historical, social, legal, economic, and environmental, just
to mention a few. Most of them have helped to identify the consequences the crisis has produced and their
interactions; usually the studies were restricted to specific areas, whether geographical or in regard to a
particular subject or component of the water system. In some cases, the diagnostics, projects, and
researches have also created proposals to overcome the crisis. In spite of these recommendations, the
crisis persists.
In contrast to the approaches analyzing the metropolitan water administration looking for
punctual or isolated factors to be improved, this research focuses on identifying the institutional factors
that promote the lack of potable water in MC, which are currently a black box from several perspectives.
Therefore, in order to advance the understanding of the nature of the crisis of water, this research asked:
what are the institutional factors that promote the crisis of potable water in MC?
To answer the question I used institutional and property rights approaches. The institutional
approach focused on institutions—both as organizations and as norms—and was used to identify the
xiii
relevant institutional arrangements that promote the crisis of water. I looked at the processes and systems
that rule the agencies responsible for providing water to MC, and how those rules promote or hinder
public water agencies in complying with their duties regarding the provision of potable water at a
metropolitan level.
As with any other metropolis, MC has a complex potable water system; it has 60 public
organizations involved in at least one phase of the process of provision of potable water. Even with this
many, the public organizations work within a strong vertical institutional design, with severe
administrative limitations, and with interagency relations that are path-dependent on the federal
government and state organizations.
Moreover, modern water systems are divided into two main parts: the potable water system and
the waste water systems. The analysis in this case was restricted to the potable water systems and
constrained to the three governmental agencies in charge of potable water administration in MC: the
National Water Commission (CONAGUA) and the water agencies of the Federal District (SACMEX) and
the State of Mexico (CAEM) These three institutions control the regional transference of bulk water to be
distributed, mainly, within their jurisdictions.
Institutions as rules were restricted to the most relevant federal, state and local legal framework,
including the National Constitution, federal and state laws, presidential decrees, inter-government and
inter-agency accords for regional water apportionment and metropolitan distribution of water in MC.
In Mexico, water not only belongs to the Nation, but water provision for individual and
residential use is a human right granted by the Constitution; there is also a historical strong social sense of
public ownership of water. Thus, in order to understand the processes and interactions of water public
organizations in managing water as a common good, and to identify the rights of those agencies to
physically access the resource and to appropriate valuable attributes of water, I used a property rights
approach.
Property rights analysis, in this case, neither follows the narrow view of using it to define
competition for complete possession and control of goods or services, nor follows the linear vision that
xiv
the commons are transformed into common property, and then into private property; instead it is used as a
means to understand how rational actors gain control over water, and how that control becomes an
entitlement that gives power to define the use of water while being subject to governmental protection and
penalties that apply to both the owner and non-owners.
The rationale for defining the period of analysis from 2004 to 2014 followed the accepted idea
that policy change is a process that demands at least a decade to identify the interaction of stable and
changing factors that affect outcomes of a policy subsystem, and to complete at least one formulation-
implementation-reformulation cycle (Weible & Sabatier, 2005; Sabatier, 1988; Heintz, 1988).
The main objectives of the aforementioned analysis were: a) assessing the institutional factors
that explain the crisis of water in MC, b) analyzing cooperative and competitive institutional
arrangements to identify how they promote or halt the creation of an adequate metropolitan water
administration, and c) to propose solutions of first-order governance to help shifting public policies to
promote adequate administration of water at a metropolitan level.
The analysis and results are organized into six chapters. The fist chapter sets the basis for
understanding the management of common goods, as well as governmental participation in managing the
communal property and municipal services. It provides lessons from several perspectives and
international experiences in water management. It continues with the theoretical background needed to
understand water property rights, for surface and groundwater, and includes the analysis of water as a
human right.
The second chapter presents an analysis of the components of modern water systems, the phases
of urban water systems, and the challenges inherent in provision of potable water to metropolitan areas. It
also provides lessons of intergovernmental responses for the provision of public services and
administration of common goods.
The third chapter offers the background needed to understand the decision-making process in
Mexico. It sets bases to understand how the legal framework that rules the control of water is created. It
also helps to build up the language needed to understand both the processes related to the management
xv
and administration of common pool resources, as in the case of the provision of potable water to MC, and
why solutions to the crisis of water that appear to be of common sense and straightforward under systems
with strong judicial systems do not work in Mexico.
Chapter Four analyzes the history of decision-making regarding the control of water in MC, to
conclude that the crisis of water in MC is a euphemism to depict a misunderstood, constructed, city-
sources-of-water relationship, built over a period of five centuries of continuing effort.
Chapter Five contains the data analysis of three main sources of water that provide potable water
to MC: the Cutzamala system, Lerma system, and Wells of Immediate Action (PAI). The analysis allows
identification of the limitations and contradictions of the Federal, regional, and local legal framework that
regulates the apportionment of regional sources of water and the distribution of potable water to MC.
The last chapter includes relevant implications of data presented in previous chapters and presents
the conclusions and recommendations.
1
Chapter 1: Water Property Rights
This chapter contains several approaches to the management of common goods. It argues the
value of government participation on managing the commons, communal property, and municipal
services. It includes unsolved challenges that surface and groundwater pose to water property rights;
lessons on water appropriation from several perspectives and international experiences are also included.
In addition, the chapter provides the theoretical framework for the analysis of the provision of potable
water to Mexico City.
1.1 The Use of Common Goods
An approach to the distribution of scarce resources is the creation of particular Property Rights
(PR) that impose particular roles to defined actors, and with it, to impose a particular set of
responsibilities and benefits.
The provision of public services to a metropolis entails several challenges. In contemporary
times, we depart from the dilemma of granting access to common pool resources within a market society
without leading to their destruction by ensuring a principle of justice. While analyzing how to protect
common pool resources and deciding how to control their use, solutions have been designed based mainly
on three main theoretical approaches that, one way or another, embrace current metropolitan public
policies as those of water management.
Since provision for public services is linked to the use of common goods, there is the permanent
dilemma of how to use common pool resources without leading to their depletion or destruction. Hardin
(1994) asserts that what belongs to everyone, belongs to nobody, and therefore in the long run we lead
toward the abuse and destruction of common pool resources. Based on this premise, several governments
have based their decisions on defining an ultimate owner of the resource—often by privatizing common
2
pool resources. Unfortunately, the privatization of public goods has neither proved to deliver better results
of maximizing their use under fair access for all those who need them, nor to creating a self-funding
service. In the best scenario, privatization remains controversial; moreover, privatization has proved
unlikely to produce cost savings in public services with high asset specificity, as in the case of the
provision of potable water (Bel et al, 2010; Carrillo, et al. 2007; Ostrom, 2005, Schneier-Madanes, 2014).
Whether privatization is effective or controversial, what it is undisputable on the use of common pool
resources is the role of the government.
In his classic work The Leviathan, Hobbes asserts that the use of common goods entails selfish
individuals who aim to satisfy their needs and desires in the easiest way. To Hobbes, individuals are
neither able to control themselves nor their peers; and the presence of an external power able to enforce
rules and to punish infractors is needed, embodied by what he calls “The Leviathan.” Thus, Hobbes
championed the creation of a common power headed by a single endowed by tacit social agreement.
Since the 17
th
Century this idea has been used to justify the intervention of an absolute sovereign power:
the government.
The idea of the role of an external force has been used as a defense for the existence of past
monarchies or the defense of some contemporary presidential systems and totalitarian regimes that, with
few legal restrains, act as de facto monarchies. The rejection of the arguments Hobbes defended has not
been enough to overcome the ideas of the presence of an external force to a social group or society for
creating and enforcing rules; moreover the role of the government, according to Hobbes, not only
includes the control of common goods but their distribution.
Hobbes asserts that every man has the right to every thing, but it must be a coercive power to
force individuals to perform the same way under the precept that the punishment for deviation will be
higher than the expected benefit of doing so (Hobbes, 1962: 113). When this is implemented, the concept
of property appears, removing it from the status of a common pool resource. This leads to the appearance
of contracts in which individuals commit to not interfere with the property of others as far as the others do
3
not interfere with theirs. To achieve this goal, there is, again, the need of an external force to make their
agreement constant and lasting (Supra.: 132).
Thus, to Hobbes, a commonwealth, or civitas, is a common power, needed to defend covenants of
a social contract from attacks of outsiders or injuries of one another. The creation of that commonwealth
asks for more than a consent or concord; it asks for men to give up their power to govern themselves and
to confer all their power and strength upon an entity, whether a man or an assembly of men, which is
supposed to be able to condense the individuals’ wills into one will. This is the idea of a society, working
as a single entity, thanks to the presence of an undivided and sovereign power prodding everyone to move
into the same direction for a common benefit.
But this approach leads us to two important questions: who will watch the watcher when every
man with power tends to abuse it? And, how do we keep custodians honest? These questions are
particularly relevant when, as Hardin (1994) points out, the laws are anachronistic and poorly suit the
complexity of a contemporary changeable world.
The solution Adams proposed is to have “a government of laws and not men” (Hardin, 1968:
107), and before him, Montesquieu proposed that in order to prevent abuses “power should be a check to
power” (Montesquieu, 1778: 211). Adam Smith, who contributed to a strong school of thought
popularizing the idea of the “invisible hand”. Contrary to Hobbes, Smith asserted that it is not a supreme
single force but individual decisions that lead to the best choices for the entire society—later on in time,
that doctrine opened the door for what became the dominant position of no governmental intervention and
supported laissez-faire policies (Hardin, 1968: 103).
Besides the options of common goods owned by the government or being privatized, in her
collective action approach Elinor Ostrom champions a third way: the social ownership of the commons.
To Ostrom, collective action has shown a way to self-govern the common goods. So, the tragedy of the
commons, whether in the hands of the government or private investors, came to be the tragedy of the
unmanaged commons when their use is left uncontrolled, and leaving the commons open to users but
without duties and responsibilities jeopardizes both the socio-economic prosperity and the preservation of
4
the commons (Hardin, 1994: 199; Ostrom, 1990, 1994). Governmental intervention is essential in these
cases.
1.2 Government Participation and the Commons
The argument of government participation on managing commons lies on three generally
accepted principles: the need of a governing authority and its institutionalized use of legal force; lowering
costs and improving benefits (accepted, even though there is strong controversy on governmental results);
and the capability of promoting a process of coordination while reducing uncertainty associated with open
access to the commons. Those factors magnify when applied to the principle of redistribution and
collaboration in multijurisdictional areas in which no other actors may have the long-term resources and
authority to intervene.
The arguments for government participation also include the rectification of externalities, the
avoidance of monopolies, and the promotion of redistributive actions. Of course there is an extensive on-
going debate on what the role of government may be in particular situations, on how it may be performed,
and when it may intervene. For example, for some writers, government participation is vital because it
defines what is legally accepted, even in the case that some government employees are not public-interest
maximizers. This is true even when government becomes the legal power with a central role in the
process of defining, allocating, and enforcing PR, as well as creating incentives for individuals to adjust
to those PR and the social changes that produce them (de Alessi, 1987: 34).
Thus, under ideal conditions, what PR state are both the rights to use resources, and what is
socially recognized as rights of actions—legally recognized by the government. But in non-ideal
conditions, more than one party can claim some ownership interest in the same resource, or actors may
perform illegal actions and conflict will arise; therefore, an authority is needed to enforce what is legal.
Moreover, that authority is essential to protect the rights to use resources because what exists today may
not have existed, or it may not be common throughout multijurisdictional territories (Achian &Demsetz,
1973).
5
The governmental intervention, as an expression of the state, is valuable in the protection of
communal rights that demands the use of scarce resources. It normally lacks the power, however, to
exclude unauthorized users from using those resources, especially under conditions that make it difficult
to assess the value of the use of those resources.
Moreover, from the legal perspective, PR only make sense in a system where individuals are
forced to follow legally enacted rules. The state is able to create legal rules and to implement them. The
state has the power to create incentives and, in extreme cases, to use legal violence to force individuals to
comply with the law.
From the economic perspective, the role of the state is important because it can directly interfere
with the exercise of any kind of ownership: communal, private, or state. Although communities have the
right to deny the state its attempts to interfere with the exercise of communally-owned rights, the state has
ways to create legal frameworks to promote the development of private property rights in communal
properties, as in the cases of water and land. In the case of private ownership, the role of the government
is so important that it can apply the principle of eminent domain, and in the case of state ownership the
state is legally able to exclude individuals from the usufructuary use of state property, and can reverse
exclusions allowing access in accordance with principles of redistribution and justice. These interventions
have proved to be a valuable mechanism for granting the principle of redistribution in an environment
where owners try to maximize the present value of their PR, and in environments where communal
property is under permanent attack from economists and investors who champion the conversion of
communal property into private property (see Demsetz, 1967).
Of course, there are economists who deny the value of government in the creation of PR and the
economic importance of government for the creation and implementation of PR. Their main arguments
are that contracts are strong enough to create effective PR systems, and that PR evolve and fix themselves
to the point that there is no need for government intervention. They even claim a spontaneous creation of
PRs by the grace and presence of an invisible hand, and by evolutionist qualities in which the more
effective institutions survive. Unfortunately, what these writers do not tell us is what happens when
6
agreements fail or are in conflict. They do not either tell why societies look for a powerful authority with
judicial powers to make agents accountable, especially when we cannot control people’s behavior within
environments built by selfish and opportunistic individuals, and at the same time expect to reduce the
depletion and to add value to the commons by just appealing to their consciences.
Moreover, what these market-loving economists forget is that the market is a common good
itself; therefore, it runs by the same principles we are discussing, and faces the actions of egocentric and
opportunistic individuals. Thus, the economists who claim that PR systems have spontaneously emerged
or evolved, in the best case, by private reasons, forget that the market has been consistently protected by
the government, which is far from being a neutral actor (see Gamson, 1968; Dahl, 1971; Hodgson, 2014;
Scott, 1983).
Thus, PR cannot exist without a theory of the state. The political organization of a society defines
the kind of PR owned, and the government as an authority of the state can define, via legislation or by
using policing or military force, the owners of PR. The government can make, one way or another,
citizens pay for owning PRs or exclude them from ownership (Furubotn and Pejovich, 1972). The state,
then, grants permits and enforces prohibitions and limits to use common goods, by defining the allocation
of resources and income distribution; a detailed explanation of this demands a complete theory of PR. The
effort requires going beyond the appearance of the modern state because some property rights were in
existence before the creation of our modern states (Krier, 2008), but that analysis will be left to
researchers with more ambitious goals in the theory of the state.
The changes on PR can be seen as the relation between the costs of changing and protecting new
PRs. Government participation in creating PRs is important because there are two main problems with
communal property. The first is the absence of a right to exclude, and the inability to exchange at market
clearing prices, prices, which are linked to the transaction costs to create those modifications (Alchian and
Demsetz, 1973: 21). Thus, the evolution of PR is linked to the relationship between costs and benefits of
creating and implementing them, which seems to be a reasonable assumption accepted by the dominant
economic and legal approaches (see Krier, 2008). The second issue is that PR are created when
7
abundance declines and scarcity starts developing, since the value of a good or service increases, its
supply declines, and the protection of valuable attributes changes. Thus, changes in values and costs were
two main factors for the creation and development of PR within a wide variety of options—from
privatization of the commons, from more inclusive to less inclusive access, common ownership with
regulated use, etc. (Krier 2008).
What is important to underline on the process of PR development is that when the right to
exclude is seldom exercised by the state, the users of the resource will treat it as a communal. Neither the
state nor other agents can exclude other individuals from using a communal good “except by prior and
continuing using of the resource” (Alchian and Demsetz, 1973:19). Moreover, users of the common good
do so without being aware of the impact of the externalities they produce and governmental intervention
is usually needed (Idem supra).
Once the common good is in the sphere of communal use there is a rush for its appropriation.
Alchian and Demsetz (1973:22) assert: “Under a communal right system each person has the private
right to the use of a resource once it is captured or taken, but only a communal right to the same resource
before it is taken”. That’s why the sooner users privatize the resources the better for them, but usually that
solution is worse for the preservation of the resource. In practice, this contradicts the argument of
privatization advocates who champion private rights as means for encouraging people to take care of
social costs (see Alchian and Demsetz, 1973: 24).
The instability of communal rights becomes more critical when technological changes make the
resources more valuable, modification of the structure of rights is expected, and people adjust to the new
costs and benefits. Thus, in a world of scarcity, individuals can increase their welfare through
specialization and exchange, which make the development of effective property rights systems difficult
(de Alessi: 25;). Nevertheless, the above is contextual; in the case of fisheries, granting full ownership
does not grant degradation or avoidance of the resource. This is true even in the presence of large changes
in technology or the expansion of markets, because there are incentives based on quotas, taxes, and other
regulations (see Schelager and Ostrom, 1992:259).
8
In a PR system there are four main actors: the authorized user, the claimant, the proprietor, and
the owner (Schelager and Ostrom, 1992:240), and there can be governmental regulation over all of them.
In contemporary times, the relevance of the role of the government is not the main discussion, but rather
the time and extent of its intervention. This is an important viewpoint because the lack of convincing local
evidence related to activity, kind of property, or community can prevent clear knowledge of the relevance,
since both transaction costs and interest groups are contextual (Levmore, 2002).
Under a public trust doctrine, time is also important for government intervention because the
government is seen as the trustee of new generations and legislative action is needed to protect natural
resources for the benefit of present and future generations. That means not only immediate markets’ needs
must be a priority, but long-term needs must also be taken into account, and government is the adequate
agent to do so (Milliman, 1966).
In a market society, economists think that markets are the “simple low-cost way of specialization
and exchange”, able to provide the information and incentives needed to maximize the allocation of
resources, while from the legal perspective, property rights are seen as a way to resolve conflicts related
to the use of scarce resources (Alchian and Demsetz, 1973: 16; de Alessi, 1987: 28). Of course, when I
talk about property rights in legal terms, I refer to the right to use resources, or in legal terms what are
owned are rights of action, not the resource itself.
Irrespective of the advantages of markets, or those its advocates claim it has, empirical works
have demonstrated that even well designed markets can work against social policies that aim to set basic
minimum standards for all types of individuals (Andolfatto, 2002: 382). Such standards may be
implemented, for example, when a government imposes inalienable property rights while allocating
resources under justice considerations or according to a certain level of fairness.
Part of the solution for the provision of high-quality municipal services at a metropolitan scale is
to find out the status quo of PRs structure and try to move it to the institutions that can solve the
conflicting factors at an operational level when the needs of all actors cannot be fulfilled at the same time.
9
The point is not to predetermine the structure of PR, but to facilitate a public choice procedure to actors
determine their appropriate PR.
Whether PRs are seen as a product of cooperative collective action or a convergence of
conventions of behavior (Krier, 2008), the resource values are at the core of this discussion. In the former
case, it is thought that the increasing values promoted the creation of PR. In the latter case the increasing
values leads to the collapse of PR.
PR have three essential characteristics of a basic property system: to exclude, to use, and to
transfer, granted by the presence of a governmental authority as a central actor able to define and to
enforce PR. In this context PR have risen as a helpful option for governing common goods within a
market society for the provision of municipal services at a metropolitan scale.
1.3 Property Rights
PR are relationships between people regarding control of valuable resources. Stating that we have
a PR is asserting that we have the right to control, to consume, and to dispose or to transfer the ownership
of valuable attributes of goods and services (Berger, 2013; Cole and Grossman, 2002, Leblang, 1996;
Hohfeld, 1913). Thus, in its more synthetic sense or from the legal point of view, a PR is the authority to
undertake particular actions related to a specific domain (Schlager and Ostrom, 1992; Pejovich, 1972). At
the core, these rights involve the principles of utility maximization under a penalty-reward system
(Pejovich, 1972). It is assumed that PR affect the allocation of resources (in combination with public
policies that direct laws).
PR are important because by defining owners we can define those relationships, and by defining
the way PR are assigned or transferred the resources needed to enforce them and the expected output and
its distribution are also defined (Anderson and Hill, 1987). They are also important because, it is thought,
PR affect actors’ behavior, resource allocation, type of incentives, and outcomes of actors (S&O,
1992:250). It is also thought that PR help minimize the risks to shirk or cheat by setting institutional
constraints and by changing the expectations about the actors’ action within environments of
10
asymmetrical access to resources and information, and repeated interactions (Alchian and Demsetz,
1972; Leblang, 1996, North, 1990).
From the perspective of a common pool resource two factors are pivotal in PR: the right to
physically access the resource, and the right to appropriate valuable attributes of the common good
(Schlager and Ostrom, 1992: 250).
Moreover, PR are important because they help us understand what kind of competition is used to
allocate non-owned valuable resources, the ways of appropriation, and the implications of not having PR
in such a resource for its conservancy and use (Pejovich, 1972:371).
PR are enforced by both the legal rules and the power of the state, and by social conventions.
Thus, PR assign mechanisms for individuals to select and use resources given a range of permitted uses.
In some cases, PR are exclusive and transferable (e.g. a bottle of water), exclusive but not transferable (a
individualized permit for groundwater exploitation), or non-exclusive and non-transferable (access to a
public lake). PR can also be portioned, and some individuals own certain attributes while other attributes
are left to other actors; therefore, PR define how the benefits and harms are allocated.
From the economic point of view, individuals are expected to adjust their consumption of a good
to the variability of its constraints. Under this logic, in the case of private property, the more complete and
well defined the PR, the greater the incentive to consider the benefits or harm of a decision to use that
good, and the greater the incentive to look for the highest-valued use. In common ownership with open
access, on the other hand, actors are impeded in recovering the full gain on any investment to improve the
common good. Therefore, there is little or no incentive to invest in the assets (Eggertsson, 2003: 77 in
Anderson and Mc Cheney, op cit.). In the latter case, actors have less interest to preserve it, but more
interest to quickly privatize the resources for creating exclusive PR (de Alessi, 27; Alchian and Demsetz,
1973; 22).
Moving from theory to the real world under the previous assumption we should add that not only
is the creation of PR difficult but their monitoring, enforcement, and adjustment to individual changing
circumstances are also difficult and costly.
11
Thus, local conditions pose four basic questions: in what way are PR not fully assigned, enforced,
or priced; how can individuals be forced to take full account of the consequences of their decisions; what
are the opportunities to adopt institutions that economize transaction costs; and how is the government’s
role specified and linked to the system of property rights. Therefore, PR tend to be seen as the means of
setting the rules for competition; these rules are useful when it comes to solving conflict over the control
and use of scarce resources (de Alessi, 1987: 27).
Another central problem with the PR approach is the linear interpretation of PR evolution. The
idea is that scarcity leads PR, from open access to common property, to private property. The problem
with this approach is the unanswered question of why privatization seems to be the silver bullet solving
all the problems of access to the commons. The persistence of the infallibility of a market society is
contested by reality that shows the depletion of common goods and the lack of fairness in access to them
(see Galeano, 1998). Fortunately, there is another vision of PR.
PR are also perceived as the combination of economic property rights and legal property rights.
From the economic perspective PR define an agent’s ability to, directly or indirectly, benefit or consume a
good or its derived services (Barzel, 1997). In this case, a benefit is understood as the direct consumption
of benefits coming by exchange (Barzel, 2003:51, in Anderson ed., op. cit.).
Economic PR keep a positive analysis based on rationalism and bounded rationalism. In this
perspective individuals are thought to choose under conditions of scarcity, to act rationally adjusting their
marginal benefits and costs; societal rules govern how competition for resources is performed and based
on self-interest of rational actors, and property rights are thought to promote trades with positive-sum
games (Anderson & McChesney, 2003).
In a real world, far from the idyllic zero transaction costs depicted by economic theories, a
primary function of PR is to create processes in which the external cost and external benefits, whether
pecuniary or not, should be directed to all interacting agents, which in economics jargon is the
“internalization of externalities” (Demsetz, 1967:348). This process can be achieved through a law,
12
which in federal republics are enacted by the legislative branch, or by executive order, and implemented
by judicial powers.
From the legal perspective, a dominant US legal theory negates the creation of rights by simply
asserting them. This demands going beyond the simple definition of a legal PR as the right that is
recognized for legal instrumentalities and protected by the government, as Ostrom defines them (1992:
254). Thus, PR are protectable rights with legitimate claims of entitlement to them, and an enforceable
duty to exclude—whether by social consent or the owner’s power (Cole & Grossman, 2002). And more
importantly, PR are relations with two main characteristics: they are both a privilege and a restriction. On
the one hand, they give power to control things by allowing the use of a property, excluding non-owners,
transferring property, and offering protection from taking the property without the owner’s consent or loss
without just compensation. On the other hand, they impose restrictions (assuring that the PR of an entity
is compatible with the PR of other entities); since PR are not absolute, the restrictions go both ways, to
the owner by not allowing harming the legitimate rights of non-owners, and to non-owners for not
allowing taking property without owners’ consent (Singer et al. 2014: XXI). Thus, under a legal
perspective, property right is an entitlement.
Among the long list of rights concomitant to the possession of property, one is ubiquitous: the
right of exclusion. In America the concept is linked to the law of trespass, which is understood as entering
a property without permission, the unprivileged intentional intrusion on property possessed by another.
The intrusion occurs when the non-owner physically enters the property, or an object extends over a
neighbor’s property (above or below the surface). If that is the case, the violation is usually handled as a
tort. Several legal scholars and courts think that the right to exclude is the main distinctive attribute of
property (Singer et al., 2014:14).
Although proprietors are allowed to exclude non-owners, there are several exceptions coming
from non-statutory and statutory law. Thus, PR are not absolute and their variations are contextual;
sometimes they are allocated through rigid rules, that allow control of a particular resource, while others
use flexible standards, that allow levels of discretion to exclude from private property. Nevertheless, two
13
main conditions seem to be pivotal: PR serve human values and owners should not use their property to
injure the use of others (Singer et al, 2014: 5-28).
Thus, PR and power are closely linked. An influential legal perspective on PR asserts that actors
have no right if they do not “have the power to summon the aid of the state to alter or control the behavior
of others” (Singer, et al, 2014:39) From this perspective PR are legal relations linked to the power to
influence the state because rights are protected interests (Raz, 1984:12).
In essence, what makes a right different from a mere privilege, power, or immunity is both the
legality bestowed upon it and the existence of a correlative legal duty. Thus, since rights are contextual, a
right becomes a legal privilege, legal power, or legal immunity once Law recognizes it, and it can be
whatever is lawfully claimed; the violation of a right is recognized when there is an imminent violation of
a legal duty. That means that when a right is disregarded, there is a violation of a legal obligation of what
the infractor ought or ought not to do (Hohfeld, 1913).
The above condition is what basically sets the difference between a right and mere privileges,
power, and immunities, since they are not recognized as right until there is a correlative that force second
parties not to interfere with the use of valuable properties of goods and services transferred to a particular
users or beneficiaries. Thus, the existence of an enforceable legal duty is the condition that helps us to
differentiate form the ubiquitous and indiscriminate use of right as a concept, from legal advantages as
opportunities, privileges, and exemptions.
Therefore, when we talk about PR, we should identify their creation and consequences. Legal PR
should explain both how it is possible to come to have legal rights and the legal consequences of having
this legal right. In the former, the direct reference to a law may suffice. In the latter, the exercise of a legal
power can be set in action only if there are legal consequences attributed to an act recognized by law,
which means that while protecting an interest, it also imposes duties on others, and not merely sets
conditions for an entity to achieve certain results (Raz, 1984:12-14).
There are two main reasons by which a legal right may not have legal force. One is by creating a
right where none existed; the other is by protecting an interest where that did not exist. Neither is
14
sufficient to impose duties on others. If this happens, a legal right without a moral force is created (Raz,
1984:12-14). This way, the law claims validity in and of itself, and describes normative situations in
which actors are not committed since there is legality but not social interest leading to a moral right. In
some cases rights are overridden by moral considerations (Raz, 1984:16-19). Moreover, legal rights tend
to develop the law in certain ways, but what is important is to find the contextual factors and reasons that
allow courts to order to protect a PR. If conclusions are drawn from the data, they must be interpreted
within the social context in which the rights have been protected, since changes in PR can result from the
power of the market, political pressure, public policies, and the operation of supply and demand (Castle,
1978:7).
It is important to recognize that public policies can influence the environment in which PR are
used, and to understand PR we need to consider both simultaneously (Castle, 1978:3). At the end, the
important question is how the intentions of the law are dictated. Is the rule or law that creates the property
right only creating a condition that imposes a duty, or is it only setting a condition for an actor to achieve
a consequence?
The previous question points out a central factor usually lost in the ongoing controversies on PR:
granting a right should have a concomitant enforceable duty for respecting it. In the absence of a
corresponding duty, the argument of the existence of a particular right is null and void. Thus,
controversies on PR from economic and legal perspectives, misunderstanding the power to exclude,
bolster senseless controversies; they see PR where there is only immunity, privilege, opportunity, or the
exercise of power. The enforceable duty of other agents for respecting a legitimate right is important not
only for its legal and economic implications but also for its ethical and moral implications and, therefore,
for the intervention of the state, for the creation of collective action, or for defining the role of
privatization. As Hohfeld argued a century ago, there is a huge difference between having the power and
having the right to impose an action (Cole & Grossman, 2002).
15
1.3.1 Legal and Economic Property Rights
In order to build effective governance, in theory, informal institutions should reinforce formal
institutions (Ostrom, 1990; Yan, 2012). Unfortunately, in environments with benefit maximizers and
egocentric actors, it is common that informal institutions counteract formal institutions—just like car
drivers that take a forbidden turn in order to avoid a long loop during rush hour, in the absence of the
police. In the case of PR, it leads us to the second important issue: the controversy on when formal PR
should prevail over informal PR. Since PR are not absolute but the result of social interactions, informal
PR can be the product of de facto possession, longstanding reliance, social customs, and even oral
agreements. The contrast of informal PR with the formality of legal PR seems to be a contradiction, and
even though Law insists in formal PR, it also protects informal PR, but the answer of in which situations
should prevail the former or the latter has led to am unsolved controversy (Singer, et al, 2014)
A third vital issue is the alienability dilemma, which unveils one of the crucial factors of PR: its
protection of a market society. Under one of the most basic jural precepts a property right should allow
owners to freely transfer property, which demands individual autonomy; at the same time formal PR are
regularly consolidated in the same owner, and cannot be transferred.
The fourth unsolved issue is the dilemma between individual and shared ownership. Formal and
economic PR recognize social ownership to control property to certain degree, but the limits are
contextual due to history and legal systems. For example, Mexican indigenous systems with solid
concepts of shared property rights see water PR attached to land ownership, and neither individualized
nor communal water PR were allowed to be sold. After the constitutional amendment in 1994, water PR
were made transferable whether as communal or as individual property rights, and also separated or
united to land PR. Some indigenous systems embraced the new systems and others maintained their
previous PR.
An important limitation of PR is their inaccurate definition. This is related to the lack of
definition of all benefits and costs of some activity, good, or thing attributable to a particular agent.
Government has a vital role in defining PR. Even though it is accepted that property rights existed prior to
16
government, it is recognized that government permanence facilitates the design and enforcement of PR.
Locke claimed that the preservation of property was the ultimate end of government (Cited by West,
Edwin: 21 in L Anderson & McChesney, op. cit.).
What it is important to remember at this point of the discussion is that property is only a means to
an end, not an end in itself (Mill [1848], 1969. 226. Cited by West E. op. cit.: 34). Since the eighteenth
century the idea of “well respected and property rights placed in a clear and legal setting, together with
guaranteed liberty, were sufficient to set the wealth of nations”, as Smith asserted. That idea points to the
core of the problems on how to manage scarce resources while stopping over-depletion of the resource
and granting fair access to actors. That is where property rights have been seen to be a valuable approach
to solve the problem, providing the various ownership arrangements and regulating access—which means
that PR define who will be included and who will not, and under what circumstances. In other words, PR
delegate rights, duties, and obligations to certain actors.
If it is true that when PR are vaguely defined, marked failure results, then why do legal PR not
match economic PR? The answer Barzel (2003: 53) and Cole and Grossman (2002: 317) propose is that
establishing and maintaining economic rights demands resources; thus, the equilibrium between the
resources demanded to fully define the property rights and to enforce them, and the economic loss, will
determine how well defined and enforced they will be.
In the case of common goods, the structure of rights may vary based on physical characteristics of
the good or service, the relative prices, the technology used, and the institutional arrangements, and
therefore economists suggest thinking of them as investments (Eggertsson, 2003: 75).
Moreover, PR change when in the process of internalizing externalities. The gains of doing so
exceed their costs (Demsetz, 1967: 350). PR involve two types of costs: exclusion costs and internal
governance costs. At this point is where the role of the social norms is so valuable. Social norms provide
low-cost exclusion compared to specialized organizations and decentralized enforcement of norms, which
is usually attached to other activities.
17
1.4 Water Property Rights
Water as a common property adds additional challenges. For example, since it is a natural
resource, it is a good candidate to be available to open access, mainly due to the cost of exclusion. The
most important challenge, however, seems to be that no one arrangement for exclusion will minimize all
kinds of costs. In the most sanguine case, violators will evaluate the credibility of the state enforcing rules
and the effectiveness of the owners to protect their assets, before they decide whether or not to violate
property rights. One reason they may choose to do so is that high levels of government may prioritize
other goals over maximizing the value of common pool resources at a local level (Eggertsson, 2003).
Explanations of water Property Rights (WPR) are full of metaphors rather than clear definitions.
It is thought that PR are tradable, they are conferred in perpetuity or on a long term basis, except if they
are allocated to actual users or on the bases of actual use (Rolph, 1982:vii). Furthermore, water challenges
the traditional legal concept of ownership. Water, a vital resource, has been recognized as a communal
right, and its possession has a history of being granted under the concept of revocable WPR or contract
rights. This allows privatization among owners and enables a tradable permit system, which can be
reversed if trades interfere with the public benefit (Saxer, 2010). Moreover, water challenges ownership
in at least four ways.
First, water rejects total or exclusive possession because it is a non-stationary resource with high
variation over time and space. Water is a partially fleeting and partially stored resource; thus, mobility
increases cost of exclusion. Second, ownership has to do with multiple suppliers and users across
boundaries, so divisibility is difficult and expensive. Third, water is perceived as a common good and
involves ethical and moral values that define a different market than other goods with a huge range
between open access and full private rights—see table 1 of public-private goods classification on page 41
(Ross, 2010, Cole and Grossman, 2002; Rolph, 1983, Milliman, 1965; Eggertsson in A&Mc 2003). In
addition, internal governance issues, such as an agreement on hierarchical rules—from operational
settings to dispute resolution—demand changes in the structure of the governance regime. They may also
18
seek new ways to enforce those rules while adjusting to external changes—mainly when insiders differ in
their productive abilities (Eggertsson in A&Mc, 2003: 84-5).
Water makes it problematic to define what constitutes PR. Economic approaches suggest
definition of PR based upon marginal benefits and costs when scarcity rises (Barzel, 1997; Provencher &
Burt, 1994). Legal approaches assert that water owners only have rights of appropriation but not complete
ownership; thus, PR only define or identify usufructuary properties of water (Ross, 2010; Berger, 2013).
Since PR are not clear, neither are the conditions to their usage. But experience of water management in
different countries brings useful lessons.
1.4.1 Water Property Rights Doctrines
In England, America, and Australia, surface water has been approached from two main doctrines,
originally “first in time, first in right” or riparian rights, and later their combination or a dual system.
The legal principle of first in time, fist in right, has several names. Some authors used to refer it as
the aboriginal ownership, the prior-appropriation water rights, appropriation doctrine, and common law of
right of possession. This doctrine has many variations but three central ideas are generally accepted. First,
water rights are not part of land ownership. Second, the user of water for a specific use gets the right to
use it, over the right of future users of water for the same purposes. Third, forfeiture for non-use opens the
option to trade the acquired rights. Over time, the condition of reasonable use was added to ensure that
exercising the right of use does not devaluate the water rights of other owners along the watercourse
(Harris, 2013; Saxer, 2010).
Under common law, water was not part of landownership, but land bordering a stream extended
its boundaries to the bed of the river and gave the landowner the right to use the water flowing on their
land (Harris, 2013). Common law in the UK was mainly used to solve disputes, not to grant access to
water as it was later used in the US and in Australia, and it applied only to riparian rights—the rights of
owners with land bordering a river or a stream (Harris, 2013).
19
Thus, in the US and in Australia, appropriative rights came through English common law.
Appropriative rights evolve in arid settings with investment in non-deployable assets; miners also used
them in goldfields during the middle of the 19
th
Century in the US and Australia, with subsequent
formalization by courts and by goldfields Commissioners (Harris, 2013).
In the cases of California and New Mexico, the prior appropriation rights existed as pueblo water
rights and developed when those territories were under control of Spain and Mexico; these owners lost
their recognition while under US control. The original Americans (the so called Indians) did not base their
water claims on European grants; Europeans just confirmed pre-European water rights and the legal effect
depended on the history of the particular group and on their vested water PR before the Europeans arrived
(Merrill, 1980).
Since the beginning of the 20
th
Century, New Mexico has rejected the recognition of pueblo water
rights. In 1935, in Arizona’s controversy over water rights, pueblo PR were invoked to help solve
problems of allocation of Gila River water between an Apache tribe and the US government. The process
showed two main lessons: settlements based on pueblo rights are slow processes, and water PR in weak
player’s hands are almost impossible to defend. It took 80 years to solve the conflict; when solved until
2011 (Merrill, 1980; US Court of Appeals, 2015), the US government decided not to honor Indians tribes’
water PR, which, at the end of the day, became just a mere piece of paper. In the legal process it was
argued that the government branches were not able to grant water rights to the Apache tribe, because they
preferred to benefit non-Indians competing for the same water (Merrill, 1980: 69). The Apache
experience is not an isolated case as the Hopi tribes’ experiences show, although other writers assert that
in the 20
th
Century the common law has been changing to accommodate community needs (see Saxer,
2010).
Washington State has a different approach to prior appropriation. Since the end of the 19
th
Century, the appropriated water right was perpetual and the quantity of water became appurtenant to the
land. The legal recognition of vested water used the nowadays misleading concept of beneficial use,
which mainly defines the water uses permitted and the measure of the water right. In order to define the
20
latter, courts coined the principle of reasonable use, which is defined by water duty and waste. Water
duty is the amount of water needed to maximize the production of an extension of land in a certain time,
conceded careful management and use, and waste refers to invalidating of water rights when the water
was wasted (Singer, 2014: 500 ff).
Prior appropriation has the problem of late, unclear regulation. Regulation is related to the
existence of natural resources that need the water for their process and exploitation, but the lack of clarity
has increased controversies among the Federal government, state governments, and water claimants. At
the same time, regulation is challenged by the limitation of quantitative assessment, and whether water
PR are extended to groundwater (Merrill, 1980).
Thus, water PR are jeopardized by their security and flexibility. The temporal variability of the
rules controlling legal, physical, and tenure conditions challenge water PR. Governments define the
amount of water users are permitted to obtain, and the order of users permitted to have access to, water
sources; governments control water uses and users, and the prioritization of water uses. Cases in which
the use of water is not flexible, or WPR owners cannot contract or transfer their rights, usually lead to
overuse of the resource and higher enforcement costs. Moreover, stakeholders’ ignorance of water policy
and incomplete information facilitate individualizing benefits and socializing costs (Whitford and Clark,
2007:340).
Another issue with prior appropriation is that senior holders have PR above all federal and state
water rights; governments look for means to reverse this process. At the beginning of the 20
th
Century the
US Government enacted the Federal Reserved Rights Doctrine to provide water to Indian reservations,
which in practical terms reversed the clause of forfeiting rights of water for non-use. The US Federal
Reserved Rights Doctrine proclaims that all reserved public land implies sufficient water provision to
fulfill the purposes of the land. The water rights are not transferable, reserved rights may not be lost by
non-use, and controversies related to water rights have been settled in state courts within their general
streams adjudications rather than in the US Supreme Court. In other words, the control of water is under
state government, rather than federal government (US department of Justice, 2015; Merrill, 1980).
21
As opposed to common law, riparian rights are linked to the idea of common land ownership, and
water PR are attached to land ownership. Thus, all owners whose property is adjacent to bodies of water
are allowed to reasonably use it as it flows through their properties.
Riparian rights allow the owner of the land to have usufructuary rights on the flow, and although
the owner is allowed to divert portions of the flow regularly, it has the duty to leave it substantially
undiminished and undeteriorated in quality (Columbia, 1913:252). Therefore, the right becomes
usufructuary rather than absolute.
There are no clear geographical conditions under which riparian rights developed. While in the
case of the UK and the US these rights evolved in geographic settings with abundant rainfall, in the case
of Australia, they evolved in arid environments with deployable assets. This supports the idea that
investment and conditions of scarcity explain the evolution of riparian rights much better than location
and geographical conditions (Harris, 2013:219).
Traditionally, tide-waters, rivers, and lakes have been considered public water, granting the
public right of navigation and the development of riparian rights and their boundaries. Private waters are
covered by riparian rights acquired by priority, eminent domain, mines, covenants, prescription,
severance of tenements, equity, and statute (Harvard, 1901).
In some cases, a landowner was allowed to build ditches, with the water in those ditches
considered the landowner’s absolute property. As time passed, however, the sense of scarcity rose,
problems of allocation by expanding supply emerged, and the courts decided that water was no longer
considered part of the land—even the water in the ditches. In cases of construction of hydroelectric plants,
federal courts have determined that private PR in the bed of a navigable stream is a matter for each state
to decide (Columbia, 1913, 1945). Nevertheless, in cases in which the land loses contact with the stream,
e.g. due to dry seasons or shifting of streams, the riparian right is destroyed; at the same time,
conveyance, including to land not adjacent to the stream, retained its protection under riparian rights,
since the riparian rights were an integral component of the land (Columbia, 1919:288).
22
Whether we talk about riparian WPR or prior appropriation WPR, what the state grants through
the government are permits to enjoy a common good resource. Ownership is not conferred, but rather a
time-limited permit or license, for which the user should pay a fee. Therefore, the government retains
control of many valuable attributes of water, as well as the privilege to reverse the permit of license based
on public interest. Thus, WPR as absolute ownership is a wrong concept that lures the contemporary
social mind, since the variation of water PR ownership depends on how WPR are defined within local
contexts. Most of the time, WPR are only a usufructuary right, because it is a right not to the corpus of the
water but to its use; the communal sense of ownership remains and, most of the time, it is protected by
governments (see Saxer, 2010). In the case of a dual or hybrid system, riparian and appropriative rights
are mixed, and the allocation of WPR varies on a case-by-case basis.
The problem of allocation of water PR is not only about who gets control over water but also
about who makes such a decision. A common solution has been the creation of quasi-judicial boards with
regulatory power, which economists see as markets to allocate water based on the highest marginal use.
1.4.2 Groundwater Property Rights
If PR in surface water are difficult to define, underground water PR are even more problematic.
The lack of protection of groundwater PR forces us to move away from obsolete—but still in use—
models of using water. For example, in the US the legal framework provides no long-term protection of
water, and regulation is highly variable, based on common law—which, historically, has been incapable
of protecting groundwater. In the 21
st
Century, the US state governments are still creating WPR based on
ideas from the 19
th
Century; Maine and Texas reaffirmed at the end of the past century the legacy of
absolute dominion.
The absolute dominion doctrine claims that water under the land belongs to landowners and
allows them to take as much as they want. Under this doctrine, when competing uses of water were in
conflict or overexploitation of aquifers occurred, apportionment of groundwater was defined based on
land extension owned. Courts also used the principle of reasonable use to regulate groundwater. For users
23
that claimed water for future uses, the courts decided that groundwater PR should be granted on current
uses of water, not on potential future uses of water (Saxer, 2010).
Usually for formalization of groundwater PR the starting point was the collection of laws for
surface water, and groundwater was considered subsidiary to surface water. Thus, the assertion Hayton
made in 1982, that the law was poorly informed about water interdependencies, seems to remain valid
nowadays almost everywhere (see Hayton, 1982; Raya, 2007: 148 et seq.).
Historically, legal systems have struggled to define and protect underground water for three main
reasons. First, because overcoming controversies about ascertaining the location of groundwater and its
flow has been difficult. Second, because the lack of agreement on the definition of the principles that
should govern the use of water limits both the definition of actors and their duties and rights. Third,
because the lack of definition of attributes of water that should be under control (see Provencher & Burt,
1994; Ronald, et al., 1981; Milliman, 1965; Columbia, 1903,1913).
Under common law, the appropriation of water was granted through the ownership of the well,
its builder, or an accessory of the land ownership (Hayton, 1982), but from the legal approach the
adjudication of water PR has not been easy. In the US, with a system based on a solid judicial system,
there has been strong confusion on the property rights recognized and protected. The confusion is on
recognizing groundwater as absolute dominion, reasonable share, prior appropriation, personal property,
or a combination of them, and even by being recognized as no property at all. The confusion has
intensified the conflict in statutory, common, and constitutional laws, in particular when the legal
framework has tried to move away from the traditional justifications of unrestrained pumping—
championing industrialization and an anthropocentric view of natural resources (Saxer, 2010, Owen,
2013).
When regulation was initially attempted, it departed from the idea that there were underground
rivers. Riparian rights were granted, privatization was not allowed, and percolating water was adjudicated
to the landowner. The definition of the ultimate owner of groundwater, however, has become contextual,
24
and the contemporary process of water allocation demands modern regulatory frameworks to overcome
the limitations of past groundwater science and its lack of information.
As in the case of surface water PR, groundwater PR varies by state. In some states, such as Texas,
groundwater is adjudicated as a private property, while the idea is clearly rejected in Florida (Owen,
2013: 282). In California, with a mixed system, the correlative rights aim to limit landowners’ use of
groundwater to protect the rights of other landowners sharing the same aquifer. The tendency in
groundwater control has been to champion the criteria that private use must be subordinate to public
interest in waterways.
1.4.3 Islamic Law on Water
Another source of valuable lessons on groundwater PR comes from the Middle East. Islamic law,
a heterogeneous legal framework, is recognized as very detailed compared to other laws around the
world. Under Islamic law, water belongs to the country and its possession is related to the appropriation
of the infrastructure rather than to the soil. Since water can be owned if it is in a receptacle, the wells and
their water belongs to the well’s constructor. The owners of wells are obliged to share water for drinking
if no public source is available, but they retain the exclusive use of water for irrigation purposes. Islamic
law sees water table as a valuable attribute of water and demands avoiding lowering the water table by
building too close wells (Hayton, 1982; Job, 2010).
Israel, Jordan, Lebanon, Palestinian Territories, and Syria inherited the Mejelle, or the Ottoman
Civil Code, which, since the second half on the 19
th
Century, has defined water as a common good. The
Mejelle does not allow privatization of groundwater and negates its absolute individualized ownership
(Raya in Shuval, 2007:286 and ss.). Thus, water remains public and under governmental control; and in
the case of Syria and Lebanon, water is inalienable and imprescriptible.
The idea that groundwater for drinking purposes should be open to everybody is so strong in
Middle East that, even in the case of Palestine, where Israel has full control of water resources, Israel had
to leave some water available to Palestinians. This has been true since the occupation in 1967, until its
25
modification by the interim Palestinian-Israeli agreement in 1995. By then, Israel had to leave at least
scarce shallow wells for the Palestinians to use, while keeping under Israeli control deep wells for its own
population and benefit (Raya in Shuval, 2007:296 et seq. and Haddad in Shuval, 2007: 41 et seq.).
Whether the Majelle is preserved or substituted with new laws (as in the case of Israel and
Jordan), Israel, Jordan, Lebanon, and Syria have created a system of licenses and permits for defining
allocation of water.
In Europe, even though riparian rights can be adjudicated to the owners of overlying land, the
approach of integrated management has increased legislative restrictions on overlying land owners since
the late 1980’s. They have worked to put groundwater into the public domain to facilitate the use of water
in the pubic interest (Hayton, 1982). Thus, governments recognize that groundwater needs special
regulation and administration and that there is work to be done to change the collective mind about the
use of groundwater. The tasks include to keep the law updated with better information, and to change the
minds of judges and high-level bureaucracy about the need of integral management of water. This
reminds us that PR define both relationships among people, and relationships among people with respect
to things (Singer, 2014:150). Economic and legal approaches of PR agree that PR are social products. PR
change by people’s actions, while their protection depends on how they are defined and classified, their
transferability depends on the methods used to allocate them, and the assignation of properties is
associated with the interrelation of people and objects (Provencher & Burt, 1994:877: Ross, 2010; Cole &
Grossman, 2002).
1.5 The Public Trust Doctrine and Water Administration
Public trust doctrine provides an important justification for government intervention in water
administration and governance. It is argued that no other legal doctrine protects the basic social interests
of liberalizing fundamental public interest without creating monopolies or other significant negative
social impacts, reserving natural resources and natural wonders for all members of society, and ensuring
that certain common goods have only usufructuary ownership (Sax, 1970: 484f).
26
The roots of this doctrine go back to Roman law, which treated flowing water as a common
property and open to all. The Roman idea came to the American Continent via the English and Spanish
laws, and preserved the idea that some goods should be open to all (Sax, 1970).
Under this perspective the government is obliged either to provide certain services or to impose
adjudicative and enforcement mechanisms. In the former case, the legal framework regularly recognizes
interests and obligations; in the latter, there are specific institutions (as norms and as organizations), or
resources held in trust for the social benefit (Larson, 2013: 2185f).
Applying public trust doctrine to water, the citizens are the beneficiaries, water the trust, and the
government the trustee. The trustee has the duty of managing the trust in perpetuity to preserve its assets
and to fulfill the purposes of the trust. Thus, the state cannot dispose the trust or trust assets to the
detriment of the beneficiaries, and at the same time it should fulfill current and future needs (Tuholske,
2008).
In the US, the Supreme Court has not federalized the public trust doctrine, so it remains a state
issue. In Europe, it has been applied on a case-by-case basis. In some cases judicial adoption has been a
viable way to protect water and common resources while founded on state constitutions; in other cases,
legislation has been the avenue to adopt public trust (id supra: 230).
While apologists for the public trust doctrine see it as an adequate tool to manage water as a
common good, critics see it as a vile tool to attack private property. Where advocates see benefits of using
public trust as a tool to protect sustainable use of water and to ensure responsible development, critics see
it as an inadequate tool to address environmental concerns that are better addressed by environmental
laws.
In the meantime, several studies show that inadequate regulation of environmental issues does not
reflect contemporary concerns on water. The regulatory gaps allow dangerous practices with huge social
and environmental impact on water, such as fracking, contamination of rivers and lakes due to mining,
and production of negative externalities from extractive industries. In many cases the regulation not only
comes late but is vague, and the enforcement is practically null (see Bukac, 2015; UN, 2013a:76,
27
2013b:65 2012:58). To make things worse, in the US, the Supreme Court does not have much interest in
ensuring adequate legislation (Tuholske, 2008). Of course, deep thinkers would ask if the Supreme Court
and Congress are capable of providing adequate legislation. In the case of the US, the National Clean Air
Act of 1970 enabled strong enforcement of existing legislation and court orders, resulting in an
implementation plan that significantly reduced air pollution in Los Angeles. Part of the challenge in
convincing Congress to create adequate regulation is to find the right coalitions and alliances that will
generate the needed pressure and trigger a change.
From a practical approach, almost half a century ago analysts asked if the public trust creates
rights on a common good by making it inalienable, perpetual, and unchangeable in use while in hands of
governments, or if it just provides a consistent authority with policy power but no power to exclude (Sax,
1970: 477). The lack of response comes, in part, from the lack of clarity in the legal framework about the
government’s basic role and limitations, and because the question itself has been avoided in most of the
current debates.
Other analysts predict that, as the problems for protecting community values increase and the
market keeps overlooking them, the importance of the public trust doctrine will rise. In a way, the public
trust doctrine is enhancing and updating the limitations reflected in the prior appropriation doctrine, and
in schemes of water markets, and works as a balance between public and private interest in water (Ingram
and Oggings, 1992:516f).
1.5.1 Water as a Human Right
Another reason for government to participate in the provision of water comes from being cosigner
of international accords that define water as a human right. The agreements affect countries’ legal
frameworks and impose affirmative obligations. The cosigning governments are required to take actions
not only to ensure the provision of water but also to define basic questions of water appropriation,
adjudication, and financing, mainly when legal appropriation does not follow de facto appropriation of
water.
28
Arguments in favor of tagging water as a human right have been welcomed because it is thought
this will promote equity, priority, and accountability. The basic arguments are that making water a
human right aims to benefit the prioritization of water policies by labeling it as a right, promoting
equality, and facilitating government accountability, counteracting mismanagement (Larson, 2013: 2195).
A complementary argument is that government supplies certain goods and services because the
individual freedom to exploit and profit from those goods and services is trivial compared to the basic
governmental function of redistribution, as in the case of potable water. The resource is under
governmental administration in order to provide life with a basic human dignity (Mc Graw, 2010).
Compared to the view of water as a public trust, the history of water as a human right has only
forty years of existence and it has had full recognition for less than a decade. Nevertheless, it has attracted
a large amount of attention.
In 1966, and later in 1976, the International Covenant on Civil and Political Rights linked water
to the rights of life and health. This effort was also linked to human civil rights, policies that started in
1948 with the Universal Declaration of Human Rights. In 2002 the United Nations recognized water as a
human right, and in 2010, as many states voluntarily espoused the accord, the UN General Assembly
recognized the right to safe and clean water “as a human right as required for the full enjoyment of life”
(UN, 1948, 1966, 2003, 2010).
As part of its approach, the UN intends to provide an ample definition of water as human rights.
Human right to water “entitles everyone to sufficient, safe, acceptable, physically accessible, and
affordable water for personal and domestic uses” (UN, 2002:2). Water as a human right is also freedom,
covenants, and entitlements. Water as a freedom includes access to existing water supply; as covenants
these rights ensure sustainable, continuous, and equitable access to water resources, without arbitrary
disconnections or contamination of water; and the entitlements include a system of water supply and
management that provides fair access to water and without interference (UN, 2003).
29
To the UN, accessibility means to have adequate and reachable water facilities, with provision
that embraces all individuals, with affordable costs, and with full access to information concerning water
issues.
The UN assigns cosigner states three sets of obligations: to respect, to protect, and to fulfill water
as a human right. To respect means to refrain from interfering with the enjoyment of the right of water.
To protect denotes to prevent individuals, groups, or corporations from interfering with the right to water,
and to create proper legislation, effective monitoring, public participation, and a system of penalties for
non-compliance. To fulfill includes providing education for an adequate use of water and avoiding its
waste, and ensuring access to water when individuals or groups cannot help themselves (UN, 2002).
As is obvious, the UN’s approach has strong emphasis on equitable access to water and
sustainability, and requires access to effective judicial process. They should be available to resolve
violations of the rights to water and the UN opens the possibility to direct national and international
human right commissions and courts to address the violations of the right to water, or acts of omission by
the state, in order to receive proper reparations (UN, 2003). In order to assure implementation, the UN
prods state members to create a comprehensive water approach with ad hoc metrics to demonstrate
compliance to their legislation, strategies, plans, and policies.
It is important to notice that the UN endorsement of water as a human right has been used to
demand provision of water at all times, but the obligations have been distorted or, in the best cases,
misunderstood, mainly when advocating for affirmative action. Although core obligations are non-
derogable (cannot be suspended under any circumstance), regarding provision of water, they protect only
against arbitrary disconnection from the system of potable water. In other words, justified circumstances
may allow disconnection from the system—as in concordance with the criteria from the International
Human Rights Law, and recognized by the UN itself.
In addition, the UN proposal is not constrained to national boundaries. As part of the Covenant,
the UN prods signatory states to recognize international cooperation and assistance, and to avoid
interfering with the enjoyment of the right to water in other countries, imposing embargos, or creating
30
regional agreements that may jeopardize the human right to water (UN, 2003). Thus, states have the duty
to provide water, especially to disadvantaged people, to avoid any kind of discrimination, and not only to
move toward the full realization of the right to water but to avoid any measure that counteracts its full
realization. Moreover, the UN establishes that “no household should be denied the right to water on the
grounds of their housing or land status,” which as we will see later, in the case of MC, has extreme
repercussions on water systems in metropolises.
Despite its ambition, implementation of the UN’s approach encounters at least three major
challenges. First, national governments make the ultimate decisions on implementing water as a human
right, since even cosigners of the UN agreement are not bounded by it. The accord’s implementation has
been quite weak and shows that states have found ways to reinterpret the accord so as to avoid its
responsibilities. When open violations of water as a human right occur, the UN cannot force states to
comply with their responsibilities. For example, the case of Israel denying Palestinians the use of the
Jordan River Water, and even having absolute power over aquifers in the West Bank and Gaza Strip,
shows the limitations of the accord (see Shuval and Dweik, 2007). Worse still, until now many
industrialized states, including the US, oppose water as a human right.
Second, the UN accord has created a dilemma for national governments without providing
options to solve it. The implementation of the accord, at least in Latin America and Asia, has shown that
financing water systems with money provided by foreign investors has raised the contradiction of interest
between the human right to water and interest of these foreign investors. For example, conflicts on water
tariffs in Bolivia and Argentina unveiled governments’ dilemmas between defending the right to water or
protecting the foreign investment covered by accords embraced for most South American states since the
1990’s. The issue demonstrates the structural problem of the international regulatory framework being
treated as closer to private law than to public law, and questions the limits between the states’ sovereignty
and their local arbitrary decisions. It raises concerns of submitting the governance of its territory and
domestic issues to international courts (as the pertinent arbitration regarding adjudication of permits and
31
authorizations). The situation also raises questions about defining what should be kept in the public or
private spheres of intervention (Echaide, 2014).
Third, the sanguine approach to water rights seems to be unachievable at present. The UN itself
recognizes that the attributes that define water as a human right “are widely violated” (UNDP, 2006:9). A
common problem of implementation is that governments have no strong policing power in pricing and
investment. The skepticism comes from the assumption that state and international law are able to create a
fair forum for local conflict resolution, especially when it seems to be two autonomous and independent
regimes: an international design and wide discretional governmental power to implement it. While the
UN focuses on sufficient and continuous provision of clean water, most of the quality tests use outdated
organoleptic tests, but the pollution of water has become more complex and sophisticated. While the UN
focuses on fair accessibility to water, including physical, economic, non-discriminatory, and
informational accessibility, it does not set standards to be achieved in those areas.
Moreover, the realization of water as a human right is costly, and the UN accord leaves
unanswered how to pay for it. The good intentions of the UN, prodding international financial
organizations to ensure the right to water, collides with the World Bank and the International Monetary
Found market policies, which prescribe defining water as a commodity. Additionally, the UN policy does
not make clear how to finance the provision of the minimum daily per capita provision of water—50 liters
as international agencies suggest, or at least 20 liters if provided through communal facilities within a
kilometer of the household (WHO, 2003:1,27; UN, 2006:34). This point is basic, particularly since states
have no duty to prioritize water expenditures over other kinds of expenditures; in many cases there is a
gap in local legislation to fulfill the international contracted obligations. The UN only suggests to invest
as much as possible, but how to price water is still a black box for the moment.
While the human right to water can be seen as a provision right, what it has left behind are the
mechanisms to tell us how to provide adjudicative and enforcement mechanisms, and there are not many
precedents. For example, in Latin America, where allocation of quality water does not necessarily follow
the legal property rights, the UN does not define what to do when the discrepancy appears. Escalating the
32
problem to international courts is no guarantee of adequate solutions either, since they usually rely more
on private law than public law. The UN does not tell us how to provide high-quality water at affordable
cost and at all times, especially when the ownership of sources of water is in conflict. In addition, the
minimum investment of states for provision for potable water, whether self-determined by states or
imposed, is a blind point in the UN accord.
The commendable part of the UN approach is that it recognizes water as a public good, a limited
resource, something fundamental for life and health, and a substance essential for providing a dignified
human life. It also recognizes that water’s depletion and unequal distribution promotes poverty (UN,
2003). More importantly, it recognizes water as a social and cultural good rather than just an economic
good or mere commodity. Thus, the definition of water as a human right entails more a conceptual-
indicative definition than an exhaustive definition.
Underlying this is the lack of conditions for implementing water as a human right. In a market
society, where everything can be sold and bought, there are many institutional changes to be made before
we can talk about effective implementation. Economists must understand that water as a human right
demands the allocation of goods and services that do not follow market rules. Until then, the intervention
of the state with its normative approach will be the way to create and to impose rights rather than just to
promote commodities.
1.5.2 Water as a Public and Private Good
As previously analyzed, the government has the power to affect all kinds of property for public
benefit reasons. The shift by which the governments keep a good or service private or public is quite
simple: governments move goods and services from being excludable to non-excludable or maintain them
in the latter condition.
In general, private investors do not invest in non-excludable goods and services because they
become open to all and investors cannot enforce payments. The best option for privatization is to try to
33
move the good or service to be excludable and rival; thus, when a consumer is using a good or service it
cannot be used by anybody else at the same time, as in the case of a bicycle or of a bottle of water.
If governments move the good or service to be non-rival, then access to the good or service is
limited. The good or service can be used by more than one user at a time, as in clubs (with access to the
club restricted to members), or in the case of irrigation systems in which members can consume water but
outsiders are banned from using it.
When governments move or maintain the good or service as non-excludable, the good or service
stays as public. If the good is rival (the consumption of some actors preclude other actors form using the
same resource), and non-excludable, it is what we know as commons or common good with open access,
as in the case of crowded city streets or aquifers.
A good or service is known as pure public good when is both non-excludable and non-rival.
Some well-known examples are the provision of national security, the enjoyment of fireworks, or the
provision of water for drinking purposes as under the Majelle code (in which all citizens have access, and
the use by some citizens does not preclude other fellow citizens from use as well). Despite the fact that in
these cases there is no reason to exclude users, there are problems in creating clear rules of use, mainly
when the unregulated use of public goods leads to their destruction. Table 1 summarizes the above
described classification.
Kind of private or
public goods
Excludable Non-excludable
Rival Pure private goods: a bicycle, a
bottle of water.
Common goods with open access:
crowded city streets, aquifers.
Non-rival Club goods: concert, movie theaters,
toll roads, irrigation systems
Pure public goods: large public park,
national defense
Table 1 Pubic and Private goods
Source: Based on Ostrom and Ostrom,1977; Ostrom, 2005.
From the previous table it is important to notice that, as the access to water is moving from non-
excludable to excludable, conditions for accessing the good or service increase as long as there is an agent
with the power to restrict access. When the conditions of access move toward rivalry, the consumption of
a good or a service by some actors precludes other actors from using the same resource, to the point at
34
which total exclusion and rivalry defines pure private goods or services. On the other hand, if the good or
service is open to everyone and the use by some people does not prevent other people from using them,
then we have pure public goods and services.
The concept of maintaining a good or service as public or private is simple but the shift among
kinds of appropriation demands the interaction of complex organizations, institutions, relations, and
structures among actors and their environments. These interactions require case-by-case approaches and
analyses, mainly because the processes are not unidirectional, and can be reversed according to the
national or regional policies.
35
Chapter 2: Provision of Water to Metropolitan Areas
A central argument about the provision of municipal services, the development of metropolitan
policies, and major systems of services like water provision, is that they are best coordinated across a
metropolitan or regional area rather than within municipal or city boundaries. This is because there are
several agents that have the power to make decisions and to impose conditions in territories that transcend
political borders (Hamilton, 2013; Kuditshini, 2008; Hewitt, 1998).
Another important reason to support the assertion is that municipalities do not have all the
resources they need within their jurisdictions. For example, natural resources are not limited to specific
physical boundaries, financing municipal services has been always a limitation for the provision of high
quality services, and legal constraints for local government to rule beyond their jurisdictions are often in
the way of municipal intervention.
Since self-sufficiency is not possible, the solution is to cooperate and coordinate for the
production of goods and services needed. Cooperation can allow complex exchange; conceded
municipalities are able to overcome their differences (Ferguson, 2013:27; Moe, 1984:750).
Additionally, there is agreement among scholars and practitioners that an individual local
government cannot address metropolitan systems. These systems can be designed efficiently only with
multilevel government participation in their planning, financing, and implementation. Unfortunately,
there are no clear answers to what the determinants of metropolitan collaborative actions are, or why
cooperation emerges and transforms, and the way to solve the limitation is to find out the most influential
factors in shaping cooperative relationships, or the lack of, through empirical studies (Nelles, 2012;
Callahan, 2007).
Thus, this chapter presents the analysis of the components of modern water systems, the phases of
urban water systems, and the challenges for provision of potable water to metropolitan areas.
36
It also contains the rationale for governmental intervention to a metropolitan scale for water
administration. The last part contains lessons from metropolises regarding intergovernmental responses
for the provision of public services and common goods, and for the need for multilevel governance based
on cooperation and coordination. The information in this chapter sets the bases for the analysis of the
components of Mexico City’s water system.
2.1 Components of Water Systems
Since early urbanization, water systems used surface water as a first resource of provision. A
central reason for that was the convenience of direct access, and that nearby surface water did not need
investment for production of water for human consumption. In areas where there was not enough surface
water, groundwater was important, frequently with the advantage of being of higher quality than surface
water.
As settlements were evolving and urbanization became more complex, their water consumption
increased. Not only did human clustering demand more water in the same location, but the use of water
was diversified, and the elementary water systems became a complex network of subsystems with two
main components: a network of provision for potable water and a network of waste water disposal.
In some cases ancient cities became metropolises (Tenochtitlán-Mexico City), in others, towns
became metropolises (Los Angeles), or even cities grew from nowhere (Las Vegas). In any case, it is
accepted that the bigger and the more complex the urban area is, the more water is needed.
Water consumption increased not only due to the amount of water directly used for human
consumption but also due to water needed for the production of goods and services. Urban areas became
more sophisticated and, while providing higher urban living standards, they created more complex
environments. Increasing volumes of water were needed, as was more water-related infrastructure. For
example, the need of power for the use of current technologies led to hydraulic production of power, so
bigger and more dams were built.
37
Thus, the basic water systems demanded infrastructure to capture water from its original location,
to transport it, to deliver it into a few locations, and to distribute it for final consumption. As water
demands increased and higher quality water was required for different purposes, a subsystem of
purification was included, and also a subsystem of sewer, wastewater treatment, and a final disposal
network were added to the system of potable water.
Nowadays the basic concept of using water is the same as the one used centuries ago: the location
of a source of water, the transportation of water to where is needed, and its final delivery. A difference
between old systems of water provision and modern systems is that the sources of provision are located
further in the case of surface water, and deeper in the case of groundwater. This circumstance has
impacted two valuable attributes: quantity and quality of water. Additionally, a process of recycling and
reusing has been added in some cases, as well as water treatment before its final disposal.
Thus, a modern water system is divided into two main parts, the potable water system and the
waste water system as shown in figure 1. For the purpose of this research I will focus only in the potable
water system, which is located in the left side of figure 1. The analysis will cover half of the potable water
system or the provision for potable water.
38
Figure 1 Components of a Modern Water System
Source: Author
2.1.1 Modern water systems
A potable water distribution system is a network of physical elements and its infrastructure of
control, human and technological, to convey volumes of water from natural water sources to produce
potable water for final consumers. The system generally starts in a natural water body or waterway and
ends at the delivery point of the pipe’s network.
The elementary or fundamental phases of an urban water system are production, conduction,
storage, treatment or processing, distribution, and delivery. Production alludes to the structures and
facilities to secure the appropriation of water where the water originates. Conduction refers to the control
over canals, siphons, aqueducts, and primary lines of transfer from the sources where the water supply
originates, passing through the processing treatment plants, and to the point of delivery to the local
operational agencies. Storage is the control of water flow from dams and reservoirs located along the
systems of provision of water. Process refers to performing operations on water obtained from natural
sources, resulting in potable water according to quality standards for human consumption and authorized
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39
water uses. Distribution is the local network or secondary lines that connects water from the treatment
systems to the points of delivery to the ultimate consumers, and Delivery refers to the points where the
secondary lines end and from which the ultimate user obtains the water.
Even though the general model of a system of water is simple, the interaction of its components
and operation are highly complex because they depend on local conditions and on the visions a
community has on water. For example, a variable that adds complexity is the multiple visions of water:
water as a right versus as a commodity, a technical issue versus a cultural issue, a political issue versus a
social or financial issue, water under public or under private ownership, and water as a national
sovereignty issue versus municipal autonomy. Thus, water becomes a controversial matter between
national policy designs and local implementations.
All of the above has created a balance—one that has not yet been solved—of how relevant actors
concur with a common interest while creating a convenient and adequate administration of water at a
metropolitan scale. From the engineering perspective, the problem of providing secure and efficient low-
cost water systems, usually attempted by designing infrastructure in terms of extreme stochastic
situations, is challenged. At an operational level, current climate change is challenging the traditional
design of providing hydraulic infrastructure that covers conditions for a return period of an event (like a
50-year flood). Moreover, at least, “air temperature and precipitation are increasing in both magnitude
and durations” (Maksimovic et al, 2015: 5), leading to flooding and deteriorating streams, making the
infrastructure insufficient and insecure.
From the distributive point of view, the problem of a water system is related to the apportionment
of water coming from regionally located basins and aquifers. Then, the water should be distributed among
users located near the sources of water, along the networks of distribution, and among final consumers,
especially when the limited resource does not suffice to cover the needs of everyone at the same time. At
a regional level, there are several actors claiming water rights, and owners of original property rights face
growing pressures to divert water for urban uses within an ongoing process of urbanization. In many
cases, this relocation of WPR happens as a result of processes that are less than clear and fair. Thus, the
40
criteria and response for achieving common regional and local goals regarding water apportionment is
still an enigma.
From the decision-making perspective an urgent and unsolved problem is the administration of
water at a metropolitan level. Since in most cases water provision for metropolitan areas need water
transfers that come from beyond the municipalities, county, or state boundaries— or goes through them—
and those boundaries do not match the metropolises’ political boundaries, several relevant actors (public,
private, and social)., with decision power over water resources need to have agreements on water
administration to provide enough, safe, and continuous potable water to metropolises. In many cases not
even a first grade of governance is yet defined (who owns what), in other cases actors need to define a
second degree of governance (what policies are needed, who does what, and with what resources) (for
concept see Hertie, 2013).
2.2 Metropolitan Provision of Water
The provision of potable water in metropolitan areas is intrinsically related to the idea of adequate
water administration that leads us to deal with two crucial factors: the governance of multijurisdictional
territories and the argument of intergovernmental and inter-institutional collaboration.
In addition to the arguments for government intervention for the control and administration of
common goods analyzed in the previous chapter, the arguments for governmental intervention to a
metropolitan scale for water administration purposes can be summarized into three approaches. First, the
structuralist thesis asserts that the main actor must be the public sector (R &T, Barlow, Le Roux). This
approach includes the welfare state theory that advocates intervention by the state both to compensate for
market failures and to bring about positive economic outcomes (Loughlin, 2007).
The second approach is the neoclassic antithesis (privatization) in which public-private
partnership is seen as a discourse for creating a new space for the corporate sector, an idea strongly
promoted by international agencies (OECD, 2012, 2013; Kuditshini, 2008; Rouet and Tawa, 2009). In
this case, the goal is to compensate not only for market failures but also for the failure of the state.
41
Moreover, in an entrepreneurial, market-oriented society, the challenge includes finding effective models
of governance that include identifying a driver to make the solution appealing to markets—as in the case
of Los Angeles (Mazmanian, 2009), where air pollution proved to be the driver for Federal-state-local
collaboration, although the process to find the driver is neither easy nor fast.
The third approach is the institutional approach that emphasizes good governance (Rouet and
Tawa, 2009; Le Roux, 2010). A common argument is that the institutional approach might enhance
democratic control.
Defining which of the above approaches works better in metropolitan areas is a matter of an
ongoing debate amongst scholars, politicians, and policy-makers because there is not one-size-fits-all
solution, for governance in general and for the provision of public services in particular, which demand
case-by-case analyses within the framework of contextual, historical, and cultural factors.
One of the problems in generating consistent solutions to metropolitan provision of municipal
services is that big metropolitan areas or megacities seem to challenge the linearity of causality the
Cartesian rational approach, which tries to prove that the right set of institutions plus incentives equals
political and economic efficacy.
The analysis of metropolitan areas escapes the logical consistency in which scholars and policy
makers try to enclose it, and shows us that real life does not correspond to that model, that the idea of
progressive, linear, and accumulative development is not always valid. The model sometimes works in a
context where institutions tend to slowly adjust to changing realities, but real life also demands including
situations when changes are punctuated by revolutions in an heterogeneous area, or as the product of
external factors that trigger the creation of solutions to a metropolitan problems.
Small administrative and political units integrate Metropolitan areas, and their configuration
influences public and private policy decisions. (Feiock, 2004). As Travers (2004) asserts while studying
London, size matters, and not only because of its physical size but also because the attitude of the
stakeholders is related to the size of the group. In the case of metropolises, the number of stakeholders
tends to be big.
42
Small groups can provide themselves with public goods without relying on coercion or
governmental intervention because the provision can be granted by voluntary self-interest or because
there is at least one member that may find personally advantageous paying for the whole production
rather than not having it at all. In large groups this is not the case; the common good will not be provided
without coercion to prod members to act in their own interest (Olson, 1968: 44; Ostrom, 1990). But even
if we accept the exception that in some large groups with members having unequal interest in the
common good, when the collective good is significantly more valuable than its costs, these costs can still
be granted by a single individual (Olson,1968: 45), we realize that, as the size of the group increases, the
previous assertion for large groups becomes true because the burden is unbearable for a single player in
the long run. The rationale for governmental intervention in small groups is that, in practice, small groups
do not always proportionally share costs and benefits, making the benefits of a few the costs of many
individuals; thus, the state needs to intervene and to apply the principle of redistribution.
As the group becomes larger it becomes more difficult to fulfill its needs for any collective good,
and more difficult for its members to act collectively in order to obtain the minimum amount needed
(Olson, 1968). (“Larger” is not defined mainly by number of members; it is understood as the group’s
tendency to fail the self provision of a common good by itself, because individuals find the values of the
gains to be lower than the costs of what is provided.) In any case, whether we deal with small or large
groups, in the long run the collective good cannot be obtained without any agreement, coordination, or
organization. More importantly, the larger the group the more agreements are needed and more costly the
organization is, to the point that the higher the absolute costs the less likely the group is to engage on
voluntary participation, and the more enforcement is needed (Olson 1968:46-48).
In synthesis, it is accepted that the larger the group: a) the smaller are the interests of individuals
favoring collective interests, b) the smaller is the interest of engaging in oligopolistic interaction to obtain
the common good, c) the more costly is the organization of the group, and d) the higher is the number of
agreements, accords, and contracts. Thus, the higher their complexity and more costly its implementation.
The previous conditions make a case for the need of a third party or the presence of an agent to prod
43
individuals to participate and to treat them differently based on their contributions. Thus, we find support
for the argument of having a powerful entity, usually the government, to enforce agreements, and the
controversy on how to do it and the scope of that powerful entity participation.
The size of the group is not only related to the organization as a whole but also to the self-
perception of its members. It is argued that individuals in large groups do not engage in the group interest
since they may feel that their contribution does not make a difference in the results attained. This
perception is reinforced by the idea that the benefit of their efforts will go to the prearranged benefit of
the rest of the stakeholders whether they participate of not, or because the size and complexity of the
group is just overwhelming (Olson, 1968: 196; Ostrom, 1990). Of course, this line of thought follows the
bounded-rationalist and selfish individuals attached to their own economic benefit under the economic
status quo, but there may be exceptions granted by social recognition.
What economic and political theories assert is that social recognition does not work in big groups;
rather, it is the result of the conjunction of small groups (Olson, 1968). Moreover, federal policies are
generally designed within a top-down approach, which makes the whole nation a big entity, but the
implementation of those policies demands the participation of small political and administrative units. In
other words, the implementation of effective public policies is a matter of collective action in local
settings performed by small groups, but the optimal size of those small groups is not clear because
extreme fragmentation is also seen as a source of urban problems (Mitchell-Weaver et al, 2000), and
“extreme” is a highly subjective term.
The conjunction of top-down design and bottom-up implementation can merge but we still do not
know how to do it. In a seminal paper Tiebout (1956) pointed out the importance of decentralized
structures of metropolitan governance. He asserted that what government attempts is to force citizen-
voters to reveal their preferences for public goods in order to provide them in the right amount; and then,
to create the appropriate tax.
The problem with Tiebout’s approach is that, as he recognized, governments deal with rational
consumers who will conceal their preferences in order to avoid the tax, and there are no mechanisms to
44
force citizens to revel their true preferences. The closest we can get to know their preferences is within an
ambiance where the greater the number of communities and the greater the differences, the more likely
the citizens will show their real preferences (Tiebout, 1956: 417 ff.). The solution of how to engage
individuals in large groups to act in their own benefit is still an on-going debate.
2.2.1 The Predicament of Metropolitan Boundaries
Metropolises challenge a central principle for designing long enduring common pool resources: to
have clearly defined boundaries in order to match provision and appropriation (Ostrom, 1990: 90).
As a mobile target, metropolises redefine their boundaries, and with it, they define the actors with
decision power over the provision of municipal services. Those changes sometimes happen quickly and
the impact on WPR may be important in the short run—and create differed effects in the long run. An
example is the case of Greater London, which had 52 boroughs in 1960 and, two years later, reorganized
to 32 boroughs, including a change in the Greater London boundaries.
In terms of intergovernmental interaction for the provision of public services and common goods,
the challenge is to find adequate responses to both dilemmas: the participation and role of central
governments, and how local authorities manage growing interdependency (Nelles, 2012a). Therefore, the
challenge is to understand how governance structures can be effectively established to coordinate policies
across local boundaries or what are the factors that hamper it.
In America, common solutions to the previous problems have been performed in three ways: 1) to
do nothing while encouraging intergovernmental competition and fragmentation, 2) institutional reform
(which has had strong influence through multinational corporations’ intervention in developing countries
while influencing governance models, (OECD, 2013; Reed, 2002; WB, 2004), and 3) to create layers of
additional authorities and special purpose districts to coordinate across local boundaries (Nelles, 2012a;
Jones, 1997; Mazmanian, 2009).
Another common solution to metropolitan problems has been the reduction of municipalities as in
Germany, the U.K., Sweden, and Canada where amalgamation is a current solution (Nelles, 2012). The
45
idea behind amalgamation is that regional governments can better promote economic development,
reduce inequality, and address externalities (Hutcheson & Prather, 1979; Feiock, 2004). Nevertheless, it is
not clear if institutional consolidation is correlated with the improvement of governance and providing
better services, because the final results depend on the context (Nelles, 2012a)
In the case of France, municipal collaboration has a long history starting with inter-municipal
associations in the 1890’s, but the reduction of municipalities has been impossible. After a constitutional
amendment in 2003, France became a decentralized Republic (Republic descentralisée), and from there,
municipal cooperation has been mandatory—although not fully implemented. Obligatory collaboration
happens when two thirds of the municipalities within a defined inter-municipal boundary agree to
cooperate, and other municipalities do not agree to participate. In that case the prefect (a regional
authority) has the power to force those municipalities to collaborate (Loughlin, 2012; Nelles, 2012).
This situation in France makes a case not only to invalidate the popular idea in American status
quo scholars and practitioners that cooperation must be voluntary and cannot be established by upper
levels of government (by comparing, see Nells, 2012: 9 and Loughlin, 2012: 93 ff.), but also to remind us
that good solutions are contextual.
Since 1999 the French approach to metropolitan governance has been to create inter-municipal
partnerships to promote the implementation of actions that go beyond municipal boundaries (see
Chevénement Law and Voynet Law). Under a demographic criterion the laws have concentrated efforts
on creating new authorities with decision power, creating adequate legislative frameworks and financial
incentives to provide municipal independency.
Whether we talk about US or European approaches, the two important factors in the current
debate on provision of common goods and municipal services emphasize the role of central governments,
which demands more involvement in the process of the reshaping metropolitan areas and their governance
(Loughlin, 2012; Nelles, 2012; Feiock, 2008).
46
2.2.2 Multijurisdictionality, Cooperation, and Coordination
Until now advocates for halting metropolises’ growing and expansion have failed but the idea of
contention is still luring scholars and practitioners. At the same time the main discussion has shifted to try
to understand metropolises as a mobile targets while managing their growth and needs.
From the theoretical point of view, scholars argue that metropolises are environments of growing
complexity and interrelation whose problems are beyond single entities’ capabilities to handle. More than
fifty years ago Vincent Ostrom thought of metropolises as non-entities where governments provide goods
and services in an area that basically is a set of federal, state, and local agencies, counties, cities and
special districts that make decisions (Ostrom, et al, 1961).
In the case of the US, the early idea of metropolitan regionalism from the 19
th
Century became
the current multilevel government intervention approach. Whether the approach aims to guide urban
sprawl or to contend with it, multilevel governance advocates the idea that federal and state government
must reinforce the performance of local governments for successful implementation of metropolitan
policies (Mitchel-Weaver et al., 2000).
The OECD also agrees that the multiplicity of agents with decision power is affecting the control
of multijurisdictional territories and the provision of municipal services. It is mainly the lack of clear
responsibilities for each level of government that challenges multilevel governance and the success of
attaining an adequate provision of regional water services. The OECD also asserts that an effective
process of government decentralization, with more “co-operation and participation in supply chains and
distribution networks,” is needed (OECD, 2008: 415, 2015).
The corollary of this analysis is that, in order to face the challenges that metropolises represent,
there is agreement among practitioners and scholars that cooperation is needed.
It is also argued that a greater social reward is obtained through mutual cooperation and
coordination, which generate more beneficial solutions. Moreover, there is the argument that cooperation
and coordination present opportunities to reduce costs and opportunities to overcome inefficiencies while
maximizing the advantages of economies of scale (Alexander, 1993; Abele, Stasser, & Chartier, 2010;
47
Bae & Feiock, 2012; Kwon & Feiock, 2010). Cooperation becomes an option to approaches based on
centralization and control that are proved to be inefficient in situation where ignoring multiplicity and
diversity is not an option, because consensus and collaborative processes are needed (Innes & Booher,
1999: 153; Scott, 1998).
Cooperation also allows small players to have the opportunity to participate in upper levels of
government where small municipalities and institutions are weak. So, collaboration helps to create a
critical mass to resist impositions, while creating a sense of identity. This seems to be one of its more
important advantages (Nelles, 2012), because it constitutes a solution of the current problem of lack of
recognition of metropolitan phenomena, highly cited by scholars (Eibenschutz, 2010; Iracheta, 2006,
2009).
From a pragmatic point of view, collaboration leads us to solve the problem of legitimization. It is
an option that central governments use to validate the intervention of upper level government and federal
institutions due to the deficiencies of local governments. The French perspective argues that
municipalities are too small both to fulfill their constitutional duties and to deal with complex problems
that go beyond their boundaries, so that collaboration is needed. Not surprisingly, the Mexican Federal
government makes the same assumptions, due to municipalities’ lack of technical, financial, and
functional limitations, but the mechanisms and processes that produce that outcome are still not clear. A
common implicit argument in this approach, from the political perspective, is that collaboration
contributes to legitimacy because it brings equal opportunities for the parts involved.
Since the continuing expansion of cities is a current phenomenon recognized by scholars and
policy makers, the redefinition of city limits has become an ongoing problem because it is related to
understanding how governance structures can be effectively established to coordinate policy across
boundaries where players deflect each other and fight for their own sovereignty. An implicit or explicit
claim is that metropolises cannot be self-governed due to their constant territorial redefinition (Nelles,
2012; Sancton, 2008).
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Under the concept of institutional collective action, collaboration is seen not only as a solution to
the problem of political fragmentation but to the fragmentation of services and policies (Travers, 2004).
Collaboration helps to solve issues of multiple interactions; it informs managers, policy makers, and local
officials about how to reduce risks while helping to solve conflicts and standoffs (Bae & Feiock, 2012).
Besides having agreement on the benefits from governmental cooperation and collaboration, the
factors that bolster or hamper their existence is not yet clear. Helping clarify the institutional factors,
whether as organizations or as rules, that promote or hamper the creation of both an adequate provision of
potable water to Mexico City, and the creation of cooperation and coordination among different orders of
government in charge of water provision, is the goal of the upcoming chapters.
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Chapter 3: Governmental Decision Making in Mexico
3.1 The Decision Making Process
This section presents the governmental agents with decision power in Mexico. It also explains
their attributions and responsibilities and how they execute these responsibilities. The information
presented will build up the language needed to understand the processes related to the management and
administration of common pool resources as in the case of the provision of potable water to MC.
This language is needed to understand the fact that, on the one hand, the Mexican Constitution
does not recognize intermediate governments between municipalities, states, and the Republic; on the
other hand, legislators, municipalities, and citizens have been reticent to legislate amalgamation, the
former due to issues related to municipal self-determination and independency, and the latter due to
strong cultural attachments. Therefore, a recurrent solution to regional problems has been, as mican case,
the creation of interagency and municipal collaboration.
Following this path, in the past two decades many inter-municipal agreements have been formed
to begin solving problems affecting Mexico City, many of them based on voluntary participation. These
have shown very limited positive results. Mexico City has regional plans, metropolitan plans, city plans,
institutional plans, and programs at all levels—from national to regional, municipal, and borough levels—
but somehow there are factors that create inconsistencies in metropolitan, inter-municipal, and inter-
institutional collaboration. The information presented will help to understand the legal bases for the
creation of that legal framework.
3.2 The Legislative Power
Mexico has a presidential system with division of three powers: legislative, executive, and
judicial.
Legislation in Mexico is a bicameral collective action. The two chambers (Senate and Chamber
of Representatives) work under formal laws and rules, and also under consuetudinary procedures
50
(procedures established by custom but with time they became recognized as having legal force). Both
chambers have the same duties and privileges but representatives stay in office half as long as senators (3
years).
The Mexican Congress has independence and, in some cases, autonomy. The former is related to
financial and administrative independency, and autonomy provides personal and territorial immunity to
senators and representatives.
3.2.1 Constituency
There are four permanent senators per state and 128 total. In each state, two senators are from the
party with majority of votes, one from the first party of opposition, and one is appointed due to
“representación proporcional” (proportional representation). In addition, each elected senator has a
substitute to cover her or his absences.
In the case of the Chamber of Representatives, there are 500 representatives. Three hundred are
elected, and two hundred are appointed by proportional representation. The process shows the power of
political parties regarding the election of representatives rather than the power of citizens electing all of
the representatives.
The Senate and Chamber of Representatives are organized in permanent and special committees
or subcommittees. Special commissions or subcommittees are restricted to 15 members in the House of
Representatives, and the Senate defines the maximum senators for each committee.
Congress is formed by the two Chambers and meets in Mexico City. The quorum needed to run a
session is an absolute majority. A relevant weakness of this process, cited by attorneys and scholars, is
that decisions affecting states can be made without the presence of the senator of that state (Arteaga,
2013). The standing rules for the Senate do not establish the quorum for the Permanent Committee—that
portion of the legislature that works when Congress is not in session—but consuetudinary procedures
demand an absolute majority of its 37 members. In the case of working committees, the Senate allows a
51
maximum of 15 members. The Chamber of Representatives also has working committees, limited to no
more than 30 representatives.
Committees are the core elements that analyze, study, and evaluate constitutional amendments
and other federal issues, and the Senate must approve the committees’ proposals. The Senate itself can
order information from federal entities, but not from any other entities; if the entity decides not to provide
the information, the Senate has no power to compel it, and the top official of the entity (or the President)
can make the final decision as to whether or not the information is provided.
3.2.2 Attributes and privileges
Legislative power in Mexico not only produces laws and decrees, but also has executive power
(exercising its own budget and appointing committees and internal positions), and jurisdictional power
(performing public servants’ trials). Under specific conditions the legislature can delegate its legislative
power but it never delegates its executive and jurisdictional powers.
3.2.3 Constitutional Amendments
The initiative for constitutional amendments must go through the proper committees under the
current rules of the Senate and House of Representatives. A constitutional amendment requires a two-
thirds vote of the legislators who attend the session in each chamber to be approved, and the President of
the Republic has no veto power or power to make any change; the President gets the amendment only to
be promulgated (in terms of being publicized). Since the amendment has the quality of privileged
amendment, the local legislatures must amend state constitutions and municipal laws to match this new
amendment.
Local legislatures can only adopt or reject the constitutional amendment once is handed to them,
and must create a decree, whether to approve or reject the constitutional amendment. The decree must be
published in the official gazette. The decree, published or not, is then returned to Congress. This
procedure applies to all states; the Federal District cannot adopt or reject, and only has been granted the
ability to propose constitutional amendments to Congress.
52
State constitutions are amended by two-thirds of local legislators who attended the meeting in
which the vote was performed. Municipalities have the right to initiate the process of amendment and to
approve or reject the amendments passed by local legislatures. As in the case of the president and the
National Constitution amendments, governors have no power to veto or to modify the local constitution’s
amendment. While National Constitution amendments require bicameral approval, state constitutions can
be amended by the vote of one chamber.
The Mexican Constitution also allows legislation to be started by the President, states, or another
federal entity; this “secondary legislation” must be discussed in both Chambers and, if passed by both,
may be vetoed by the President (Arteaga, 2013:345; Mexican Const., Art. 72).
3.2.4 The Permanent Committee
La Comisión Permanente (the Permanent Committee) is a Congressional entity with limited
attributes and responsibilities. It has 37 members (19 representatives and 18 senators, and substitutes for
each of them) (Arteaga, 2013:394). It is formed when the two Chambers work as single assembly. It does
not work when the Chambers have their regular period of sessions, working only during the breaks
between sessions. It has executive powers but neither legislative nor jurisdictional powers. In order to
exercise those powers Congress needs an absolute majority of legislators attending the session in order to
approve the Permanent Committee’s resolutions (See Arteaga, 2013: 370 ff.).
To perform its responsibilities, the Permanent Committee can have up to three subcommittees,
each of whose number of members is defined by the full assembly. Unlike other countries where the
Supreme Court defines violations of responsibilities by public servants, and their penalties, in Mexico the
ultimate decision is a bicameral decision on public servants’ responsibilities and the decision is final, it
cannot be challenged. Thus, let us say that if a public servant is found guilty of violating his
responsibilities or violating rules and regulations but the bicameral legislature decides to exculpate her,
then the resolution will be final and the public servant will free to go. Therefore, a legal situation for a
high-level bureaucrat, regarding his public responsibilities, becomes a political situation.
53
Any authority in Mexico, in essence, can create mandatory regulations. Regulation can be general
and permanent as in the case of laws, and particular or temporary as in the case of decrees and sentences.
General regulations are decisions of the Senate and the Chamber of Representatives, while executives,
without veto power, must publish and enforce them. In Mexico, there is an established system to publicize
the laws, and once it is put to work, it is assumed that those who are affected by a particular law must
know it. By the same token, the amendments to laws (which in Mexico are crafted as decrees), or
cancellation of laws, should also be publicized. In the case of the states, the governors are in charge of the
publication, as are municipal councils in the case of municipalities. The publication of official and legal
notices in municipalities is a municipal council responsibility. Since 2011, if the President of Mexico does
not publish the law (promulgate the law), the president of the Chamber that initiated the law has the
authority to publish it in the nation’s official gazette (Arteaga, 2013: 383 f.).
In the case that Congress promulgates a law that conflicts with the constitution or with state laws
or FD laws, the veto, constitutional controversy, and process of unconstitutionality are available to rectify
the law.
When a proposal of law or a decree is not created by the Senate of the Chamber of
representatives, one chamber becomes the chamber of origin (first chamber), and the other chamber acts
as a reviewer (second chamber); in these cases the President has veto power. When the proposal for a law
is rejected as a whole by the second chamber or by the President, the process may be re-initiated; if the
second chamber rejects it again the proposal cannot be presented again in the same period of sessions. If
majority of members of the second chamber accepts the proposal, the project is handed to the President,
and the legislative process moves on.
If the proposal is rejected in part, the first chamber should only analyze the articles or the part that
was rejected, modified, or added by the second chamber. If the additions or amendments of the second
chamber are accepted by absolute majority of votes of the first chamber the project is handed to the
president and again, the process moves on.
54
In the cases when there are controversial points hindering the whole proposal, then by absolute
majority of votes of the two chambers, the proposal can be partially approved and become a law, while
setting aside the articles or part of the proposal that are controversial.
3.3 The Generic Executive Power
A generic executive power “…is any act by which a law, decree, or agreements is enforced”
(Arteaga, 2013: 415); those acts can be federal or local. At the federal level there are the President of the
Republic, the Congress, the Senate, the Chamber of Representatives, the Permanent Committee, and the
Supreme Court that hold generic executive power. At the local level, there are the governors and the
municipalities.
The President of the Republic has limited veto power that he can exercise during his six years in
office. Veto power only applies to legislative decisions for those proposals that were not started by either
of the two chambers. As in other countries, the veto power allows the president to make objections, ask
for complementary information, require amendments to legislative projects, or to counteract overlap of
functions and executive power that the president has been granted by the constitution.
In order to overrule the presidential veto, a two-thirds vote is required in each chamber. In the
case of the states, governors also have veto power over projects from local legislatures. In the case of the
FD, the mayor’s veto power is restricted to law but not to decrees.
Since 2012, the President not only has the prerogative of creating bills but he has been granted the
preferential initiative (iniciativa preferente), which means that bills presented by the President have
priority for their analysis, debate, and voting in Congress. The bills must be of bicameral interest and are
restricted to two bills per period of session (Arteaga, 2013:310 ff.).
The president has not only executive power, but also legislative power. The president has
extraordinary powers that allow the creation of orders, decrees, agreements, and regulations that, in a
way, substitute for congressional action, but responsibility for the implementation of those legal decisions
55
is assigned to the secretaries. Thus, countersigning is required in the cases of presidential orders, decrees,
agreements, and regulations, and the appropriate secretary must sign them (Mexican Constitution Art 92).
Of course from the practical side, whether or not a presidential decision is countersigned has
little relevance to a public servant who, by the hierarchical structure, is obliged to enforce it. But it is
relevant for presidential acts that strictly involve presidential faculties and acts that legally depend on the
president, and when the presidential power is exercised. Even though there are hierarchical
responsibilities between secretaries and the president, countersigning is important because it is correlated
to sanctions when the mandatory act is not enforced.
As part of the co-responsibility of written presidential decisions and the requirement of
countersignature to grant validity, in the case of primary laws, the countersignature of one of the Supreme
Court judges sharing the responsibility is required. In addition, the president has the attribution of creating
rules, decrees, agreements, and executive orders on secondary laws that become mandatory without
congressional approval.
The President can also authorize other functionaries to enforce rules, orders, agreements, and
decrees, by signing them; Mexico does not have a multiple scheme of functions and responsibilities, it has
a vertical design in which the top person responsible is the President (Arteaga, 2013:420).
But having responsibility does not mean being accountable to it. Historically, the president has
had a certain lack of responsibility, and to correct the situation, high-level bureaucracy was created. The
constitution and secondary laws are intended to make the President accountable while requiring
countersigning as part of a system of shared responsibilities. Thus, countersigning aims both to keep high-
level bureaucracy accountable, and to make sure the rules and decrees are enforced (Arteaga, 2013:484-7
ff.). In difficult or controversial cases, Congress can grant pardons as I discussed above, so the
accountability of high bureaucracy is very limited. Additionally, countersigning involves only presidential
decisions, and does not apply when third parties are involved, as the case of metropolitan issues requires.
Worse still, the Constitution is not clear about when presidential decisions require
countersignature. It is clear that countersigning should not be required of presidential decisions taken
56
under special conditions (as in war or under the influence of an event that endangers society, Constitution,
Art 29). Relevant Constitutional Law specialists affirm that orders, decrees, agreements, or regulations
require countersignature, but the process has been applied randomly. When controversy has arisen,
Federal Courts have been left to fix the problem; Constitutional Law specialists assert that what is needed
is a precise regulation of the public Administration Organic Law (Ley Orgánica de la Administración
Pública Federal—see Arteaga, 2013: 488 ff.).
Thus, the president has the prerogative of creating bills or decrees, to publicize constitutional
reforms, and also to promulgate laws approved by Congress—certify their existence, and order their
publication and enforcement (Arteaga, 733-755).
3.4 The judicial branch
The Constitution defines the creation of the judicial branch in two kinds: federal and local. The
federal kind has nationwide jurisdiction. The ultimate legal authority is the Poder Judicial de la
Federación (Supreme Judicial Power), of which the Supreme Court is the highest judicial authority. There
are several other courts with limited and specialized attributions—there are three other levels of courts,
which analysis goes beyond the purpose of this research. Local Jurisdiction courts are backed up by the
Constitution and the state constitutions and their jurisdiction is restricted.
The Supreme Court has eleven Justices within two chambers. The first chamber deals with penal
and civil issues, and the second with administrative and labor issues. Justices remain in office for 15 years
(justices and judges should retire at 75 years old), and they cannot be removed except for physical or
mental lack of capability (Arteaga, 2013:528). Each chamber has a president and can be in office for two
years without re-election.
The Supreme Court elects itself its own president who can remain in office for four years without
re-election. The president leads the debates, represents the Supreme Court in official acts, and carries out
the appropriate business to the entire Supreme Court. The quorum for the Court is seven members and,
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for some resolutions of general effect, at least eight members are required to cast their approval, while the
quorum for each chamber is four members.
The Supreme Court has two sessions. The first one works from the first working day of January
to the last working day of the second week of July, the second session goes from the first working day of
August to the last working day of the second week of December.
The judicial branch aims to prevent and to punish. As Arteaga asserts, the members of the judicial
branch represent the empowered elite in Mexico. Silence and lack of transparency defines the
appointment of justice of the Supreme Court (Arteaga, 2013: 498). The Constitution defines the
characteristics of a nominee for Justice or judge (Art 95). The process is simple: the president proposes
and the Senate ratifies.
In theory, the president selects three candidates and then, after hearings have been performed, the
Senate, with a two-thirds vote, selects the new Justice. In practice, the president rules the appointment of
Justices. When the Senate ratifies a Justice, the decision is final. Once the Justices are appointed, they
have the power to appoint judges. This process extends the power of the President to the judicial branch
while following the highly centralized and vertical design of the executive power.
Governors, in the states, nominate justices who should be ratified by the local legislature or by a
permanent representative committee (diputación permanente); they stay in office the same time as the
governor does. In the case of the Federal District, the mayor nominates the candidates to Justices, and the
local legislature ratifies. As in the federal arena, local justices appoint state judges.
In theory the Supreme Court is in charge of controlling the enforcement of the Constitution; in
practice, it has done it “minimally, symbolically, and painfully slow” (Arteaga, 2013), supporting the
existence of an inefficient system that provides consistency and authority to even those who violate the
constitution once the Supreme Court accepts their actions.
In order to assert that an action performed by public functionaries has violated the constitution,
there must be at least five consecutive sentences alike and no more than one sentence in contrary. Worse
still, once the judges and justices have ruled—which cannot be vetoed or reversed—the President or the
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Congress can grant pardons and amnesty. Additionally, judges (Jueces de instrucción) cannot take part, or
intervene, in trials regarding the responsibility of federal high-level bureaucrats, they cannot remove these
functionaries, and they only have knowledge of the legal process. Even worse, any issue with social
effects can only be addressed by the government; individuals are not allowed to do anything (Arteaga,
2013: 503 ff.). Individuals have been deprived of any self-provision of justice since 1857. The limitation
also prevents Justices from initiating a law or a decree, even when the law or decree is related to justice
administration.
In each state there is a State Superior Court with administrative and jurisdictional power to
oversee the responsibility of local functionaries, and to take care of civil and penal issues, but their
resolutions are not final; they are under federal scrutiny. Thus, a touchy local issue is always solved at the
federal level.
3.4.1 Protection Trial
As in the US, where the Fourteenth Amendment addresses citizen rights while providing equal
protection under the law, and aims to prevent against state and local officials depriving citizens from the
government taking life, liberty or property without proper compensation, in Mexico there is a similar
protection know as Juicio de amparo (a protection trial).
The protection trial was created in 1842 and was improved in the 1857 Constitution. Although it
was effective and a real source for citizens against wrong governmental actions, nowadays the process is
very specialized, difficult, and elaborated. In addition is so expensive that in practical terms became
available only to wealthy or powerful people (Arteaga, 2013: 510f.).
The protection trial aims to, temporally or definitely, suspend the governmental actions that
affect human rights, governmental wrongdoings, and states and FD overlapping federal attributions while
affecting human rights and constitutional rights that may be affecting other actors’ rights. In penal law,
the protection trial provides protection of minor misdemeanors, but does not provide protection against
crimes.
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The protection trial is not granted when the action may end up being an act against social benefit
or against rules, norms, and laws that protect public order. Thus, to grant immunity laws tend to include a
legend or banner that states: “The provisions of this law are of public order and social interest (Las
disposiciones de esta ley son de orden público y de interés social, Arteaga, 2013:510)”, and therefore the
protection trial does not work against them.
Due to historical reasons, in Mexico a positive right is emphasized. In a context where the
Catholic Church had so much power and used to control the law, the positive right, states that the only
valid right is the one that has been created by human beings. Thus, the legislative power creates rights
through laws that must be in written form. One of the main reasons for that demand is that Justices cannot
be called in congress, neither the president being in the supreme court (even though it has happened), nor
a committee of legislators can be in the Supreme Court, the communication among them must be in
written form.
Nevertheless, the judicial power is designed as an independent power and parallel to the
executive power, under the Mexican presidential regime, the judicial branch is clearly part of the
government (Arteaga, 2013). Although the relevance of the judicial power about providing legitimation to
governmental actions, whether they are just or not, is not denied.
3.5 The States
Local congresses have one house (Chamber of Representatives). The number of representatives
varies by state, they are in office for three years and immediate reelection is not allowed.
The governmental organization in the states is a reflection of the three national branches:
legislative, executive, and judicial, which are regulated by federal and state laws.
As part of the local judicial power, there are the state constitutions, which must not only obey the
National Constitution but not to oppose it. State constitutions should be adjusted to the National
Constitution reforms or amendments. Likewise, in the states, all regulatory frameworks should obey the
state constitution and should be adjusted to reflect its changes. As in the federal arena, local constitutions
60
define a complex legal framework system of laws, decree, bans, and agreements that define local actors
and their responsibilities.
Local constitutions can be amended as many times as the local legislatures approve as far as they
do not left uncover or oppose what the National Constitution mandates. When there is conflict between
federal and state governments, the Supreme Court in full should settle the conflict; the Senate does it, if
there is an inter-states political conflict.
Following the principle that constitutions are valid as far as they are written, in the case that
informal laws and consuetudinary norms exist, the national constitution do not recognize them, in some
states the principle is replicated.
The states can increase social rights if they impose duties, actions, and responsibilities on local
officials or authorities (Supra : 562).
Important and critical conflicts within the state territories, as mentioned before, are not expected
to be resolved by state authorities. Even though there is not legal regulation, the federal government
oversees local resolutions due to consuetudinary centralization. Moreover, the constitution grants
jurisdictional intervention of federal courts in states territories (Arteaga, 2013: 562), Only federal judges
are allowed to define if there is a contradiction between a local constitution and the National Constitution,
and the use of violence as mean to solve conflicts is forbidden.
State constitutions have primacy and rule over any other legal regulation in the state. This is
granted by the principle that local rights are the general rules, while the federal rights are exceptional and
fast track rules. Local constitutions are permanently valid, regardless the amount of amendments they
have or even in the cases in which authorities or citizens do not comply with it (Arteaga, 2103:563ff.).
3.5.1 The Governors
To a state level, the governors are the most important players on legal, social and political arenas
(Arteaga, 2013: 576). In a highly centralized and vertical organization of public administration, as in the
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case of Mexico, the governors are the direct responsible for the president of the republic policies, usually
all the state bureaucracy depend on them, and their executive power cannot be delegated.
In addition, governors appoint the justices of the state supreme courts, while local congresses
scrutinize and approve. Justices hold the position for six years, if ratified after that period; they hold the
position indefinitely,
In practice, legislation in the states, different from the national legislation that demands a
collective decision, can be exercised not only by the local legislature but also by the governors.
Governors have the right to start bills before the local congresses; they also have veto power over
any bill at the local congress. The veto can be overruled only with a two-third vote from the local
legislators. In case of political disagreement between governors and local congresses, the governors can
avoid publicizing a law or a decree and therefore cannot be formally recognized. Thus, the type of
governor’s dependency on the President, is replicated from local congresses and high-level bureaucracy to
governors. In real life, since in most cases the proposals for bills come from the governors the veto power
is not exercised (Arteaga, 2013: 588).
Local judicial branch have absolute power to interpret and enforce Constitution rights and local
laws according to specific situations. Except for the FD, where the defense of local legal framework is the
Congress’ responsibility. The defense of local constitution and local frameworks is local courts’ issue and
responsibility (Arteaga, 2013: 611f.).
3.6 The Municipalities
The Constitution grants the creation of municipalities in its article 115. Municipalities are self-
governed and autonomous entities, governed by a presidente municipal (municipal mayor) and an
Ayuntamiento (municipal council), the representation of the municipality cannot be granted to only one
individual. Elected officials hold their position for three years without immediate reelection and the whole
council or any its members can be deposed with two-third vote of local legislature and after a proper trial.
62
Nevertheless municipalities have formally only executive attributions, they also have regulatory
power. They can approve laws created by the local legislation; they have regulatory power over issues,
procedures, functions, and public services within their jurisdictions (Constitution Art. 115 Fraction II).
Moreover, the municipal council can analyze, vote, arrange, monitor, and enforce council decisions
within its territory.
Those who represent the municipality have three main principles: being the executor of municipal
agreements, to do so under law allows (whether created by their own councils or by the local legislatures),
and only with the approval of the municipal council or local legislature is able to engage into agreements
with financial or economic purposes (Arteaga, 2013:673).
Since municipalities are in charge of common good resources, municipal mayors are not allowed
to alienate any municipal asset, unless under very specific requirements are fulfilled or when the local
legislature approval. To ensure the above, notaries are banned to formalize any operation of that nature.
While legislatures have the power to create laws, the municipalities have the duty to create regulations
and enforcing the law. Thus, local legislatures became the responsible entities for monitoring,
supervising, controlling and auditing municipalities, besides their own internal control (Arteaga
2013:674).
Nevertheless, municipalities have legal personality in Mexico and internationally, the official
representation can be exercised only within the state since representatives cannot have the power to act
beyond the state in which the municipality is located. Therefore, the Governor assumes the representation
of the municipality beyond the state’s geographical limits due to two main reasons: to avoiding the
municipalities engage into agreements they cannot fulfill, and due to a political control.
Municipal representatives can hold the position based on direct election or by councils appointed
by the local legislature. In any case the representatives should have an oath to respect the Constitution and
the laws in order to be empowered with their positions.
Municipalities, nevertheless they are autonomous, have no right to organize in their best interest.
The constitution states the basic organization and the number of elected officials besides the municipal
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mayor (see figure 2). The municipal organization is not static, because the number of municipal officials
within the municipal council changes in function of the municipal population or related to the relevance
of the municipality. The Constitution, the states’ constitutions, and the municipal laws frame the
municipal council’s responsibilities.
Figure 2 Basic organization of a Mexican municipality
Source: based on Arteaga, 2013
Although municipal councils do not have formal legislative power, they can generate bans and
regulations, which in practical terms are properly legislative actions (Arteaga, 2013: 681 and 707).
Through bans the municipal councils can create mandatory regulations complementary to the
Constitution, the state constitutions, and laws. The regulations are permanent unless formally revoked or
by creating a law that overrules them. Moreover, the regulations do not need to be published to be in
effect as far as the regulation is available to the public by any means. In other words, the bans are
administrative decisions that become de facto legislation when the decision is taken, regardless of
whether or not it is publicized (Arteaga, 2013: 724).
Local legislatures have the legal power to create laws to regulate agreements between
municipalities and the governors. Agreements can be created for exercising federal responsibilities in
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local jurisdictions, and for provision of municipal services. Agreements between municipalities and the
Federal Government can also be made for purposes of building infrastructure and its operation (Arteaga,
2013: 725). Moreover, the Constitution allows municipalities to associate in order to provide better
services or to improve the performance of their responsibilities, but local legislation approval is required
if the municipalities are located in different states (Mexican Constitution, Art. 115, Fraction III).
In case of conflict between the Governor and the municipalities, the resolution comes from the
local legislature, but if the conflict is between the Federal Government and a municipality, federal courts
solve the conflict (Arteaga 726f.). In case of local conflicts the municipalities have jurisdictional power to
solve controversies against the municipal major.
The above conforms the legal fundamentals for Federal, states, and local legislative action to
define actors with attributes and responsibilities for water management at a metropolitan scale. The
analysis of the use of those delegated responsibilities, the application for water provision in MC, and the
cultural values this has created around water use, will be analyzed in the following chapter.
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Chapter 4: Mexico City in Context
4.1 A City on a Lake
The story of MC, linked to water, is divided into four eras: Aztec (1325-1521), Colonial (1521-
1810), Independency (1810-1910), and Contemporary (1911-present). The eras make sense in terms of
the history of decision-making regarding water, but do not constrain the history of water itself because
water relationships in MC have continuous interrelations that go back and forth, with a common start
almost seven centuries ago.
A perspective on water use is presented, and then an analysis of WPR follows, to finish with the
characteristics of the contemporary crisis of water in MC, which, rather than being a crisis due to lack of
water, is a crisis caused by the lack of appropriate water management with centuries of historical roots.
4.1.1 The Aztecs and a Lacustrine System
The Aztecs founded Tenochtitlan in 1325, and it evolved into what nowadays is MC. The ancient
Tenochtitlan was the heart of the Aztec empire, founded on a lake of 2000 sq. km. (equivalent to one and
one half times the size of the City of Los Angeles). In times of drought, this enormous lake split into a
system of five lakes: Texcoco, Xaltocan, Zumpango, Xochimilco, and Chalco (USAID, Semarnat, 2012,
Rojas, n.d.).
The lake was located within an endorheic basin surrounded by sierras—a valley surrounded by
mountains, in a bowl-like shape without any natural exit for water. The runoff water coming from the
hills, through time, formed layers of suspended clay in the system of lakes. Today these layers generally
consist of 80%-90% water, and they may reach 130 m. depth in the south part of the basin, which these
days is the area of the border between the Federal District and the metropolitan municipalities in the State
of México.
Sierras surround the basin and at the center used to be the huge lake. The lake was a mix of
brackish water coming from the north and fresh water coming from the south. Spaniards, by the
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conquerors’ time, asserted that the lake, in fact, comprised two bodies of water. The body with fresh
water was at a higher altitude than the body of salty water; thus, fresh water was moving from south to
north (López de Gómara, 2007: 189). The Aztecs controlled the flow of water through water gates built
along a network of dikes. The tops of these dikes varied from around 2.4 m. to 24 m. in width, and they
were used as roads to connect Tenochtitlan with surrounding cities (Cortes, 1866: Letter II).
The lake was, in fact, an interconnected system of lakes located at different levels, creating a
lagoon (salty water) in the north and a subsystem of small lakes in the south part of the basin (fresh
water). Contemporary studies have confirmed that the system of lakes in the South, (Chalco, Xochimilco y
Mexicaltzingo), were filled with fresh water coming from nearby springs and rivers.
The arrangement of the lakes in the South resembled a system of terraces. The lake of Chalco was
at the highest altitude, at the next level was the lake of Mexicalzingo, then the lake surrounding
Tenochtitlan, and finally the lake of Texcoco at the lowest altitude. The water from Chalco Lake flowed
over the lake of Xochimilco, and then moved toward Tenochtitlan. This network of lakes created natural
conditions for the development of agriculture in the Chalco-Xochimilco area, see figure 3 (Rojas, n.d.: 26
ff.).
As Aztec clans were coming to the area, they settled by the shore of the main lake. Altogether, a
collection of settlements started to gain land by adding extensions of soil into the lake. The last Aztec clan
that arrived at the lake was forced to settle on an islet in the central-west part of the lake; with time, work,
and alliances, not only was that group able to increase their land, but also to build a complex hydraulic
system.
Since the lagoon was composed of brackish water, the Aztecs built a system of canals and
aqueducts to provide fresh water to their city. This water came from springs located in the southwest
shore of the lake, mainly from Chapultepec. They distributed it in two ways: 1) to the center of the city as
a common good, including transportation by canoe to the population who didn’t have direct access to
fresh water in the city, and 2) to temples and members of the nobility within their properties. The design
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of aqueducts worked so well that they were the primary source of water transportation until the beginning
of the 19
th
Century (Buenrostro, 2008; Piña, 1970; Diaz del Castillo, 2014 :60).
The Aztecs’ hydraulic infrastructure included canals, irrigation ditches, and aqueducts for the
purpose of using water to crop terraces of kilometers of extension (Palerm, 2008). The control of water
was for agricultural uses, urban uses, and flood control. This system worked thanks to subsystems of
redirected and controlled flows of water coming from rivers and springs, and also a complex system of
extensions of soil within the lakes called chinampas (floating land added in small segments for agriculture
purposes, one of the most productive agricultural systems ever invented). Water control for agriculture
purposes was so successful that it led to the creation of a complex hydraulic system that encompassed up
to 8,000 sq. km. (Palerm, 1990:110, Palerm, 2008; USAID, n.d.). While a complex system of chinampas
was created, the lakes started to shrink at the same time.
Water for urban uses was also successful. The Aztecs created Tenochtitlan, a city that, compared
to standards of contemporary feudal European cities, was cleaner and better organized, and was the center
of a network of cities with various clusters of houses. Clusters of floating houses were interconnected
through networks of canals and mobile bridges, and also linked to towns partially or totally founded on
firm land. For example, Spanish chroniclers assert that Texcoco had 10,000 floating houses, and the lake
had more than 50 towns, some of them with 5,000 to 10,000 floating houses. Travel between towns was
so frequent that daily transit just coming from Iztapalapa was often three thousand to four thousand
canoes moving along the canals connecting that town to Tecnochtitlan (López de Gómara, 2007: 189,
Rojas, n.d.: 41).
The provision of water included populated settlements located in the south part of the basin.
Cities like Iztapapala, Mexcalzingo, and Culhuacan got water from their own springs and also from canals
transporting water from the east part of the basin, while cities located in the north and east of the basin
had a different system.
Aztecs’ mastery of the lacustrine system was sufficient to transform barren areas into fertile
zones, and to integrate them to the urban environment. In the case of Iztapalapa, located in the east part of
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the basin, the Aztecs created a complete water management system at the border of the lagoon and the
system of lakes. This enabled a subsystem of chinampas and creation of a system of canals to facilitate
the transportation of products and people in canoes. It also connected Iztapalapa to Tenochtitlan, and led
to infrastructure both to provide for fresh water and to control volumes of water coming from the lagoon
in unusual rain periods (see Rojas, n.d.: 41 ff.). Later, Spanish modified the system, resulting in the area
returning to its natural barren conditions. This reminds us that the lake was also a permanent threat to
Tenochtitlan.
To protect Tenochtitlan from floods, under Ahuízotl (the eight Aztec emperor), the Aztecs had
built a dike around the city and controlled water flow through gates. The effort, however, did not suffice;
the lake overflowed the dike and flooded the city. Thus, Nezahualcoyotl (Texcoco’s ruler) built a second
dike around 1450. The dike completed the previous hydraulic infrastructure of dikes, levees, and
embankments with roads on top to connect communities. It went from the north to the southeast. It helped
to control the level of the lake when it rose in rainy seasons due to the rainwater coming from the rivers of
the north part of the basin, and it helped to separate brackish water from fresh water. Although the dike
worked well for 50 years, over time it caused a lack of fresh water for crops and of water in the canals
used for transportation. For the location of the dike see fig. 3 (de Garay, 1888:15).
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Figure 3 Lacustrine System of Mexico City in the 16
th
Century
Blue color represents water and white color represents land. Source: Santoyo et al. Síntesis
Geotécnica p.37.
In 1489, Ahuizotl, who preceded Moctezuma—the emperor ruling when Spaniards arrived to
Tenochtitlan—ordered fresh water to be brought from Coyoacán to Tenochtitlan. The decision proved to
be wrong; the level of the lake surrounding Tenochtitlan rose and the city was flooded once more (de
Garay, 1888: 13). Once the dikes were repaired, separating the brackish waters and fresh water, the city
was safe again.
Dike of Netzahualcoyotl
Dike of Ahuízotl
Important Roads
Towns
Tenochtitlán
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4.1.2 The Spaniards’ approach
In 1519, Hernando Cortes, in order to defeat the Aztecs, broke the dike so the Spanish ships could
approach Tenochtitlan. He then broke the aqueducts, eliminating the provision of fresh water to
Tenochtitlan. The Spaniards took over Tenochtitlan in 1521 and used the material of the dike for other
purposes. The lake showed them their mistake two years later when the city was flooded again. After the
first big flood, registered in 1555, Viceroy Luis de Velasco, with disdain for the Aztec experience and
lessons, ordered the construction of a new dike, similar in form to the Aztec dike but in a different
location. In 1580, floods proved it useless, and repeated the lesson with the third big flood in 1604 (de
Garay, 1888; Rojas, op cit: 47).
While the Aztecs were able to build a floating city and learned to live with the lake—despite the
imminent threat from the lake represented to them—Europeans implanted the feudal city model on a lake,
building a sturdy, immobile, walled space. Under the enforced European vision, Spaniards did not learn to
live with the lake; instead they tried to build an isolated city, to delimit the space, and to subjugate the
lake. Under this vision water should not only be controlled but also expelled from the basin, while
building a flat-dry-modular city, and they did so without having a clear idea of what they were dealing
with in the basin, and without adequate planning. The Spaniards diverted rivers, segmented the lake to
make seven lakes out of one, filled in part of the lake, created marshy areas, privatized springs, built
dams, erected walls, and transformed the natural cycle of water, and still they were neither able to control
floods nor to provide enough fresh water to the city (de Garay, 1888).
Then, in 1580, Viceroy Martín Enríquez initiated the idea that taking water away from the basin
was the adequate solution to the floods—a pernicious idea that public officials are still supporting. The
next Viceroy, Juan de Mendoza, partially implemented the idea. Terrified by the flood in 1604, the
viceroy ordered the main canals carrying water from the system of lakes to be closed in order to protect
the central city, while flooding the southern cities when the level of the lakes rose. The decision also
halted the mobility of people using canals to come from the south, and worse still, the measure destroyed
the economic system of agricultural production of the southern part of the basin. This not only affected
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the southern communities, but also impacted the Spanish crown who did not receive the expected taxes
(de Garay, 1888, Rojas, op. cit.).
In 1607, the Viceroy Luis de Velasco (el Mozo—the son), opened a contest for taking the water
out of the basin, and based on Enrico Martinez’s winning proposal a tunnel 7 km long, 3.5 m. wide, and
4.2 m. high was built (the Huehuetoca tunnel). Nevertheless in 1629 the city was flooded again; this time
the flood lasted five years (de Garay, 1888; Rojas, n.d.; Legorreta, 2009). The endless era of building
infrastructure to desiccate the lagoon and the lakes started with that tunnel.
Since the Huehutoca tunnel did not serve the purpose, it was transformed into a cleft. For a
century and a half the sierra was slashed to allow more drainage from the lake (the Nochistongo Cleft),
but this did not suffice either; then, near the end of the 18
th
Century, another canal was built to drain the
lakes of Xaltocan and San Cristobal (Legorreta, 2009). The idea of fighting water was revving up.
By the second half of the 19
th
Century Maximilian de Hapsburg ordered the construction of a
canal of 50 km (30 miles) and another tunnel of 11 km (7 miles) through the sierra, supporting the idea
that taking away the water was also the best solution; while doing this he helped to keep destroying the
lake. The canal and tunnel were completed 33 years later when the Texixquiac Tunnel (used for lake
water disposal) and the Gran Canal (Grand Canal, used for wastewater disposal) began operation, under a
new form of government after the death of Maximilian. This solution did not work either; a year later the
city was flooded again. By the end of the 19
th
Century, however, the Chalco Lake was desiccated and the
lacustrine system was dying.
Without clear ideas on how to manage the lake or about how to live with it, the only solution seen
was to continue taking the lake water out of the basin; the assumption was that, if there were no water,
there would not be any floods. At the same time, however, more fresh water was needed, and the ideas of
importing water from farther away and extracting it from deeper sources took hold.
The problem of scarcity of water for a city built on a lake has not been a problem of lack of water,
but a lack of vision on how to adequately manage common goods. It has been a problem of how to make
decisions regarding comprehensive and inclusive administration of water resources, which includes
72
regional apportionment and distribution of water. Recycling was not a topic even considered by water
decision makers. The viceroys’ decisions are good examples of wretched centralized ruling on water
administration that, unfortunately, has not changed in the succeeding centuries; in fact, the centralized
control of hydraulic infrastructure has increased.
The decision of Juan de Mendoza regarding closing the main canals carrying water from the
south part of the basin created many negative externalities at the beginning of the 17
th
Century, but the
decision was never reversed. On the contrary, floodgates were installed in canals and managed centrally,
without consensual use of water or discussion with communities about their needs for water. For example,
the conflict in 1861 between communities from Xochimilco and the already existing bureaucracy in
charge of operating the floodgate in Mexicalzingo (See its location in figure 3) led to a collective and
desperate solution: the violent appropriation of water and destruction of infrastructure of control,
including the floodgates that hampered the circulation of fresh water (for details see Rojas, op. cit.: 48
ff.).
4.1.3 The contemporary approach
At the end of the first half of the 20
th
century, the MC government built a new tunnel. It was built
between 1937 and 1942, but it did not suffice to manage the floods occurred in 1942, 1944, 1949, and
1950. Worse still, the flood of 1944 partially destroyed the tunnel that was built to supposedly solve the
problems of evacuating water; it was reopened in 1955. The 1949 flood lasted three months, and the one
of 1950 flooded two-thirds of the city (Legorreta, 2009:234f.). In a contest of stubbornness, the lake has
always won.
Every time the Aztec emperors, the viceroys, the emperors of Mexico, or the presidents claimed
success in controlling the lake (mainly regarding the control of floods), the lake has proved them wrong.
Those inappropriate, perennial efforts, based on a misunderstood relationship with the lake—by
desiccating it and by pretending the lake was not in the basin any more, rather than by a creating a
73
symbiotic relationship—have only succeeded in changing the time and type of effect. Notwithstanding the
lack of success, the contemporary governments have followed the same path and model.
In 1962 the sewage system to convey the rainwater and wastewater from the east part of the
basin to the state of Hidalgo started functioning (Emisor Poniente). It is a system designed to handle up to
30 m
3
per second. The weaknesses of the system were evident when, on September 6, 2009, the system
collapsed due to atypical rain; as rivers overflowed, the flood threatened cities in the northwest part of the
basin. The solution from CNA (Water National Commission), was to increase the pumping capability to
expedite discarding water from the basin (CONAGUA, 2012: 25ff.).
In 1975, a new Emisor Central (Central System sewage) began to operate—in other words, an old
concept was dressed up with new technology to keep it working. The sewage network is a 51 km long,
6.5 m. diameter network, which goes under the city at a depth of 240 m., leading to the state of Hidalgo in
the north part of the basin. The main network was complemented by a secondary network of 100 km
length, 30 m underground, that connects to the Emisor Central to take away rainwater and wastewater
from the basin. The President at that time, as with his predecessors, claimed that the new system would
end the floods in the city. He left office before finding out if it did prevent flooding. Two design factors
aggravated the problems with this network. First, the system was designed to carry rainwater but it also
carries wastewater, which speeds up its deterioration because it works continually and without any
maintenance periods. Second, the requirements for managing large volumes of water did not change:
extracting, using, and disposing wastewater out of the basin. As groundwater is pumped, the city
subsides, the slope of the sewage system reduces (or even reverses), and sewage operation efficiency
decreases. This situation confirms the problem that fighting the lake has only affected details of the
consequences. Sinking ground level has jeopardized the infrastructure that is supposed to solve the
problem. As of 1975, the Emisor Central’s capability was 170 m
3
per second; by 2008 the capability was
reduced almost 30 percent (CONAGUA, 2012).
To counteract the deficit of having rainwater and wastewater in the basin and to be disposed out
of the basin, since 2007 the Federal government, the FD, and State of Mexico governments have
74
increased their pumping capability in alternate systems to dispose water from the basin. In addition to the
doubtful effectiveness of the solution, the situation demonstrates MC’s vulnerability. What will the
consequences be in the eventual case of a combined event of atypical rains combined with the failure of
the pumping systems? The question is not new, but neither is the lack of adequate answers, which are
mainly based on the deficits of water used and water discharged.
Finally, in 2008, CONAGUA and the FD government built another sewage system in the east part
of the basin. It has 60 km length and 7 m diameter, and is designed to handle up to 150 m
3
per second. It
takes this water to the State of Hidalgo, where a wastewater treatment plant with capability of only 23 m
3
per second is included as part of the system. By following the model of using water within the basin, and
then disposing it outside of the basin, in 2008 there was an excess of 120 m
3
per second of water used,
compared to the amount that was possible to take out of the basin. (CONAGUA, 2012)
4.1.4 The modern approach in potable water
As water was evacuated from the basin, the model of using fresh water did not change, and at the
same time, the city grew. The fresh water coming from the aqueducts built by the Aztecs became
insufficient.
In 1810, water coming from the springs of Santa Fe in the southwest of the Valley of Mexico was
imported. By the middle of the 19
th
Century, water was extracted from wells that had mushroomed in the
city. But again, at the beginning of the 20
th
Century, water from springs didn’t fulfill the city’s increasing
need for fresh water, and the race for getting water from farther and deeper sources of fresh water
continued. The competing solutions were to import groundwater pumped from wells in the southern part
of the City (Xochimilco) or to bring water from the springs in Lerma in the state of Mexico. Promoters of
the first option won, but the second option did not die; it was just postponed four decades. Thus, at the
beginning of the 20
th
Century, the first system started extracting water from the Xochimilco area
(Buenrostro, 1988; Torres, 2014: 87f.). At the same time, lacking regulation and control, shallow aquifers
were quickly overexploited and MC was sinking one inch yearly (Buenrostro, 2008:7).
75
The problems from the past regarding water management and water decision-making issues
appear with no essential changes; they just were updated to suit the new airs of modernity. The importing-
using-exporting model use of water continued, without finding a more symbiotic man-nature model of
water use. The race to get water from farther and deeper sources of water was more evident. As viceroys
disappeared, and emperors died, the President of the Republic appeared as the new central figure. This
happened because the FD did not have the status of a state, and therefore nor autonomy or freedom to
elect their officials. The President, both appointed the City mayor, and decided the main water policies for
the city.
Since the Federal government was, de facto, in charge of providing water to the FD, it took two
approaches: to exploit intensively the groundwater within the basin, and to gain control over sources of
water in adjacent basins within the northern part of the State of México.
By the 1920’s, deeper wells within the city were built and a network of wells in the north part of
the basin (Cuatitlán and Tula), started providing fresh water to MC (Torres, 2014: 87). At the same time,
wells in the Lerma river and use of water from springs that feed the Lerma river were forbidden.
4.2 The Provision of Water to MC
The current provision for potable water to MC comes from three main sources: a network of
clusters of wells, called Pozos de Accción Inmediata (PAI, Wells of Immediate Action), and two surface
systems to import water to the basin, the Lerma system and the Cutzamala system.
4.2.1 The Wells of Immediate Action (PAI)
In 1972, the city implemented a three-part plan for fresh water provision for the period 1973-
2020. The first part was the PAI network, which was intended to cover the water needs for the period
1973-1980. It was designed as a network of wells within the basin located in areas with less severe
overexploitation. The network provided 8 m
3
/s (even though the system was design to work temporarily,
it is still operating). The second phase was the middle term plan, covering 1981-2000, and the third phase
76
planned to cover 2001-2020. The PAI intended to provide up to 31.83 m
3
/s to MC (Buenrostro, 2008;
Escolero, 2009).
The original project included four networks of wells to provide 10.6 m
3
/s. The networks were
designed as follows: the Southern Network (Sistema de Pozos Sur) with 35 wells to provide 3.3 m
3
/s; the
Eastern Network (known as Nezahualcoyotl line) had 18 wells to provide up to 2 m
3
/s; Teoloyoucan
networks with 31 wells to provide 2.3 m
3
/s, and the Atlamica Network, with 33 wells and 3 m
3
/s
(Buenrostro, 2008: 8).
PAI started working in 1974 and the network became very complex by 2006. In 1995, control of
85 wells was transferred to the FD’s government, control of 70 was transferred to the State of Mexico
government, and control of 17 wells was transferred to the State of Hidalgo in 1997. Although in 2006
there were seven sub-networks with 217 wells total, only 156 wells were in service. The system also
included eight aqueducts with over 200 km length, five pumping centers, a dam, and a water treatment
plant (Escolero 2009: 63, citing CONAGUA 2007; CONAGUA, 2005:12).
The distribution of wells in the basin is uneven. The network of wells spreads out in 17
jurisdictions including municipalities and boroughs, but only six of them profit from the water produced
by the wells under their jurisdiction.
Currently, CONAGUA regulates and operates the PAI system, controlling it through the
OCAVM. The system provides water to four boroughs in the FD, 14 municipalities in the State of
Mexico, and two municipalities in the state of Hidalgo (OCAVMc, n.d.).
The second phase of this strategy of getting water from deeper and farther sources involves
importing water from the Lerma and Cutzamala systems.
4.2.2 The Lerma System
After a new crisis regarding the lack of fresh water, in 1941, the Federal Government authorized a
new project for water provision to be performed in several phases. The construction of the Lerma system
started in 1942, and it began operation in 1952. The system was designed to convey water coming from
77
springs in the Lerma Valley in the State of Mexico to the southwest part of the FD. It has two aqueducts
and a tunnel; it also included the construction of four plants for production of power through its
conduction line. The first phase of the project was concluded in 1951,with 75 wells to produce 5 m
3
/s.
The conduction lines conveyed water from Almoloya in the state of México to the Dolores tank in the FD.
The capability of the conduction line varies from 1.2 m
3
/s to 6 m
3
/s in its different sections, within its 22
km length. (Torres, 2014: 89 ff.). The process of water extraction desiccated 20 sq km of the Lerma lake
by 1957, while the system was just working at one third of its capability to extract water.
Federal authorities and the FD authority demand for higher quantities of water from Lerma
Valley and several agreements were signed between 1966 and 1970.
In 1966 the second phase of Lerma started, with a target of 5 m
3
/s. This phase included the
transformation of marshes and swamps into agricultural areas. The government of the State of Mexico
committed to desiccate 70 sq km of the Lerma lake, as stated in an unpublished accord by the government
of the State of Mexico—but as I asserted in the previous chapter, the lack of publishing the accord does
not annul its legal validity (Torres, 2014: 100). The agreement included several amendments, and the
annex of 1968 increased apportionment by 2 m
3
/s, with the municipalities of Naucalpan-Zaragoza-
Tlalnepantla sharing one and Ecatepec and Nezahualcoyotl also sharing one. The price of bulk water was
0.20 pesos/m
3
.
The government of the state of Mexico, looking for the desiccation of the Lerma Lake, agreed
with the FD on the location of networks of wells in 1966, but after three year the desiccation was not
achieved. In 1970, to end this agreement, the FD settled with monetary payment. The government of the
state of Mexico got the money but did not honor the creation of infrastructure of infiltration protection for
aquifer recharge purposes, nor the payments to individuals for property seized or affected by the
construction of the infrastructure. The agreement was signed by the SRH as well, so the three parties were
involved, but the implementation failed.
78
Additionally, between 1966 and 1969, the government of the State of Mexico and the SRH
required extra payments from the FD for the provision of basic infrastructure to towns located near the
water production locations, and along the conduction lines.
In 1970, the Lerma system had 188 wells producing up to 10 m
3
/s (Torres, 2014: 109). The
production of water was reduced in 1980, and by 1982 a new system started operation: the Cutzamala
System.
4.2.3 The Cutzamala System
Cutzamala was designed to carry up to 24 m
3
/s (Escolero, 2009: 98). In 2005, the Cutzamala
system provided 14.7 m
3
/s of fresh water to MC and 0.82 m
3
/s to Toluca City (CONAGUA, 2005:11).
The system transformed a network of hydroelectric dams to provide fresh water to MC. It includes two
dams in the State of Michoacan and five dams in the State of Mexico (CONAGUA, 2005:14).
The Cutzamala system was built and is controlled by the Federal Government. It was built in
three phases. The first phase started in 1976 and it became operating in 1982, providing 4 m
3
/s. The tubes
of 2.5 m diameter that connect the water storage tank with the pumping system can conduct up to 12 m
3
/s,
up to the point where it joins the Lerma system. The second phase started working in 1985, providing 6
m
3
/s; its conduction line of 4.5 m. diameter has the capability to deliver up to 34 m
3
/s. The third phase is
providing 9 m
3
/s, with three pumping plants; it has two subsystems (it started providing 1 m
3
/s in 1992,
then added 8 m
3
/s in 1995, and still lacks infrastructure not built but designed as part of the project); the
pumping capability is 5.8 m
3
/s. The system carried between 15.5 and 16 m
3
/s average until 2009
(Buenrostro, 2008: 9; Escolero, 2009: 98; CONAGUA, 2005: 18). There is a fourth phase, postponed
since the 1990’s, the project called Temascaltepec, which is intended to carry up to 5 m
3
/s from a dam
with 65 hm
3
capability. By 1998, MC got 17 m
3
/s from external sources and springs.
CONAGUA asserts that the system depends mostly on surface water sources. Those sources are
not only unstable regarding the amount of water provided due to variations in rainfall, but also due to
erosion of the Valle de Bravo, which has been reducing the quality of water and carrying sediments into
79
the dam. The sediment creates layers of silt, reducing the dam’s storage capability (1.98 millions of m
3
of
silt). In addition, disposal of wastewater in the Valle de Bravo Dam and its tributaries (5.9 hm
3
/year),
chemicals carried from water used for aquaculture and agricultural have deteriorated the quality of water
in the dam (CONAGUA: 2005; Escolero, 2009:29 f.).
4.3 Water Property Rights in the Basin
The scarce information regarding the description of the lacustrine system indicates that water
property rights were in fact economic processes of appropriation of fresh water, with two situations
demonstrating this.
When Ahizotl resolved to bring fresh water from Coyoacan to overcome the lack of fresh water in
Tenochtitlan, it is not clear whether Tenochtitlan had WPR over that water. It is, however, clear that he
had the power to enforce his decisions. The Coyoacan ruler opposed the decision, for two reasons. First,
because he considered it a bad solution. The history of letting the water freely flow showed that it would
have ended up flooding Tenochtitlan, which in fact happened. Second, because while dealing with
rationalist and egocentric individuals and their control of limited common pool resources, common sense
indicates that he was not willing to give away the springs located in his kingdom. This provided the
rationale for Ahuizotl to have his people kill the ruler of Coyoacán and to take the water from the spring
(de Garay, 1888:15 ff.; Rojas, op, cit.: 42 ff.).
Another example of effective authority, or having the power to impose Economic WPR over less
powerful actors, is the case of the emperor Moctezuma, who granted permits for obtaining salt from the
lagoon. Permit owners then paid taxes to the Emperor; the amount is not registered but it seems important
since at least three towns had important commerce in salt: Misicalcingo (Mexicaltzingo), Niciaca
(Coyoacan), and Huchilohuchico (Churubusco) (see (López de Gomara, 2007:169; Rojas, n.d.: 13).
Second, Spanish chroniclers assert that Aztec nobility had the provision of water within their
properties for both recreational and productive purposes, The possession of water was not contested, and
80
therefore de facto appropriation of water was socially recognized and validated (Rojas, n.d.; Garay, 1888;
Cortes, ; López de Gomara, 2007:168).
Although the Aztecs were a very stratified society, provision of fresh water was granted for
human consumption in public places and in temples, as well as for agriculture purposes; water was
available to wealthy as well as to common people. Thus, the chroniclers’ narrative about the water system
seems to indicate the existence of provision for fresh water based on consuetudinary law. The traditional
provision of fresh water allowed regular citizens to have access to water in public places and for those
without access the provision of water in the core part of the city, water was provided through canoes, as in
the case of water coming from the springs located in Chapultepec. Even though it is not possible to affirm
the existence of legal WPR or their inexistence, it is clear that the provision of water was a common good
granted by consuetudinary law. This seems to be a sound conclusion from the chroniclers’ narrative, but
this idea needs to be confirmed with more detailed research.
In addition, towns located in Chalco and Xochimilco had access to fresh water coming from the
springs located in their surroundings. Towns like Tacubaya, Mixcoac, and Coyoacan, in the southwest
side of the lacustrine systems, and Culhuacán, Tacubaya and Zapotitlán, in the center, and even what later
became Santa Fe, had provision of water from springs located in their areas. Those locations had their
own WPR, whether granted as simple economic PR or mere expression of direct appropriation and
validated by consuetudinary law.
4.3.1 Colonial Era
On the factual side, the winners got it all. When the Spaniards arrived, the lacustrine system was
in place, three kingdoms were working together, and their oligarchies were evolving toward a monarchy
with control over the lake and extended territory into Central America. The Spanish crown took over land
and water and, as in the case of original Americans, water claims were not based on Spanish grants; the
Crown only recognized the WPR of communities and nobles. Legally, communities and Aztec nobility
retained their WPR. For newcomers, the crown delegated control over water sources attached to land
81
ownership to those who served it well or those who financed the conquerors (whether through
encomiendas—which, in practice, were permits to demand tribute and forced labor, attached to the
ownership of land granted by the Crown—or Mercedadas—which was land ownership granted by the
Law for Provision and Distribution of Land of June 18, 1513 (Ley para la Distribución y Arreglo de la
Propiedad) and confirmed by a Crown permit named “Merced”. In the case of small water sources,
riparian rights were recognized (Mendieta, 1983; Wobeser, 1983).
Although inheriting mercedadas was not permitted, it was a common practice to do so. In fact,
Mercedadas were individually granted, without permission to endorse them to someone else or to inherit
them; and they were only granted for specific water-use at a specific location. But in practice, economic
appropriation of water was more effective than legal WPR, and all of the above happened, sometimes
even with public officials’ consent (Suárez and Birrichaga, 1997).
Since water appropriation achieved through Crown permits or legally taking over original PR was
complicated, economic PR in the form of illegal appropriation of communal water was prevalent. The
worst example was Hernando Cortes himself, who, through his encomiendas, took over water belonging
to several indigenous communities, and also seized the land of Xicotencatl and Moctezuma—the last
Aztec emperor (Mendieta, 1983; Wobeser, 1983).
The economic appropriation of water was in fact stealing communal water; as time passed, the
heist took legal form to the point of dissociating the legal rights from the direct use of water. For example,
under specific conditions the thieves were not only able to usufruct the water, but to retain the right to sell
it, and even to inherit it. In other words, it became a perpetual usufruct in practice. The problem of illegal
appropriation in the colonial times, even born with violence and with proof of law violation, worsens with
time. To many communities’ despair, it became a legal right when “…the pacific possession lasted long
enough that the inhabitants recognized the stability and the need of the new order (Mendieta, 1983: 29,
citing Moreno Cora).
While the water system in the colonial era faced operational problems of water distribution and
apportionment, and the decay of inefficient infrastructure, the legal system of WPR faced three main
82
problems: the lack of legislation regarding WPR including its lack of effective implementation, and the
lack of alternate ways to create WPR.
Getting complete records on WPR proprietors was a permanent issue along the colonial period.
Water was a property of the Spanish Crown that granted usufructuary use, but the Crown was unable to
get a complete record of water users. The root of the problem was that governors, military commanders,
mayors, municipalities and even other minor public officials were able to grant WPR, but the Spanish
king was responsible for ratifying them.
If the lack of complete records was not important for water regulation itself, it was important for
its link to tax collection for the Crown. Thus, in 1735, a law (Cédula real) asked landowners to validate
their land property rights, but the lack of enforcement led the viceroy to implement a full tax collection to
improve control in 1754. This effort did not work either. That same year, the process of validating WPR
changed, the viceroy and his board were delegated the power to ratify the WPR (Aboites, 1998: 47), but
by then it was too late to fix the problem. The Crown had to accept the lack of order, which was itself a
result of the conquest. The failure in creating a full record of tax collectors and water users was, at least
partially, due to the fact that in MC mercedadas allowed the distribution of water for public purposes
(Suárez and Birrichaga, 1997: 40 ff.), but at the same time, the appropriation of water became a sign of
social status and a well established economic WPR privatized water, treating it as a commodity (it supra,:
75).
Then in 1822, the MC municipal board (Ayuntamiento), while looking to make water available to
the population, mandated that homeowners with fountains in their properties (whether with legal PR or
Economic PR) must allow water deliverers (Aguadores) and neighbors to use fresh water without
payment. The decision opposed two different visions of water: water as a common good and open to all,
and water as a commodity in private hands. As one may have expected, the municipal decision raised
conflicts for water control in a city where water valves and their control were under private ownership
(Suárez and Birrichaga, 1997: 40ff.).
83
Another central problem was that the legal framework did not provide alternate ways to obtain
legal WPR. The permits granted at the beginning of the 18
th
Century lasted one and a half centuries.
Water permits granted in 1710 (las Ordenanzas del Agua) were in use until 1846. In Mexico, as I already
mentioned, WPR were based on mercedadas, but there were apocryphal mercedadas and the process of
litigation to define the legitimacy was slow and expensive. The existence of apocryphal mercedadas was
connected to the fires that occurred in the city in 1692, which destroyed water permits, thus making it
impossible to find out how many water permits (mercedadas) the Spanish Crown had granted (S&B,
1997: 50 f.). To avoid worsening the situation, creation of more Mercedadas was suspended. In the
meantime, rational players acting as opportunistic profit maximizers created apocryphal water permits,
which led the local government to exacerbate its lack of control on the quantity of water obtained and also
on the identification of the location of the ultimate users of water.
An alternate and effective way to acquire legal PR was from the operative side. Legal WPR were
obtained from exchanging construction of water infrastructure, and for providing maintenance to
hydraulic infrastructure (Suárez and Birrichaga, 1997: 42ff.). This situation reminds us that the MC
governments have a long history of not been able to create effective and long-lasting programs for
maintenance of hydraulic infrastructure—documented insufficiency begins in the 18
th
Century.
Thus, the problem of water was related to both the creation of legal WPR, and the maintenance of
infrastructure. The former problem was addressed in a mixed way, mostly in a centralized way. The
Spanish Crown decided and the viceroy and his team implemented, but implementation without
accountability bolstered a very discretionary system for allocation of WPR. The model of decision
making did not improved much after Mexico became an independent country, because the lack of fairness
on water distribution and apportionment continued.
Officially, the Ayuntamiento controlled water selling and leasing. But the level of WPR was so
high that in 1854, MC had 806 sources of water, of which 95 percent were privately owned (S&B, 1997:
53).
84
The lack of fairness was not only linked to private investors and individual owner of sources of
fresh water, but worse still, in 1857, the assets of the Catholic Church were confiscated by law while the
Art. 27 of the Constitution was amended, resulting in the loss of legal rights for the indigenous
communities, making them incapable to defend their interests within their territories, including the
defense of their water PR (Mendieta, 1983: Wobeser, 1983).
Moreover, once private WPR were created they were secured, since the municipalities had no
power to enforce their own rules and decisions, and because governmental officials developed the
proclivity to support private interest (Suárez and Birrichaga, 1997: 75 f.). The defense of private interests
made it easier to solve water conflicts among municipalities (which have never been easy to solve in
Mexico) than to defend communal water rights in conflict between a municipality and an industry, or
between communities and private investors, let alone to defend communal WPR in conflicts for water
control among industry, investors, and communities (Suárez and Birrichaga, 1997:59-75).
Thus, during the colonial era, the administration of water was a local issue. The assertion may be
valid if we consider that until 1803, shortly before the independence from Spain, municipalities were not
allowed to grant WPR (Aboites, 1988: 47). In practice, municipalities kept the operational control of
sources of water and apportionment of water continued until the end of the 19
th
Century. And even though
legal rights recognized water as a common good, economic rights treated water as a commodity. It was
sold, bought, leased, mortgaged, and used based on private agreements, and that trend of transferring
WPR did not change in the independence era.
Thus, water became a means of accumulation based on discretionary allocation of property rights.
The antecedent comes from the encomiendas and mercedadas granted by the Spanish Crown; then the
municipal council granted wealthy people permits to provide water to MC, and those permits were still in
use at the end of the 19
th
century. Thus, although some writers imply or assert that the creation and
protection of WPR was a local matter, in reality it was a mixed matter: a centralized policy designed from
the Crown in Spain deciding overseas to whom to delegate the authority over sources of water and even
granting the ownership of rivers, lakes, and springs. The counterpart was the local implementation of
85
those decisions by the viceroy and his team, which also included making decisions on maintenance of
water infrastructure, water conflict resolutions, and rules’ enforcement (Sánchez, 2003: 312f).
The result of the water administration was a high level of water privatization, which was
incentivized by discretionary decisions benefiting investors close to the Crown and the viceroys. The
level of water accumulation was so outrageous that, e.g., one of the springs of Chapultepec that provided
water to the whole of Tenochtitlan (as explained in the first part of this chapter) in the colonial era was
owned by just one land speculator: Salvador Malo (Cuchí: n.d.). The trends of water management and
privatization of water did not change much after the independence war. A second example that shows the
level of water privatization is that, in 1884, 47 springs that provided water to MC belong to only one
owner: José García. At that time, the MC municipal board considered buying those springs in order to
keep them under public ownership (Aboites, 1998:34).
The above happened because, after the independence from Spain, the new government was not
able to take control of water. The rules to do so, at least for MC, were first defined in 1840. In the
meantime, water governance was under control of municipalities and several community organizations
and, mainly, private owners (Aboites, 1998:46 ff.). In the first decade of the 19
th
Century MC had 505
private water sources and only 28 public water sources to provide water to the city (up. supra,: 35).
Euphemistically, it is asserted that there were attempts to privatize the service of water to the city in 1857,
1884-1885, and later in 1913, while the sources of water were under de facto effective privatization (see
Aboites, 1998: 79).
For those sources of water under Federal control, by the middle of the 19
th
Century, the president
exercised discretionary control on water sources such as rivers (in particular, those that can be navigated).
For example, in 1853, Santa Anna ordered the joining of the waters from Santa Fe and from Desierto de
los Leones (two locations in the south part of the basin—see location in Figure 3). He also allowed
mixing of clear and brackish water to increase energy for power production purposes, even though by
doing so of the resulting water was of lower quality for the towns using it down the river (Aboites, op cit.:
48). The position of the government was set for the upcoming federal governments.
86
At the same time, there was water scarcity in the city. The lack of water in several neighborhoods
in 1843, according to MC’s municipal board rationale, was because loss of water due to infiltrations,
water stealing, increasing population, and droughts (Suárez and Birrichaga, 1997: 55f). Upcoming MC
governments will repeat and paraphrase that answer countless times—even the present MC government
has used the same explanation.
4.3.2 Contemporary WPR
After the independence from Spain, the role of a central government was limited to primary
creation of PR and the protection of prior appropriation property rights at a federal level, while
municipalities had a broad range of action on creating new property rights (Sánchez, 2003:312).
Although the argument of decentralized creation of WPR lures the social mind, the outcomes of
local implementation, in the case of MC, did not produce the positive expected results. Instead it bolstered
discretionary decisions, paired with the lack of an adequate legal framework demanding accountability,
which led to a high concentration of WPR.
Whether the government wanted to reverse the process of uncontrolled privatization or not,
federal control of water started at the end of the 19
th
Century. Solutions to water conflicts before the end
of 1880’s were adjudicated under civil law, or for the same matter, under the private property approach
(Aboites, 1998: 52). The Constitution of 1857 set the basis for a change.
The Constitution of 1857 stated in its Article 72, Section XXII, that Congress had power to enact
laws on the general means of communication and post-roads and post-offices, which was used as the legal
basis for the intervention of Federal Government control of water. The General Communication Routes
Law (LGVC, Ley General de Vías de Comunicación, June 5, 1888), delegated to the President the power
to supervise, regulate, and police the seas, lakes, lagoons, rivers, canals, and all types of infrastructure
built with federal financing. The law delegated the power of administration and policing of water, but it
did not grant their ownership at that time.
87
If, as some writers claim, the LGVC intended to stop the monopoly of sources of water, by taking
control of them, the LGVC was too vague for that purpose. It did, however, enable the Federal
government to jump over local arenas and take control of local infrastructure built by communities
(Aboites, 1998). In practice, while doing it without a plan, technical capability, or even knowledge of the
resources to be controlled, conflicts for water appropriation rose. Hence, the vagueness of the first LGVC
was corrected and federal attributes enhanced in posterior laws. The laws of 1894, 1896, and 1902, and
the Law of Water under Federal Control of 1910 (Ley de Aguas de Jurisdicción Federal) (Sánchez,
2003:313 ff.) granted the ownership of water.
But what the LGVC did define was the issue of legal property and jurisdiction over water, which
was a necessary step toward solving the problem of water appropriation. It was also linked to the control
of privatization of sources of water and water distribution. At the same time, it attempted to manage the
increasing conflicts among groups for water control (Aboites, 1998).
There is a second explanation for federal control of water. As explained in the previous section, in
the middle of the 19
th
Century the President in office favored the provision of water for power generation
and industrial uses. Thus, water became a pivotal factor for producing hydraulic power to be used in
machines in mills, factories, and haciendas, and the incentive for Federal control was pressure coming
from business owners to do so.
The provision of water to produce power demanded trans-boundary municipal resources, which
means the Federal Government was setting the bases for creating hydraulic infrastructure that needed
huge amounts of water coming from a variety of sources and passing through several jurisdictions. In
order to avoid countless legal and economic fights, centralized ownership was needed. Hence, the Federal
Government was looking to gain control over water then under municipal control to achieve both legal
and economic appropriation (See Aboities, 1998: 31 ff.).
The economic appropriation of communal water by industry owners, in a way, at that time had
been facilitated by the lack of legal WPR protection by authorities and communities—not without
collective resistance—while the creation of legal WPR came from a set of decrees. The decree of
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December 18, 1896, allowed the President to grant permits and to allocate water under Federal WPR for
agricultural and industrial uses. Since the implementation lacked enforcement and homogeneity, the
government had still been unable to create a full record of water users. Congress ordered that the
President would re-validate all WPR. The order was aiming for comprehensive control of the rights
granted by states; and by doing that, the decree set the antecedents for regulating access to federal waters
to individuals and industries. Unfortunately, it overlooked granting communities access to WPR (see
Aboites, 1998; Sánchez, 2003:312).
Slowly, the new centralization was reversing the states’ control of water. In the state of Mexico,
the law of water of 1896 empowered the governor to grant water permits over state waters. Using the
granted powers, in 1902, the State of Mexico leased waters from the Lerma River to provide water to MC,
but the centralization was already in place, and the Federal Government invalidated the agreement under
the argument that rivers were under federal jurisdiction, not under state control. By then, growing legal
control of water by the federal government was already ruling not only who had access to water, but also
the amount of water granted, although they were just in legal terms and enforced only in important
situations as in the case of Lerma (for detailed description see Aboites, 1998, 85). .
As part of that centralization, the Constitutional reform of Article 72 in 1908 defined water under
public domain (dominio publico). It defined what should be understood as federal waters and created ad
hoc regulation, and finally in 1910, the bases of the modern and centralized water administrations were
set: powers for regulation, administration, and policing were granted to the Federal government.
The first Law and its Regulation (reglamento) of waters under Federal jurisdiction summarized
the efforts of regulation, and the control and administration of federal waters. They empowered the
President to regulate, to administer, and to police. Regulation included granting WPR regarding amount
of water and uses of water, to ratify previous WPR, and to control water infrastructure. Administration set
the bases for water administration, defining uses of water, time of WPR granted as a function of
investments in infrastructure built, grants for WPR covered from 20 to 99 years, and policing power.
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In 1910, the Law of Water stated that waters of federal jurisdiction became of public domain and
of common use, and their possession became inalienable and imprescriptible. It also added the uses of
water—domestic, urban, irrigation, and power generation,. In addition, the Law granted more policy
power to the President of the Republic and stated that hydraulic infrastructure was of public utility. It
therefore granted land expropriation for purposes of building infrastructure (Aboites, 1998: 88).
In practice, full appropriation of water and any other Economic WPR were transformed into
usufructuary rights, and with a president copying European models, access to water was designed to favor
the intervention of private investors: “the law was tailored to accommodate a new phase of capitalism in
the use of water” (Aboites, 1998: 88, citing Kroeber). Since the Law of Water of 1910 demanded detailed
studies and complex requirements to grant WPR, it promoted the creation of WPR concentration in the
few investors able to fulfill those requirements. The new rules set a new condition related to water: water
as a business demanding trans-boundary resources, under the protection of the federal government as the
ultimate water authority (Aboites, 1988).
Over time, governments saw new valuable characteristics not only in fresh water but also in
wastewater. In 1900, the state of Hidalgo forecasted the benefits of using wastewater for irrigation
purposes and contracted its use with a company, but the FD opposed, and the disagreement lasted until
the end of the first decade.
In 1917, a new Constitution made clear three fundamentals regarding water still in use: water is
the property of the Nation, it is controlled by the federal government, and WPR are inalienable and
imprescriptible. The new constitution granted the distribution of water attached to the distribution of land,
so WPR were attached to land PR. More over, the Constitution honored original WPR to towns and
communities, while invalidating any WPR granted by local authorities; it also granted communities the
ability to get the water they needed from the closest properties with water. Two forms of water
appropriation were granted: Individual and collective. Individual and collective WPR were granted by the
federal government, and since 1915, the restitution of primary water rights for corporative-agrarian
90
purposes was honored. The Constitution set the criteria for contradiction on use of water, prioritizing
social use over individual use of water (Aboites, 1998: 92 f.).
To some writers, this process reversed the high concentration and privatization of WPR toward
the more communal legal WPR of the colonial era. On the one hand, those writers may be accurate since,
from the legal point of view, communities were granted their original WPR. On the other hand, as was
analyzed in previous sections, implementation of legal WPR has been an ongoing issue in the history of
WPR in MC because common goods left in the hands of local authorities, without a clear and effective
legal framework demanding accountability, led to high levels of discretion, which ended up in de facto
privatization of water. In the process neither the Crown, the viceroy, nor municipal councils have had the
interest or willingness to pay the political cost of getting an accurate record of sources of water including
water users and amount of water used. Therefore, the degree of economic WPR has been unknown, which
means that in practice, the government has not had effective control of water; or, at least, the formal
authorities had not had enough incentives to enforce legal WPR. Thus, after the turmoil produced by the
Mexican revolution, in a way, the cycle of water appropriation was repeated again since 1915, this time
with two clear phases: the grants coming from the president, and then the issue of physical possession of
water.
In addition, since the post-revolution era, water has been taxed. The rationale to do so was that
the government had the right to share the benefit from water exploitation performed by private owners, to
improve the public administration of water and policing, and to provide conflict resolution on water
issues. President Carranza began official water taxation in 1917. That tax was used to stop water
speculation, at least with regard to water grants for power generation; the tax applied from the time the
permit was granted to the time the finished infrastructure was approved by the authority in charge. As part
of the priorities of use of water, water for human consumption—whether public or private, for public
works, for agricultural and forestry uses—were excepted from this tax (Aboites op cit.: 94 ff.).
An immediate consequence of taxing water is that, in 1918, the federal government started a
more realistic census, but the effort lasted several decades while showing the federal government’s
91
inability to complete the census. Two main factors were exposed in the attempt: the level of conflict
between the federal and municipal governments for the control of water sources, and the competition for
water tax collection. These conflicts demonstrated the lack of control of federal institutions, which
resulted in water becoming a factor of political control.
Although the federal government maintained legal control of water, the effective control
remained within municipalities. To reverse the process, a decree in 1925 ceased taxing water for irrigation
purposes up to annual consumptions of 100,000 m
3
(January 20, 1925). Apparently, the Federal
Government preferred losing the tax revenue to sharing the control of water with municipalities, which
shows irreconcilable levels of conflict between the governmental levels. The solution of getting detailed
water legislation would come within the next half decade.
In 1926 the Federal Government declared private property for agriculture use as of public use
(utilidad publica). Then in 1929, the Ley de Aguas de Propiedad Nacional (LAPN, National Waters
Property Law, Art. 47) annulled taxes on water, except for power generation. It also granted the
representation of the Nation to the Federal Government, and established that only the President of the
Republic had official approval to delegate the use and usufruct of national waters, as well as the quantity
to be used.
The law of 1929 is a cornerstone in water control because it consummated the legal control of
water by the president. The law confirmed water regulatory powers to the President who also was granted
the prerogative to say who has WPR, to grant amounts of water, and under what specific conditions the
grants may be suspended. Water permits were now granted for up to 75 years. Moreover, the LAPN
granted to the President the power to organize groups interested in water. More importantly, the Law
aimed to identify WPR without time limits and shift them by limited-period grants, hence the 75-year
time limit (Aboites, 1998: 101; LAPN, Art. 6,7, 31). The LAPN was implemented through three federal
secretaries (Art 9).
At the beginning of 1934, an amendment to the LAPN reinstated water taxes on usufructuary use
of water. In order to maintain WPR in force, taxes were re-established, but municipalities and state
92
governments were banned from imposing or collecting water taxes. Ten months later, the Law was
amended again to regulate municipal provision of water. The combination of these amendments is known
as the Law of 1934. The Law ratified the regulatory, policing and enforcement powers granted to the
President of the Republic and federal agencies—the powers they had partially held since 1888.
The Law of 1934 allowed municipalities to build hydraulic infrastructure after authorization by a
federal secretary. Assigning quantity of water to municipalities is a Federal prerogative, as well as
policing the quantity of water consumed by municipalities, but municipalities have the authority to price
water.
Until de decade of the 1930’s, the main concerns about water involved its production for
agricultural and industrial uses. In fact, the Secretary in charge of water regulation and enforcement was
the Secretary of Agriculture and Promotion, and until that decade the decrees relating to water show the
direct concern of the Federal government regarding the provision for potable water to urban areas, while
allowing municipalities to be in charge of the provision of potable water to their populations. The Federal
Government then supported the policy with the creation of several financial organizations at a federal
level. At the same time, the federal government recognized that the provision for potable water was an
important and urgent issue to be solved, and that the direct responsibility held by municipalities. The
federal government demanded a comprehensive approach, and with time the concern became a technical
and highly specialized task.
In 1948, the construction of infrastructure for potable water and sewer was declared of public
interest. The federal government, therefore, was allowed to take control of public provision at a local
level. In many cases water provision was performed under public-private-partnership agreements (See
Aboites, 1998: 189).
Later, the Law of Waters Property of the Nation of 1972 emerged as the ultimate water
framework. It ratified the federal government being in charge of regulation of water, rules
implementation, water preservation, and usufructuary use of water for both surface and groundwater. It is
actually in charge of regulation, administration, and water preservation, as well as for setting the criteria
93
for efficient use of water. Water was declared of public use, and the knowledge of the amount of water
available, and its planning at a local, regional, and national levels, was the responsibility of the Secretaría
de Recursos Hidráulicos—the Water Resources Secretary and the institution that created CONAGUA.
The Law of 1972 also detailed what must be considered water under federal control, and also extended
the federal control over water quality issues and over the creation of water-permit-users’ public records.
In addition, the law showed emerging concerns for the prevention and control of water pollution.
In addition, the creation of a census of water users is of public use and a federal responsibility,
and for the first time the administration of water in MC was explicitly defined as a federal responsibility
(LAN, 1972:Art, 17, fraction XII). Even though the water administration is seen as a comprehensive and
united process that requires interaction and cooperation, the coordination is still maintained as a federal
responsibility. Previous regulations concentrate on water for irrigation, but concerns for water for urban
uses were moved from de facto appropriation to legal property rights and two clear changes appeared in
the law of 1972.
First, states and municipalities wanting to fulfill their need of water in towns and cities needed
federal approval for water for urban use purposes (LAN, 1972: Art.28). This applied whether the
infrastructure was built with local funds, a local-federal combination, or even totally paid with federal
funds. Thus, the federal government was willing to share the control of water-infrastructure, but neither
the control over sources of water nor the control over its use.
The second relevant characteristic is that, unlike during the colonial and the early independent
eras of the country, disobedience and resistance to law and its bylaws was no longer a civil issue but a
federal crime. Unauthorized use of water may be punished with between six months and six years in jail,
and the construction of unauthorized infrastructure may be penalized with one to ten years of jail time
plus pecuniary penalties (LAN, 1972: Arts 180-183).
For the first time, the regulatory framework moves from treating water as mere privilege, power,
or immunity toward the creation of full legal WPR. It not only regulates the relations among agents
regarding the control of water, it defines the ownership of water, it defines a process to assign or transfer
94
water and its use, and it defines a correlative force for individuals not to interfere with assigned
privileges. This finally led to the creation of concomitant enforceable duties.
The law of 1972 is the first federal Mexican law to define not only the water privileges assigned,
but also expressly states the right of exclusion with specific penalties to those who interfere with the
privileges granted to water-owners regarding the use of valuable attributes of water. After a long effort,
the legislative process was able to create complete legal processes that can be considered as the creation
of legal WPR. The issue of the legal force that the law of 1972 entails will still be tested through its
implementation, and it will be a matter to be solved in subsequent times on a case-by-case basis.
After several amendments to the LAN, the President enacted the new Law of National Water
(LAN) in 1992 that became the legal gateway to the current water use in MC.
The Law of National Water of 1992 ratifies the President’s authority to regulate use, distribution,
and control of surface and ground waters In addition, it focuses on three main characteristics: quantity,
quality, and preservation of water. The law also extends the President’s authority to essential water assets
under federal protection (Art. 3, 113).
Unlike previous laws, this law protects water quality, and recognizes physical, chemical, and
biologic agents able to jeopardize the quality of water. It then sets maximum permissible limits of these
agents in complementary regulations.
The law ratifies the Presidential power for regulation, preservation, and exercising public domain
over water that previous laws had already granted. In addition, it imposes on the President the duty of
having a sustainable management of basins, and adds the responsibility for comprehensive management
of water, as well as coordination among different orders of governments, without interfering with the
states’ and municipalities’ rights and attributions.
For the implementation of the regulations, the law recognizes the existence of an administrative
tier between national and local water administration, including the National Water Commission
(CONAGUA) and new entities called Basin Committees. The law empowers these institutions to organize
the exploitation and administration of water, and to grant water permits to Municipalities, states, and the
95
FD. While CNA has national jurisdiction, the basin committees have regional jurisdiction, and the Law
acknowledges both as the water authority. Moreover, the Law grants CNA technical, administrative,
financial, and managerial autonomy, and ratifies its executive power.
According to the law, the coordination among orders of government and water stakeholders must
be organized into basin councils, which are the link between CNA and federal, state and municipal
governments, organization, and stakeholders. The councils have jurisdiction over the geographical basic
unit for administrative and management purposes defined by the law: the basin.
The Law acknowledges the protection of basins, sources of water, recharge of aquifers, and inter-
basin water exchange as of public utility. For the first time, a national law not only includes the
measurement of water quantity and quality and hydrologic cycle, but also defines them as of public
utility, and imposes on CONAGUA the duty of publishing basins’ water availability biannually.
The CONAGUA and basin committees are part of the federal organization, but with specific and
regional powers. Although, administratively both organizations depend on the Environmental and Natural
Resources Secretary, hierarchically, the top officials depend on the president who directly appoints them,
and the officials in the next levels depend of the top officials. Thus, their administration follows a vertical
and centralized organization.
According to the law, comprehensive water planning for surface and ground water is a national
priority and a national security matter. It recognizes eight uses of water: agricultural, environmental,
consumptive, domestic, aquaculture, industrial, livestock purposes, and urban for human consumption.
The law defines rights and attributions; conditions to stop, invalidate, or revoke usufructuary
water permits; and imposes on CONAGUA the duty to maintain public records of water users, as well as
for all the WPR and their changes in any form (e.g. renewal, extension, changes, corrections, transfers).
Violations of the water law were linked to the penal code in which illegal activities are punished.
The battle over WPR is an ongoing process in Mexico, as the vast reforms of legal WPR show.
Between 1992 and 2008, the Law of National Water of 1992 has had seven chapters and one section
renamed, 114 amendments, 80 additions, and 16 repeals.
96
Currently water in Mexico is a human right. The Constitution not only assigns the government the
duty to provide water, but also demands that the water provided must be salubrious, easy to access, and in
quantity sufficient for personal consumption and domestic use. Additionally, the Constitution requires the
distribution of water to be fair, to respect principles of sustainability, and to be the result of collective
decision (Constitution Art. 4).
The legal framework is complemented with the LAN, whose special characteristic is that it grants
the power of exclusion. The LAN explicitly determines that the water authority has this power, and the
authority is tied to a graded system of penalties (LAN, 1994: Art. 119-123).
Moreover, this right of exclusion has been maintained in the Law of National Water of 1992 and
its amendments. The LAN grants CONAGUA and the basin organizations (CONAGUA regional
representation) the power of exclusion, and therefore the prerogative to suspend the service of water
under the following set of cases: a) appropriating water without a legal water permit; b) not installing
water meters, or not keeping records of water appropriated or used; c) exploitation of sources of water in
contravention of governmental standards, or exceed the volume granted; d) preventing CONAGUA or its
regional representation from collecting data or refusing to deliver the required data.
Perhaps one of the most important characteristics of the LAN is not the existence of a system of
penalties, but that the penalties apply not only to direct water users but also to third parties who—directly
or indirectly—fall under any of the aforementioned cases. Whether the third party ordered the
construction of infrastructure, built it, or performed the actions, they can be sanctioned; the penalties
reach to those who order or perform direct actions that violate the LAN (LAN, Art. 119).
The penalties include not only the imposition of monetary fees (as a multiple of the Daily Official
Minimum Income for the FD—OMI), but also the seizure of infrastructure built, as well as machinery and
assets used for well construction, implicitly still on the site, which can be kept in custody until the
damage have been fixed in terms defined by the LAN (LAN, 1993: Art. 120). Additionally, the penalties
of the LAN are also explicitly linked to penalties in the following laws.
97
LAN Monetary Fees in OMI Law of National
Resources
National Ecology Law Additional law that
apply penalties
a) 200- 1500 (mainly related
to lack of water permits or
information issues)
b) 1200-5000 (unauthorized
relocation of wells or
polluting water)
c) 1,500-20,000, (exceeding
volumes granted, using
unauthorized water sources,
extracting or using water in
controlled areas without
permits, not complying with
responsibilities in the water
permits. Recidivism is
penalized with the triple the
original fee without
exceeding the maximum fine)
LAN can invoke the use of
public force to implement
resolutions
The office that grants
water permit can
enforce the penalties
included in the
agreement (Art. 77)
Jail of 2 years to 12
years and fees from
300 to 1,000 times the
OMI to those who
appropriate a national
resource without a
legal permit (Art. 149,
150)
Destruction of the
illegal infrastructure at
the builder’s expense,
and no compensation
whatsoever (Art. 151)
LAN refers to the National
Ecology Law (Ley Nacional de
Ecología) instead of referring to
the Ecological Balance and
Environmental Protection
General Law
Administrative penalties,
including fees (30-50,000 OMI),
temporal or permanent shut-
down of the site, and
confiscation (Art. 171)
It includes a specific process to
verify compliance with the law
This law can invoke the use of
public force to implement
resolutions
Law of
Administrative
Procedures sets
procedures for
verification (Art
62-69) and the time
in which the
penalties must be
enforced
Metrology and
Standards Law (see
p. 177)
Federal Penal Code
sets monetary fees
up to 1,000 times
the minimum
income where the
crime was
committed. and
acknowledges the
existence of OMI
Official standards
Table 2 Water Related Penalty System in Use
Source: LAN, 2014; Law of National Resources, 2013; Ecological Balance and
Environmental Protection General Law, 2015; Federal Penal Code; Metrology and
Standards Law, 2009.
The Ecological Balance and Environmental Protection General Law states that the protection of
the environment is responsibility of both the government and the society. It requires the sustainable use of
water, regulations that promote water preservation, preservation of the minimum flow rate in rivers and
the recharging rate of aquifers, and the operation and administration of water systems under principles of
sustainability (Art. 1, 5, 88, 89). This law makes mandatory that all the permits that violate or contravene
the law be null, and requires the public officials who granted those permits to be sanctioned or penalized
(Art. 181). Moreover, this law grants the right to any citizen or corporation to legally contest any official
act or permit that harms the environment, the natural resources, or the public health, and to demand
implementation of actions to correct the violations, including the suspension and revocation of water
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permits that harm the Nation’s water or the ecological balance, as long as the complainer provides
evidence. This law not only defines administrative penalties but the administrative actions can also be
referred to the Federal Court of Fiscal and Administrative Justice for implementing sanctions. These
actions are added to the sanctions due to environmental crimes defined by state laws (Art. 188).
More importantly, both the LAN and the Ecological Balance and Environmental Protection
General Law are empowered to invoke the intervention of public force to implement inspections, to take
control of water sources, and to impose penalties on those who violate any of those laws. Thus, different
from other legal frameworks that lack the definition of a power to exclude, the current Mexican legal
framework defines an actor with power of exclusion, a graduated penalty system, and both the LAN, and
the Ecological Balance and Environmental Protection General Law can call on the use of public force to
make the law prevail.
Power of exclusion has an exception. In the case of water for urban and domestic uses,
CONAGUA cannot exercise the power of exclusion on the grounds of lack of payment. The federal law
that defines taxes for profiting from the Nation’s goods and services (Ley Federal de Derechos, 2015, Art.
192-E) prevents CONAGUA from cutting off water agencies who are not meeting their bills, although the
Ecological Balance and Environmental Protection mandates stay.
Additionally, the Public Servants Federal Law asserts that public officials’ actions, or lack
thereof, that systematically violate individual and social rights, or violate the Constitution or federal laws
in ways that harm the Country, the states, or the society can be impeached; the sanctions range from an
admonition to being removed from their positions (Art. 6-8).
After the review and analysis of almost seven centuries of history of water use in MC, and a
number of changes for both the creation of formal WPR and their legal protection, what we do not know
yet is where the links between formal and informal WPR are broken.
MC governments have moved from the possession of water as a whole to the creation of very
specialized and specific regulations to protect the legal possession of valuable attributes of water. At the
same time, they moved from the imposition of power and force as means for the appropriation of water as
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a whole, to the creation of formal rules to protect valuable attributes of water, while imposing restrictions
and penalties on unauthorized water users.
Thus, since the colonial era, there has been a documented continuing effort to create legal WPR,
and to impose restrictions, whether legitimate or illegitimate, for accessing fresh water in MC. By the
start of the 21
st
Century, these were transformed into formal rights of exclusion. However, in order to
understand the creation of WPR, we must go beyond the creation of simple instrumentalities protected by
the government; we must look at their consequences, which is the goal of the next section.
4.3.3 Contemporary Mexico City
After seven centuries, Tenochtitlán became Mexico City (MC), a city of 21 million people. It is,
generally, identified as a set of 16 boroughs (known as the Federal District or FD), plus 59 municipalities
located in the State of Mexico and one municipality in the State of Hidalgo (the metropolitan
municipalities). It became—socially, economically, and politically—Mexico’s most relevant city.
4.4 The Current Potable Water System in MC
The system of potable water in MC uses two main sources of provision. Local sources of fresh
water that is welled within the basin, and freshwater brought to the city by pumping it from a sub-system
of dams, channels, and rivers located within three nearby states. Then, the water is used, disposed, and
finally leaves the basin after being used—mostly just once.
In Mexico, water is a common good under governmental administration. A federal Agency, the
National Water Commission (CONAGUA), is in charge of the administration of water across the country,
which has legally empowered to retain and to delegate authority over water management to public and
private entities. It is also in charge of the coordination for water management among the operative
agencies in the states and municipalities. CNA provides water throughout water permits and contracts to
public and private water consumers, and assumes that “water users profit approximately the amount of
water granted and that majority of water users are on the Official List of Water Users (CONAGUA,
2009:86).”
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Provision of water, under CONAGUA standards, is whether a household is provided with pipe
water, with pipe water within the property, access to water through public pipe water, or throughout a
different household, regardless the quality of the water provided. Under this definition CONAGUA has
provided water up to 98.7 percent of the population in FD and 96.6 in the State of Mexico by December
2012 (CONAGUA, 2009, 2013).
In the case of MC, besides CONAGUA there are several governmental organizations in charge of
the provision of water: SACMEX (Water System of Mexico City) in the case of the FD, CAEM (State of
Mexico Water Commission) in the case of the State of Mexico, CAASIM (Inter-municipal Water and
Sewer Systems) in the State of Hidalgo and municipal agencies in most of municipalities. All of them,
together, are in charge of the provision of water to their jurisdictions, plus The Valley of Mexico’s Basin
Committee (OCAVM), in charge of the regional coordination and the regional water administration.
4.5 The Contemporary Crisis of Water
Practitioners, scholars, and the Federal, State of Mexico, and FD governments assert that MC has
a crisis of water. The problem is so widespread that, whether due to lack of quality, quantity, or both, it
affects more than nine million people (GDF, 2010, 2012; IMTA, 2012). Two million people get potable
water only once a week and three million people get water within an irregular schedule, only for a few
hours every day (CONAGUA, 2010).
In MC only 56 percent of the population gets potable water that meets government quantity and
quality standards. It bolsters negative financial impacts on both the city and on disadvantaged citizens—
the former runs a deficit, and the latter pay 14 times more money for eventual provision of low-quality
water compared to the permanent high-quality water provided to wealthy people.
Asymmetries of quality, quantity, and price, as well as inadequate institutions, are reinforcing
agencies’ confrontation and promoting social conflicts.
Although the crisis of water is not a new phenomenon in MC, today its effects are critical. The
deficit of water by 2010 was 2,500 gal of water per second—and starting dates of the present crisis of
101
water may vary from 1940’s to 1980’s, which are concurrent to important demographic events in Central
Mexico. Thus, in modern times the crisis of water has been a national security problem and permanent
recurrent issue within the Federal, state, and local political agendas for decades (Serrano, 2012; GDF,
2012).
Currently MC has a deficit of water of 10 m
3
per second (2,640 gallons per second). Since 2009
the CONAGUA has used the Relative Water Stress Index to measure the level of stress in water
sources—as the quotient of water used divided by the available water multiplied by 100. If the quotient is
greater than 40 percent, there is a high level of stress. In 2009, MC’s RWSI was 182 percent and
classified as very high; in 2013, the water stress remained very high (Semarnat, 2009: 65; 2013: 59).
Moreover, the annual balance of the Valley of Mexico aquifer, recharged water minus pumped water,
shows a deficit of 713.6 million m
3
(GDF, 2012:40).
To face the increasing deficit of water the government has had two main strategies: a) increasing
the importation of water, from sources of provision farther away—through inter-basin transferences; and
b) pumping water from deeper wells. With these main strategies, by 2020, the FD government aims to
reduce its current deficit by 7.7 m
3
per second.
Thus, the availability of water to MC is limited to two kinds of sources. Local sources are based
on the use of underground water obtained through a network of wells, springs, and local streams, and
external sources, integrated with a system of rivers, dams, and conduction systems to the main points of
distribution to the city (SACMEX, 2012; GDF, 2010, 2012). Table 2 shows the sources of provision.
102
Provision of water in the FD and State of Mexico per source, units are in m
3
per second
Source System Operative Agency FD State of Mexico Total
Cutzamala CNA 9 5.7 14.7
Wells (PAI) CNA 2.9 5.1 8.0
Lerma SACMEX 4 1.0 5.0
Groundwater SACMEX-CAEM 16.5 16.4 32.9
Springs SACMEX-
Municipalities
0.6 0.8 1.4
Total 33 29 62
Table 3 Provision for Water to the FD and the State of Mexico.
Source: CONAGUA, 2012; CAEM, 2012
4.5.1 Quality of water
Forty-six percent of the water distributed in MC fails to meet government quality standards. At a
macro level, the overexploitation of groundwater provides low quality water at the rate of 3.5 m
3
per
second and the rest of the low-quality water is produced by natural and induced pollution of sources of
water (GDF, 2012: 37). At the micro level there is lack of knowledge of the quality of the water of local
sources of provision and at points of delivery (OCAVM, 2012).
CONAGUA, in coordination with the Federal, state, and local governments, and other federal
agencies, is in charge of the creation of quality water regulation and of the construction of water treatment
plants. The federal government also has its own program of water purification but does not get involved
in construction of water treatment plants (Semarnat-CONAGUA, 2013:56).
Currently, the quality of water is regulated under three Mexican norms. In MC water is routinely
tested for three indicators: for biodegradable organic matter (Biochemical Oxygen Demand after five days
test, BOD), for total organic matter (Chemical Oxygen Demand, DQO), and for total suspended solids
(CONAGUA, 2014). The lack of quality varies by indicator; for example, MC uses water from surface
sources in which seventy-five percent of the water is polluted under biochemical oxygen demand after
five days (CONAGUA, 2011:37).
In 2012, CONAGUA managed 39 water quality monitoring stations in MC—25 for surface water
and 14 for groundwater. Quality analysis of water bodies within MC showed that only one station had
103
high-quality water, six had acceptable-quality water, and the rest showed contamination or high
contamination for both BODs and DQO. Groundwater showed similar problems; from the PAI system,
only 55 percent provided water meeting the government standards (CONAGUA, 2013).
The information on water quality has been controversial and two points are important about the
information provided by CONAGUA and Semarnat. The Semarnat 2014 annual report shows information
on water quality from the year 2011, which contradicts CONAGUA’s information for the same time, and
CONAGUA’s data contradicts local SACMEX and FD government information (See OCAVM, 2014,
CONAGUA, 2012, SACMEX, 2014).
Information about the quality of water provided by SACMEX and the FD also shows important
contradictions and gaps in the distribution of quality water. SACMEX, as the sole operative agency in the
FD, provides potable water to the sixteen boroughs, and asserts that all the neighborhoods located in ten
boroughs are provided only with potable water. Six boroughs also include neighborhoods with provision
for water with levels of iron and manganese above governmental standards, which nevertheless SACMEX
considers drinkable water; and two boroughs (out of these six) have neighborhoods that are provided with
no drinkable water from the distribution networks under SACMEX control (based on SACMEX, 2014).
This situation of variable quality of water provided is a recurrent problem and a highly
controversial issue. According to Semarnat, all the water produced for the FD consumption between 2000
and 2006 was potable, and in 2010, 98.7% of water provided still was potable, but statistics on water
provision show that after 2007 both the amount of water provided to the FD and the amount of potable
water have been reduced. In 2007 and 2008, 3.6 percent of the water provided was not potable (equivalent
to 315 gallons per second), and in 2009 and 2010, 1.7 percent (equivalent to 145.3 gallons per second)
was not potable either (based on Semarnat, 2012:42-3). The distribution of high-quality water varies not
only in quantity, but also in distribution among boroughs, but the institutional rules that promote these
variations are not clear.
The variable distribution of high quality water in the FD is shown in Figure 4. The lines in white
indicate the divisions of boroughs, the shapes in blue indicate the areas with potable water, and shapes
104
with no color indicate areas with provision of potable water that does not fulfill governmental standards.
Areas provided with water that may produce light or severe health affects is not identified in data open to
the public.
Figure 4 Water with Government Quality Standards Distributed in the FD
Note: color blue identifies areas provided with water under Federal quality standards; grey areas within the
white lines identify areas with water without minimum Federal quality standards. Source: SACMEX. Water
quality, retrieved from http://www.sacmex.df.gob.mx/sacmex/index.php/calidad-del-agua.html; accessed
January 4, 2015.
As figure 4 shows, the variation of potable water affects all boroughs; in fact, neighborhoods that
did not have provision of high quality water in 2010 are the areas with no color, which represent 29
percent of the total neighborhoods in the FD (GDF, 2011: 67).
This reduction of water quality in the city is directly linked to the reduction of groundwater
quality. This has been the result of the combination of many factors of which three are the most relevant.
Overexploitation of shallow aquifers, wells located on sites near sodium carbonate landfill areas, and
105
areas without appropriate sewage where waste water streams on the surface, interrelated to cause the
worst problems. The government’s strategy of pumping water from deeper wells has led to a process in
which the infiltration of polluted water reaches shallow aquifers, then the suction produced from deeper
pumping creates a flux of polluted water toward the deep aquifer. Then the water from the aquifer shared
by the FD and the State of Mexico is pumped again, creating a cycle of water pollution (Huizar & Ruiz,
2013; SACMEX, 2011; Mazari, 2009).
4.5.2 Price of water
Piped Water in MC is cheap. SACMEX tariffs for drinking water within FD jurisdiction start at
US$0.16 per m
3
, and in municipalities of the State of México tariffs start at US$0.30 per m
3
. Bulk water
for drinking purposes (before tariffs) is as cheap as two cents per m
3
. MC has a combined tariff system.
There are two main ways to price water: bulk water consumption, where price is regionally
regulated by federal laws, and tariffs of small-scale consumption of water, in which price is regulated by
the local legislature and enforced by water operational agencies or local governments. The price that bulk
groundwater consumers pay varies according to the final use of water and to the zones of water
availability from which the water is pumped or taken. MC encompasses five different zones and therefore
has five different prices of water. The cost per cubic meter of water pumped for general uses in those five
zones varies from US$0.53 ($8.02 pesos) to US $1.36 ($20.50). When the use of bulk water is for potable
water purposes the cost is only US$0.02 per cubic meter within the five zones (Semarnat-CONAGUA,
2014: 171); this price applies only if the daily provision per capita is up to 300 liters, otherwise the cost
will rise up to US$0.50.
States or their operative agencies are empowered to price the water they distribute to their
consumers. The FD has a combined structure of tariffs that includes flat rates, single volumetric rates,
increasing block tariffs, and adjusted increasing block tariffs (FD’s Fiscal Code, 2013), and those
structures are applied to residential, no residential, mixed uses, industrial, and commercial uses.
106
The price of water for residential use is ascribed to the value of the domestic or commercial
building to which the water is delivered. The price of a cubic meter of water for the first block tariff
which monthly consumption, up to 15 m
3
, without any type of subsidy, is US$1.08 per cubic meter
($16.20), while water for industrial and commercial uses is three cents cheaper (CONAGUA B, 2013:
section 1-111; 2012). And the lowest tariff for monthly consumption up to 15 m
3
of water for low-income
consumers is just US$0.16 ($2.33) per m
3
.
Nevertheless, if the water is to be distributed to consumers by government tank trucks, the price is
US$6.18 per m
3
($92.71) (GDF, 2014), which is three times the average cost worldwide. Thus, people
buying water from tank trucks end up paying US$92.70 for 15 m
3
, which is similar to the price in Sidney
($93.60) and even more expensive than the water people pay in in Netherlands ($46.58), Los Angeles
($48.90), or London ($64.50) (Based on GWI, 2014, and OECD, 2012: 210).
The problem of pricing water in MC is also related to policies of quantity and quality of water
provided. In 2014, 260 neighborhoods were granted a fixed tariff since they were provided water only on
an irregular basis (supply by batches). The bimonthly tariff they paid fluctuated between US$6.07 ($91)
to US$41.60 ($624) depending of the value of their property (FD-Secretary of finances, 2014).
Even though the FD government had a record of 2,077,000 users for residential, non residential,
and mixed uses of water, and only 45 percent of them pay their water bills, the FD has been at the top of
tax collection among all the states in the country (GDF, 2014b), and followed by the state of Mexico that
collects only 35 percent of the price of the water it produces.
Water tariffs in the municipalities of the State of Mexico are more diverse. Besides CAEM,
which is the state operative agency in charge of water administration, there are 34 more operative
agencies in MC’s metropolitan area in charge of the water administration and tax collection within their
jurisdictions (Soto, 2007). The criteria for water tariffs they use are varied and have a common factor:
they are settled as a factor of the daily minimum wage in MC, which currently is US $4.67 ($70.10)
(Conasami, 2015).
107
The gaps of the structure of tariffs within MC are significant. A good example is the gap between
low ends and high ends of the structure of tariffs across municipalities. The municipality of
Huixquilucan’s low end is three times the low end in the municipality of Atizapan and more than five
times that in the FD. High ends also show important gaps; Huizquilucan charges 2.3 times more than
Atizapan does and 115 percent more than the FD charges. In addition, several studies assert that low-
quality water provided on irregular basis (by tank truck) costs 14 times as much as high quality water
provided regularly through water networks – or even higher.
While formal WPR focus on the creation of a legal framework, and allows identifying the
consequences of having those WPR, they do not explain the conditions and factors that promote gaps
between legal and economic WPR. The contrast of the two processes, in the case of MC, seems to have
deep contradictions that remind us that although WPR define actors and delegate rights, duties, and
obligations, it is not clear why legal WPR do not match economic WPR in the case of MC.
Once we understand the status quo of WPR, and the consequences of the contradictions between
formal and informal WPR are known, the next step is to identify the factors that promote the conflict
between formal and informal WPR. The identification of those conflicting factors at an operational level
will help us to understand how they promote or deter cooperation and coordination among governments
in charge of the provision of potable water to MC.
Moreover, the analysis of conflicting factors will help us recognize how the legal power has been
set in action and in in what ways the legal WPR lack legal force, whether because they have created a
right where none exists or because they protect an interest where one does not exist. In either case, in the
next chapters I will analyze the contextual institutional factors that promote different orders of
government and their water agencies to create both the asymmetrical appropriation of water regarding
three characteristics: quantity, quality, and price of water; and the lack of appropriate water administration
at a metropolitan level.
108
Chapter 5: Legal and Economic Control of Water
5.1 Institutions for Water Provision to MC
CONAGUA, for administrative purposes, divides the country into five big regions or meso-
regions. The systems that provide potable water to MC (the Cutzamala, Lerma, and PAI systems) are
within the administrations of Region XIII Valley of Mexico Water and Cutzamala, with some parts under
the administration of Regions IV and VIII.
CONAGUA is in charge of the administration of the Cutzamala system, including operation,
improvement, and maintenance of infrastructure. This includes water appropriation, primary lines of
conduction, storage of both potable and non-potable water, production of potable water, and delivery of
bulk water to SACMEX and CAEM.
CONAGUA, as administrator of the national waters, delivers bulk water within the MC
metropolitan area to SACMEX at two locations in the FD, and to CAEM at fifteen locations in the State
of Mexico.
From the physical points of delivery, SACMEX is in charge of the control and administration of
water under federal laws and FD water regulations. It is in charge of the primary lines of distribution
within the FD, and also of the management and administration of the hydraulic infrastructure to the point
of delivering water to the ultimate consumers Their administration ends at the start of the consumers’
pipes. The FD Water Law states that the maintenance, rehabilitation, construction, and operation and
enhancement of infrastructure for potable water provision are of public utility; therefore, it is implied that
land and property affected is subject to eminent domain.
Although the operation of secondary lines of delivery in the FD is under SACMEX
administration, the maintenance of secondary lines is a two-tier activity. The FD Water Law delegates the
responsibility of maintenance of secondary lines of distribution to boroughs (FD Law of Water Art. 18,
109
Fraction IV), which should be performed in coordination with the mayors and their offices of potable
water or urban services.
In the case of the State of Mexico, CAEM is in charge of the administration and distribution of
water under the regulation of the Law of Water of the State of Mexico. It gets bulk water from
CONAGUA and then, whether it makes the distribution within the metropolitan municipalities or delivers
the water to the municipal water agencies in charge of the construction, the municipalities are responsible
for maintenance and administration of the water systems within their jurisdictions. The water
administration within municipal boundaries varies from municipality to municipality.
In the case of water coming from the Lerma system, which today is the second most important
surface water provider to MC, the whole system is under SACMEX administration. The water capture is
located in the Lerma River area in the State of Mexico, and water is conducted to the FD through a
system of aqueducts. The majority of the Lerma system provides water to the FD, but also, as part of
contracts for water appropriation with the government of the State of Mexico from the 1960’s, SACMEX
delivers bulk water from this system to several metropolitan municipalities.
The third water system is the PAI, which is under mixed administration. Clusters of networks are
located in the State of Mexico and MC. The wells located in the state of Mexico, mainly in the Valley of
Lerma, are under CONAGUA administration; wells in the metropolitan area, in some cases are under
CONAGUA administration and in other cases CONAGUA has granted WPR to the governments of the
FD, the State of Mexico, the State of Hidalgo, and even to metropolitan municipalities. So the PAI
administration has several variations.
5.2 Water Storage in the Cutzamala System
Production of potable water from the Cutzamala affects up to five states, but traditionally just
three states are explicitly recognized as part of the systems: the State of Michoacán, the State of Mexico,
and the FD. When waste water systems are included, CONAGUA recognizes hydraulic infrastructure
110
located in the states of Hidalgo and Tlaxcala; in those states, the main dams are for industrial purposes
and the water is used for irrigation.
Table 4 shows the 43 most important dams in the system—11 dams are classified as for industrial
uses, and used for irrigation purposes working mainly with wastewater, those dams are not included in the
analysis and statistics in this chapter. Table six includes dams from the Cutzamala system that are
identified at the bottom of the table.
The total storage capacity in dams within the Valley of Mexico and the Cutzamala system is
1506.51 hm
3
(1 hm
3
= 1,000,000 m
3
); if the dams for industrial purposes—which are not under
CONAGUA administration, but under the administration of irrigation organizations—are omitted, the
storage capacity is 1013.18 hm
3
(see Table 4). In order to understand the apportionment of water in the
Cutzamala system it is necessary to identify the components of the system. The Cutzamala system starts
its water appropriation in the State of Michoacán. The main hydraulic infrastructure was built in the
1940’s and 1950’s. It captures water at two main initial points of provision: Tuxpan and El Bosque linked
dams, and Valle de Bravo dam. Then the system has two basic conduction lines that converge at the end
of the system close to the FD border. One conduction line starts at the Tuxpan dam and the other
conduction line starts at the Valle de Bravo dam.
The Tuxpan Dam gets its water from the tributaries of the River Tuxpan in the State of
Michoacán. It is located 207 km from the FD at 1754 meters above sea level. It has 20 hm
3
capacity. The
water runs southeast and joins the tributaries of the Zitácuaro River in the El Bosque dam with a capacity
of 202 hm
3
. Both dams were built for power generation purposes, but currently Tuxpan dam is working
for water derivation and El Bosque for water provision.
111
Table 4 Main Dams in Region XIII
State number State Legal Name Known as Mainstream
Administrato
r
Capabilility
(hm3)
Use Year started
1 FD Texcalatlaco Texcalatlaco Texcalatlaco SACM 0.12 C 1943
2 FD Anzaldo Anzaldo Río Magdalena SACM 0.13 C 1934
3 FD Tarango Tarango Arroyo Barranca del Muerto SACM 0.19 C 1901
4 FD Becerra C Becerra C Río Becerra SACM 0.23 C 1938
5 FD Tacubaya Capulín Río Tacubaya SACM 0.26 C 1938
6 Mex El Periodista El Periodista Arroyo El Tornillo Conagua 0.14 O 1958
7 Mex El Tornillo El Tornillo Río El Tornillo Conagua 0.058 C 1934
8 Mex El Sordo El Sordo El Sordo Conagua 0.6 C 1961
9 Mex San Joaquín San Joaquín Río San Joaquín SACM 0.68 C 1930
10 Mex Los Cuartos Los Cuartos Río Los Cuartos Conagua 1.15 C 1962
11 Mex Totolica Totolica Río Totolica Conagua 2.1 C 1962
12 Mex Las Julianas Las Julianas Río Chico de los Remedios Conagua 0.28 C 1995
13 Mex La Colorada Colorada Río San Mateo Conagua 0.12 C 1946
14 Mex Vaso del Cristo Vaso del Cristo Río Chico de los Remedios Conagua 4 C 1964
15 Mex Vaso Fresnos Vaso Fresnos Río de Los Remedios Conagua 0.75 C` 1958
16 Mex
Vaso de
Carretas
Vaso de
Carretas
Río de Los Remedios Conagua 0.95 C 1958
17 Mex Madín Madín Río Tlalnepantla Conagua 25 A 1977
18 Mex Iturbide Cañada Roa Río Cañada Roa Conagua 1.77 C 1954
19 Mex Angulo Angulo Arroyo Tejocote Conagua 2 C NA
20 Mex El Muerto
Espejo de los
Lirios
Río Cuautitlán Particular 0.57 C NA
21 Mex La Piedad Piedad Río Tepojaco Particular 0.22 C NA
22 Mex Papalotla Santa Bárbara Arroyo Piedras Negras NA NA C NA
23 Mex
Laguna de
Zumpango
Laguna de
Zumpango
Río Cuautitlán Conagua 100 C NA
24 Mex San Guillermo San Guillermo Río Tula NA 0.83 C NA
25 Mex Cuevecillas Encinillas Arroyo La Cantera Conagua 2.1 C NA
26 Mex Valle de Bravo Valle de Bravo Río Amanalco Conagua 457 A 1944
27 Mex Villa Victoria Villa Victoria Río San José Malacatepec Conagua 186 A 1944
28 Mex Chilesdo Río San José Malacatepec Conagua 0.8 D 1992
29 Mex Ixtapan del Oro Conagua 0.5 D
30 Mex Colorines Colorines Río Tuxpan Conagua 2.63 D 1944
31 Mich Tuxpan Tuxpan Río Tuxpan Conagua 20 D 1957
32 Mich El Bosque El Bosque Río Zitácuaro Conagua 202 A 1954
33 Mex Guadalupe Guadalupe Río Cuautitlán Conagua 66.2 I 1943
34 Mex La Concepción Concepción Río Tepotzotlán Conagua 11.42 I 1949
35 Hgo J. Rojo Gómez La Peña Río Alfajayucan DR 100 51 I 1979
36 Hgo Requena Requena Río Tepeji DR 003 71 I 1922
37 Hgo Taxhimay Taxhimay Río San Luis de las Peras DR 003 50.6 I 1912
38 Hgo El Manantial El Manantial Río Avenidas Conagua 2 I 1960
39 Hgo El Tezoyo Tezoyo Arroyo Tepozan Usuarios 11.2 I 1949
40 Hgo Endhó Endhó Río Tula DR 003 202.2I 1951
41 Hgo Vicente Aguirre
Las
Golondrinas
Río Alfajayucan DR 100 25 I 1952
42 Tlax Pozuelos Río Pozuelos Río Pozuelos 0.945 I 1964
43 Tlax Cañada Cañada Rió Axocapa 1.77 I 1962
Legend for Uses of Water: A-Public Urban Use, D-Derivation, C-Control, O other uses, I- Irrigation
NA-Non Available; DR-Irrigation District Source: CNA, 2006, 2014; IMTA, 2002
Main Dams in Region XIII: Valley of Mexico and Cutzamala System
Irrigation and Waste water Federal District State of Mexico Cutzamala System
112
The water from the Ixtapan del Oro dam (see location in Figure 5 ), merges with water coming
from the El Bosque dam and it is directed to the Colorines dam, which has a capacity of 2.63 hm
3
, built
for derivation of water purposes. The conduction lines to this dam work by gravity. The Chilesdo Dam is
located northeast from Colorines dam. It was built to prevent water runoff toward Colorines dam, saving
around 40 km and 500 m altitude to pump water back to that location. Water coming from Villa Victoria
dam (located northeast from Chilesdo) is pumped and joins water from Chilesdo dam at Santa Isabel
Tank. Then, the water is kept moving east toward a cluster of four tanks with individual capacity of
50,000 m
3
(Los Pericos Tanks). This water keeps moving east to merge water coming from Lerma River
beyond passing the City of Lerma de Villada. The water from this conduction line unites the water
coming from the second conduction line of the Cutzamala system coming from the south, as shown in
figure 5.
Figure 5 Cutzamala System
Source: SACMEX.
113
The second conduction line of the Cutzamala starts at the Valle de Bravo dam. The dam was built
for power generation purposes. It gets water from the Valle de Bravo River, and the water goes south
through a series of tunnels and pumping plants, then it is redirected northeast. The conduction line
provides water to several towns and cities. The line continues northeast, and after providing water to the
Valley of Toluca, including the City of Toluca, the line splits in two. One conduction line continues
northeast, and merges with the northern conduction line beyond the city of Lerma de Villada to continue
up to the Analco San José Tunnel (the delivery point of bulk water to SACMEX). The other conduction
line goes east and delivers water to the FD via Cuajimalpa—a borough in the southwest part of the FD.
Water from the Cutzamala system is delivered to SACMEX in two locations: Analco San José,
and Cruz de la Misión (see map for Cutzamala system and points of delivery). From there, SACMEX is
in control of the water distribution within the FD.
In the case of the State of México, CONAGUA delivers water from the Cutzamala system to
CAEM in the Valley of Mexico at fifteen points of delivery: Atizapan de Zaragoza, Huixquilucan,
Naucalpan, Nicolas Romero, Tlalnepantla, Cuautitlán Mexico, Cuautitlán Izcalli, Coacalco, Tultitlán,
Ecatepec, Tecámac, Chicoloapan, La Paz, Netzahualcoyotl, and Valle Chalco Solidaridad. It also delivers
water in four municipalities outside of the Valley of Mexico: Lerma, Ocoyoacac, Temoaya, and Toluca.
The conduction lines are linked to dams that provide water to MC. Combined water storage of
the seven main dams of the administrative region XIII Valley of México is shown in the next graph.
114
Figure 6 Storage capacity in Main Dams from 1990 to 2013
Source: CNA, Atlas 2014: G4_A
The graph shows a trend of increasing the amount of water kept in dams of the Region XIII:
Valley of Mexico System from 1990 to 2013, and in a way, it creates a sense of security for water
provision. The water storage, according to the graph, fluctuated between 418.8 hm
3
and 213.2 hm
3
, but
what the graph does not show is that the joint storage capacity of the seven-dam system is 868.93 hm
3
. In
other words, the storage kept in the Cutzamala system during 1990-2013 was only between 48.20 percent
and 24.55 percent of its total capacity. In addition, the highest variation between maximum and minimum
water storage occurred just in a decade (1993-2007). Thus, Cutzamala system faces two main problems:
the variation of water storage over time and the lack of water in specific dams.
As shown in Table 6, the capacity of the dams is so dissimilar that analysis of the seven dams
does not reflect the performance of the system because three dams are for water derivation,; their water
storage capacity is irrelevant. To overcome the limitations of aggregated statistics, analysis of the three
most relevant dams is presented for the period 2004-2014, which will help understand the current
availability of water based on the level of usable water storage in dams of the Cutzamala system.
0
50
100
150
200
250
300
350
400
450
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012
2013
Storage in December 31
(millones of m3)
Region XIII: Valley of México and Cutzamala System
Número presas = 7
115
5.3 Water Availability in the Cutzamala Dams
Covering the last eleven years (2004-2014), the variation of amount of water in the three main
dams is shown in the following tables. The numbers show the monthly percentage of water storage
compared to the maximum capacity of the dam, and the colors of the cells refer to level of storage in
reference to the minimum operational level. Red means that the capacity of the dams was less than the
recommended minimum amount of water, and green means the dams were operating with at least 88-90
percent of the total storage capacity of the dam. Variations of color between green and red indicate the
tendency to move toward safe or minimum storage capacity of the dam.
Two more conditions are important to consider when making sense of the tables and to help
achieve a more accurate interpretation. First, the percentages in the tables are referred to the maximum
level of water according to the dam design (know as a NAMO or maximum level of water under dam
operation; sometimes, under exceptional but dangerous conditions, the percentage may exceed 100).
Second, when CONAGUA reports the capacity of the dams, that capacity is nominal; this factor is
important since the entire amount of water in the dams cannot be used because some water must remain in
the dams at all times. From the operational level perspective, the amount of usable water can be obtained
as the actual amount of water stored at a specific time, less the recommended minimum amount of water
in the dam. The exception to the previous operational rule is that in case of need the system can use the
total amount of water in the derivation dams, even though is only 7.9 hm
3
. Thus, under the above criteria
the usable amount of water in the three most important dams of the Cutzamala system is only 51 percent
of the total amount of water designed to be stored in the dams—but with extreme contrasts in water
storage between those dams.
5.3.1 El Bosque Dam
El Bosque dam provides water for human consumption and irrigation purposes. The maximum
amount of water the dam can hold is 202.4 hm
3
and the minimum amount of water recommended is 74
hm
3
, which makes a usable volume of water of only 128 hm
3
or 63 percent of the dam’s capacity
116
(minimum storage capacities were taken from IMTA, 2002). Between 2004 and 2014, most of the time,
the storage of water in the dam did not reach the minimum amount of water required; in other words, 57
percent of the time the dam was operating with less than 74 hm
3
of water stored (in the table red
represents values below 63 percent and green represents values over 88 percent).
The graph shows that the old times when the drought season was constrained from May to August
are long gone. Although the critical months for water availability are still from May to August, in 2010,
2012, and 2013 the low availability extended to January. In 2008 and 2009 the level of water storage was
either under the minimum or close to it, and the dam performed under low availability of water practically
the whole year. Moreover, Table 4 tells us that water administrators must consider these new conditions
for a more adequate management of water storage and its use.
The last row of the table shows the monthly minimum percentage of water storage in the dam.
The most critical months are May and June, the months in which the dam has been working with less than
35 hm
3
of water stored. This situation creates more questions than it provides answers. For example, it
leads to two questions: How is the allocation of water defined under severe conditions of water
availability? And, how long in advance does CONAGUA inform water consumers of these severe
conditions, and what provisions are then taken to tackle the situation?
117
,
Table 5 Water storage in El Bosque Dam (2004-2014)
Source: Based on statistics provided by CNA by special request, 2015.
Note: The numbers define the monthly percentage of water storage compared to the maximum level of water under dam operation
according to the dam’s design. Colors represent variations refereed to the recommended operational minimum amount of water. Red represents
values below 63 percent and green represents values over 88 percent of the maximum capacity of the dam, the variations of color show the
tendency toward the minimum or maximum values.
Dam: EL BOSQUE, MICH Capacity 202.4 hm
3
Data based on batrhymetric measures the last day of the month
Year JAN FEB MAR ABR MAY JUN JUL AUG SEP OCT NOV DEC
2004 96.85 97.53 87.30 77.81 67.46 55.74 58.36 59.73 70.41 91.41 98.92 99.09
2005 93.51 85.67 76.83 71.53 60.57 50.68 46.13 51.28 65.73 80.88 86.12 80.18
2006 70.31 56.92 45.06 31.92 29.45 30.48 36.61 44.27 54.15 68.18 78.95 81.82
2007 75.40 62.99 54.79 47.63 43.58 39.08 40.07 47.53 60.18 73.81 82.21 76.09
2008 66.35 55.93 47.33 38.78 33.05 31.27 36.26 50.40 60.92 70.21 69.66 58.70
2009 56.77 52.42 39.38 30.63 28.26 29.05 32.91 42.54 52.08 64.82 62.45 50.79
2010 37.20 31.23 55.39 46.39 31.77 30.39 37.01 60.08 90.56 94.76 95.50 93.77
2011 86.07 72.48 59.73 49.21 46.54 42.29 44.12 63.49 84.88 91.85 91.30 77.72
2012 60.30 47.13 50.23 47.87 44.07 30.40 35.24 49.33 65.48 74.83 81.02 80.79
2013 62.96 47.60 35.24 31.95 30.09 28.77 35.46 47.53 61.58 80.14 98.69 92.93
2014 83.70 68.48 52.43 40.63 35.77 39.18 52.59 71.19 93.17 94.92 99.49 94.19
Min 37.20 31.23 35.24 30.63 28.26 28.77 32.91 42.54 52.08 64.82 62.45 50.79
118
5.3.2 Villa Victoria Dam
In the case of Villa Victoria, the dam was designed to work with 51 percent of its capacity as the
minimum amount of water, which makes only 95.5 hm
3
available to use in regular conditions out of its
185.72 hm
3
nominal capacity. Although within the decade analyzed, the dam strictly worked below the
minimum amount of water required just one quarter of the time, and five percent of the time it was under
safe conditions (with at least 92 percent of the total capacity in this case), in fact during the remaining 70
percent of the time the dam was operating close to minimum conditions as the table shows.
Even if the panorama of water storage in this dam does not seem to be as dramatic as in the case
of El Bosque, having the dam with half of its water storage capacity half of the time triggers several
question about accessing water under stress conditions. Even though this dam shares the main problem of
lack of water from the Cutzamala system, the critical problem is that this dam was so far below its
minimum capacity of water over several months every year.
Although the impact of low water storage over time is important, the impact of having the dam
with only one fifth of its capacity—less than half the recommended minimum—is, under any
circumstance, worrisome. The concern comes from the historic strategic use of water from this dam to
overcome failures on primary water lines coming from the two other main dams in the system. The
important question is: in the event of the failure of one of the main conduction lines from El Bosque and
Valle de Bravo dams, combined with the low water availability of Villa Victoria dam, where will the
stress for water be transferred to?
Table 5 shows that the June and July have been critical because the dam has sometimes worked
with only two fifths of the minimum amount of water it is supposed to hold. This situation shows
conditions for water allocation moving toward a situation of increasing stress, and at the same time
transferring the water stress to other sources of water, whether nearby basins or aquifers.
119
Table 6 Water Storage in Villa Victoria Dam (2004-2014)
Source: Based on statistics provided by CNA by special request, 2015
Note: in this case red represents values below 51 percent and green represents values over 92 percent of the maximum capacity of the
dam, variations of color show the tendency toward the minimum or maximum values.
Dam: VILLA VICTORIA, MEX capacity 185.72 hm
3
Data based on batrhymetric measures the last day of the month
Year JAN FEB MAR ABR MAY JUN JUL AUG SEP OCT NOV DEC
2004 94.58 92.51 88.33 83.29 80.04 79.74 83.00 85.37 90.11 100.96 99.05 93.63
2005 84.44 76.67 71.47 65.03 60.37 56.97 52.94 51.68 56.09 63.40 66.95 65.99
2006 65.31 64.51 63.16 61.01 53.47 47.65 43.13 39.95 52.07 66.55 72.15 69.41
2007 66.82 64.51 60.90 59.23 57.61 57.45 60.90 66.55 75.60 90.57 88.79 84.32
2008 80.34 72.31 67.20 61.49 55.84 49.81 48.89 56.11 61.65 64.07 60.52 52.93
2009 44.69 38.34 35.27 30.53 26.98 21.27 21.54 21.38 23.69 42.11 48.19 49.00
2010 49.59 51.80 77.37 75.60 68.87 68.87 59.50 52.44 55.46 65.58 75.33 75.01
2011 74.47 74.20 73.82 71.45 66.01 58.74 54.60 61.76 67.52 71.07 70.11 67.36
2012 62.89 58.36 54.83 50.70 44.24 41.63 40.05 46.28 52.56 58.11 60.37 61.26
2013 60.12 57.35 49.34 42.99 38.71 37.73 38.22 45.26 51.56 74.07 82.41 86.40
2014 83.89 73.52 69.96 65.99 60.88 59.74 65.30 74.48 87.29 95.54 97.14 96.66
Min 44.69 38.34 35.27 30.53 26.98 21.27 21.54 21.38 23.69 42.11 48.19 49.00
120
Although the dam, strictly speaking, worked under low water conditions only 51 percent of the
time, the rest of the time it was working near the minimum amount (as the color in red shows in Table 5).
As in the case of El Bosque dam, the periods of low water availability have been extended in this dam. In
2005, low storage occurred from April to August and into September. Since then, that low availability has
extended to the beginning of the year too, as the cases of the years from 2006 to 2013 show in the table.
Thus, in a way, the low availability for Villa Victoria dam is even worse than El Bosque dam
because there have been cases in which, from June to August, the dam has worked with only two fifths of
the minimum amount of water (or 39 hm
3
). Even though these critical conditions come from 2009 when
water availability was under the minimum amount the whole year, the low availability does not start and
stop in a calendar year.
If we move from the traditional way of looking at water storage as an annual cycle then the
drought of 2009 was not an annual condition. The dam water storage was getting close to its minimum in
April of 2008, it barely recovered 18 percent in the Fall, and in December the depletion of water was
reaching the minimum amount of water again. From June to August 2009 the dam worked with its lowest
level of water, which was just one fifth of the full capacity of the dam. The low availability of water
extended until February of 2010. Thus, the drought, or the combination of low water storage and
traditional uses of water, created a low water availability situation that lasted nearly two years.
5.3.3 Valle de Bravo Dam
The third most important dam in the Cutzamala system is the Valle de Bravo dam, which is the
one with the lowest level of water stress in the system. The minimum amount of water required in the
dam is 55 percent of the total capacity (217.06 hm
3
). In the last decade it operated under minimum level
only six percent of the time, and 24 percent of the time it operated with security (over 85 percent of the
total capacity). The remaining 71 percent of the time it operated in a range of capacity located toward
limits of security. The storage levels of the this dam are interesting mainly in a system where the other
dams work most of the time under their minimum levels of water —57 percent of the time in the El
121
Bosque dam (located in a basin with higher average rainfall than the basin where the Valle de Bravo dam
is located), and 51 percent in Villa Victoria. The situation is singular even though CONAGUA classifies
this dam as for the purpose of provision of fresh water, but unlike the other two it operated under its
minimum level of water only six percent of the time. This is explained by the conditions of water quality
and historical operational rules.
122
Table 7 Water Storage in Valle de Bravo Dam (2004-2014).
Source: based on statistics provided by CNA by special request, 2015
Dam: VALLE DE BRAVO, MEX Capacity 394.39 hm
3
Data based on batrhymetric measures the last day of the month
Year JAN FEB MAR ABR MAY JUN JUL AUG SEP OCT NOV DEC
2004 95.97 94.18 93.13 90.46 85.86 81.51 80.47 79.89 83.04 91.42 100.32 99.62
2005 99.08 98.34 94.99 91.07 86.79 81.16 76.54 74.41 73.89 76.13 77.09 75.33
2006 72.80 71.93 70.74 68.31 64.71 60.60 56.39 58.47 66.89 73.76 82.86 87.12
2007 86.67 86.87 87.05 81.70 74.14 68.49 67.80 69.70 75.05 83.93 84.03 82.76
2008 81.65 79.74 76.27 72.77 69.04 63.34 58.52 58.57 61.89 68.51 72.44 74.49
2009 71.63 69.40 69.02 66.33 60.17 55.86 52.31 49.67 51.29 63.52 69.83 72.85
2010 74.57 75.76 81.26 82.56 83.42 79.31 78.27 84.79 92.12 100.10 98.71 95.29
2011 91.69 90.57 88.49 84.16 78.50 73.25 70.49 71.38 73.10 79.59 83.14 84.64
2012 85.78 85.48 81.65 74.15 68.73 66.60 63.55 65.81 70.28 74.62 71.59 68.16
2013 68.41 69.12 69.81 66.82 60.13 53.68 50.92 55.35 61.09 72.93 79.99 87.46
2014 90.06 95.14 96.12 93.18 88.93 85.22 83.84 84.74 85.43 97.40 100.09 100.18
Min 68.41 69.12 69.02 66.33 60.13 53.68 50.92 49.67 51.29 63.52 69.83 68.16
123
5.4 The Operational Rules of the Cutzamala System
The dramatic situation of water storage in the Cutzamala system is not new. In 2002 the Mexican
Water Technology Institute analyzed the policies of operation of the Cutzamala system (for data see
IMTA, 2002), and the current performance of the dams seems to be the result of policies that have applied
since the beginning of the 2000’s.
The farthest point of the system is the Tuxpan dam, which depends on runoff and rainwater. This
water has always had priority for irrigation purposes, and after those needs are satisfied, water is diverted
to the El Bosque dam. The policy at the El Bosque dam has been to extract the maximum amount of water
possible, due to two main reasons: first, to maintain a maximum between 80% to 90% of the total
capacity in order to avoid losing 1.7 m
3
/s to 4.5 m
3
/s of water due to filtration; second, to have 60 hm
3
available at the end of May for mixing with water coming from Valle de Bravo dam. The rationale has
been to mix high-quality water from the El Bosque dam with lower-quality water from the Valle de Bravo
dam in order to provide the needed volume of water. The goal has been to keep the El Bosque, Ixtapan del
Oro, and Colorines dams producing at least 12 m
3
/s, or even 13 m
3
/s.
While operational technicians consider that the minimum amount of water needed for irrigation
and commercial fishing purposes is 54-56 m
3
/s, IMTA considers that the minimum amount of water that
should be kept in the El Bosque dam is 128 hm
3
which, as the respective table shows, has not been
achieved.
Thus, the explanation for the high volumes of water in the Valle de Bravo dam is that water
extractions are based on the quality of water. From March to October the water in this dam has a bad
smell and there is no extraction of water, but the extraction is 6 m
3
/s when water is combined 1:1 with
water coming from El Bosque dam. The combined volume of water from the four previously mentioned
dams varies from 8-12 m
3
/s and, on average, is 9 m
3
/s. Moreover, the Federal Power Comission (CFE)
demands once a week running at 11.5 m
3
/s for half an hour (20,700 m
3
) for power generation purposes
also affects the storage levels of the dam.
124
At the beginning of the 2000’s, the Chilesdo dam was out of operation due to silt accumulation.
That situation is connected to the operation of Villa Victoria dam. The policy of Villa Victoria dam was to
keep the highest amount of water possible, but at the end of May the capacity should be kept under 75
percent of the total capacity so it could capture the water runoff coming from the tributaries of the dam
between June and September and use that water in those months. The sequence for water uses was to
extract water from Villa Victoria first, and then from Chilesdo; the rationale was that in the case of having
spillage from Villa Victoria the water was captured again in the Chilesdo or Colorines dam. Traditionally
100-190 hm
3
has been the range for the amount of water kept in Villa Victoria. Water from Villa Victoria
has two main destinations. First, the water from the dam is directed to Los Berros pumping and potable
processing plant. The water is processed in a plant with maximum capacity of 9 m
3
/s and it is temporarily
stored in a tank with total capacity of 40,000 m
3
and useful capacity of only 25,200 m
3
. The tank works
with automatic control that starts when it reaches 35 percent of capacity and stops at 98 percent of
capacity, which means that the effective amount of potable water available from the tank is 15,876 m
3
.
The potable water is then pumped in the conduction lines toward MC.
The second volume of water produced has a different destination The silt holders from Villa
Victoria dam are cleaned daily from Monday to Friday. The process takes one hour using 72 m
3
, and the
water used is directed to Chilesdo dam (and is the reason of accumulation of high levels of silt that made
the dam useless). Since CONAGUA considers the Villa Victoria dam strategic for solving problems
related to electrical blackouts as well as failures of conduction lines, the policy has been store the
maximum amount of water possible at this dam. Unfortunately, as we see in table 6, the operation has
fallen far from the goal.
Although the Cutzamala system is recognized as capable of pumping 12 m
3
/s of water, the system
has produced up to 15.5 m
3
/s. To achieve that production, 6 m
3
/s comes from El Bosque dam, 6 m
3
/s from
Valle de Bravo dam, and 3 m
3
/s from Villa Victoria; in pumping station number 5, four pumps work 24
hours, plus another pump is used in case the desired volume of water is not reached. Small adjustments
are made in pumping station 6, which has maximum pumping capacity of 3.4 m
3
/s.
125
As part of the conduction lines, there is a cluster of tanks with storage capacity of 200,000 m
3
to
reduce the operation of pumping station number 5. The core criterion to operate Cutzamala is that the
whole system operates based on the level of water held in dams. The maximum amount of water is
pumped before winter from dams located at lower altitudes and relies on pumping power; moreover, at an
operational level it is known that the pumping power used is higher than the pumps’ nominal power.
These operational rules were in effect in 2002, according to ITA, and their implementation leads to the
common-sense questions of, why has the system been pushed to the extreme, jeopardizing other basins to
fulfill MC needs for water? And, how much water should the Cutzamala system produce to fulfill those
needs under the current water appropriation?
5.4.1 Bases for Water Apportionment
The immediate antecedent of appropriation of water from the Cutzamala system was a
presidential decree of 1972, which set the bases for the current WPR in MC. In 1972 the President
exercised the extraordinary powers the Constitution (Art. 89) and Federal Laws confer on him and created
a new water management agency in charge of the provision of water to the Valley of Mexico, which was
named Comisión de Aguas del Valle de México (Valley of Mexico Water Commission, VMWC) (DOF,
08.18.1972). The new organization took over the Comisión Hidrológica del Valle de México (Valley of
Mexico Hydrologic Commission), which had been in charge of the provision of water since July of 1951,
and set the apportionment of water between the FD and the State of Mexico that was in effect for the next
39 years.
The commission was empowered to study water sources and to build and to operate hydraulic
infrastructure; a comprehensive approach and principles of efficiency were offered as reasons for its
creation. With a traditional top-down institutional design the new institution was administratively and
organizationally under the umbrella of the Secretary of Water Resources, and financially and
programmatically under the President of the Republic. It was created with power to study water resources,
and to project and build infrastructure from the water sources up to the points of delivery to local
126
governments; from those points the local governments were in charge of the construction, operation, and
maintenance of the needed networks to provide water to the final user of water.
The apportionment of water between the FD and the State of Mexico defined by the decree is
shown in figure 7.
Figure 7 Water Apportionment based on the Presidential Decree of 1972
Source: Based on DOF.18.08.1972.
The implicit concern for the apportionment was the metropolitan area and the implementation of
the Decree started in 1973. The FD got over five times the amount of water as the State of México did.
The unstated rationale for that decision was that the FD had more population than the State of México. In
1970 the FD had a population of 6.74 million inhabitants, and the metropolitan municipalities in the State
of Mexico had 2.40 inhabitants.
Even though, in a period of seven years, the FD got a relative increment of 64 percent of water
provided, and the State of Mexico doubled its amount of water apportioned, in absolute values the
apportionment was designed in such a way that, from each 100 m
3
of water provided, the FD kept 85 m
3
in 1972, and 81 m
3
in 1980, while the State of México got 15 m
3
and 19 m
3
, respectively. Although the
demographics at a metropolitan scale were relocating at the end of the decade, the decree was never
adjusted to reflect those changes. In 1980, the FD had 8.83 million inhabitants and the metropolitan
municipalities in the State of Mexico had 5.61 million inhabitants; in the following decades the
127
demographic disparity grew larger (see table 7 in which the FD refers to the 16 boroughs and the State of
Mexico to the current 59 municipalities) but the water apportionment was not adjusted.
Table 8 Population in the FD and metropolitan municipalities 1970-2010
Source: 1970 and 1980 data from COESPO, 2009; 1990 -2010 data from Demographic Census
The formal policies of decentralization the Federal government—widely publicized since the
1930’s—saw the management of water as a comprehensive and united process that demanded cooperation
and coordination with municipalities (see in previous chapter the Law of 1934). On the other hand, the
practical approach to water management shows that, when making important decisions regarding water
control and water administration, the Presidential power over water control was not shared.
In the case of the decree of 1972, the decision of creating the new Commission (VMWC) was a
centralized decision validated only by the federal government. Five secretaries of federal agencies and the
mayor of the Federal District were the cosigners of the decree. Although the system included
infrastructure and transferences of water coming from the state of Michoacán, and water was moved
through and merged with water from the State of Mexico, none of the representatives or governors of
those states were included as cosigners. Thus, the creation of contemporary WPR for urban use in MC
was based on actors dependent on the president, which meant that, in practice, the centralized decisions
opposed the official policy of comprehensive decision making and cooperation among several orders of
government.
The decree only defines privileges because it defines benefits by granting the allocation of water.
The decree sees water as a whole, not as a group of valuable attributes; thus, no specific valuable
properties were defined. What the decree grants is the legal provision of water to two entities and
recognizes that those two entities should have physical access to water.
$,*# $,+# $,,# %### %#$#
)+* ++& +%' +)$ ++( $,+
%' ()$ *&& ,*, $$%* ++*
128
Although the decree also grants the VMWC the attribution to collect water fees in the FD, the
State of Mexico, and the State of Hidalgo, at the same time it lacks a system of incentives for the
accomplishment of delegated responsibilities, and also lacks penalties for punishing defectors. Hence, the
apportionment of water in the case of the decree of 1972 does not create any WPR because it does not
state duties and penalties for players who do not obey the decree. It just defines a privilege for water
users.
Thus, the decree of 1972 is an act of presidential power that defines a privilege. In this
presidential action, the government is the trustee of water, the FD and the State of Mexico the
beneficiaries. Since government was seen as a one united entity, however, in reality it was the union of
several levels of government. This demanded the inclusion of other state governments, which are de facto
real or future water claimants, but they were not included. By doing this, the legal process of water
appropriation was dissociated from actual appropriations of water.
Although the decree sets the apportionment of water for the FD and the State of Mexico and
defines the amount of water both entities should have within the next eight years, the decree does not
define what superficial or groundwater sources of water must provide the amount of water apportioned.
The decree does not set any institutional constraints on any actor, whether federal or local, and therefore
water may have come from anywhere—in which case the water claimants would be extended to different
basins or regions. The decree as a presidential act of executive and jurisdictional power violates the
essential demand for an adequate definition of actors with rights to access a common good, while failing
to define privileges and responsibilities necessary for adequate water management.
The identification of sources of water to complete the decree of 1972 was partially accomplished
when the apportionment of water coming from four main dams in the Cutzamala system was defined a
decade later. In June of 1982 a new presidential agreement granted the FD and the State of México the
apportionment of 19 m
3
/s of water coming from the Cutzamala. In fact the agreement was an executive
order that directed the action of the Hydraulic and Agricultural department, regarding water
apportionment from the Cutzamala system. The agreement was mandated and implemented rather than
129
being the result of collective decision on regional water management, so I call this “agreement” the
decree of 1982. The deplorable condition of water storage of the dams in the Cutzamala system is linked
to the legal apportionment of water set by the decree of 1982.
The President again, as in the previous decree, had the dominant role in water decisions, and the
cosigners this time were the Secretary of Farming and Hydraulic Resources (SARH) and the FD mayor.
Only three actors decided the use of a common good resource that affected several municipalities in at
least five states and more than 15 million people.
Figure 8 Apportionment of Water granted by the Decree of 1982
Source: based on D.O.F. 22.06.82
The Decree granted to the State of Mexico 10.858 m
3
/s and to the FD 8.142 m
3
/s. It is interesting
that the allocation of water volumes was so specific regarding the amount of water per second, but it
oversaw two more substantial and vital factors.
First, the water allocation did not consider the real capacity of the system. Figure 10 shows the
legal WPR granted to the FD and the State of Mexico but as Table 7 shows, Chilesdo and Colorines are
dams for diverting water. According to the decree, Chilesdo should provide up to 31.54 hm
3
annually,
when the real capacity of the dam is just 0.8 hm
3
, which means the dam must be filled 39 times during the
year. As explained earlier in this chapter, the logic may be to capture water from spillovers at the Villa
130
Victoria dam, but this was unlikely to happen after the decree granted a legal extraction of 126.14 hm
3
from this dam, leaving an annual remaining volume of less than a third of its capacity.
In the case of Colorines Dam the decree not only fails to consider the real capacity of the dam but
also jeopardizes the use of water from other dams. The decree assigned Colorines dam to legally allocate
more than nine thousand times its storage capacity. Since the dam derives water coming from the El
Bosque dam, the extraction from Colorines dam must be just a transfer. But if that were the case, then the
former dam would not have the capacity to fulfill its legal water allocation either. If the legal allocation is
enforced, El Bosque dam will not only end up with no water at all, but it will have an annual deficit of 47
hm
3
.
The existence of two more dams that are tributaries to Chilesdo dam and can help to fulfill the
legal allocation can be argued: Tuxpan and Ixtapan del Oro. Even if that were accepted, their storage
capacities are 20 hm
3
and 0.5 hm
3
, respectively, which cannot fulfill the legal allocation even if the whole
volume of water is used to honor the decree. In addition, the Tuxpan dam has a usable volume of water of
only 5 hm
3
(see IMTA, 2002), and this difference is important because if all the water is used to comply
with the decree, then there will be no water left for other water claimants or other consumptive uses of
water.
The decree of 1982, as with the decree of 1972, defined a privilege of legal appropriation of
quantities. At the same time, it set the legal bases to jeopardize the regional resources of surface water as
table 7 shows.
131
Table 9 Legal Appropriation of Water from the Cutzamala System
Source: Based on statistics provided by CONAGUA by special request, 2015; D.O.F. 22.06.82.
Since 1980, the FD roughly stabilized its population, while the sprawling growth has been
directed toward municipalities located in the State of Mexico. Intra-urban migration has become the main
factor of population dynamics; on one hand, the MC reduced its population in relative terms, while on the
other, relations with the cities surrounding MC were strengthened, effectively increasing MC population.
In decreasing order of importance, the population increased in Puebla-Tlaxcala, Toluca, Querétaro, and
Hidalgo (POZMVM 1998; Rodolfo Tuirán, cited by Villareal 2003). The population distribution in MC
exemplifies the national model of settlements: large populations in small areas and large areas with small
populations. The process has produced a union of population clusters rather than an integrated group of
clusters that complement each other socioeconomically and territorially. However, water apportionment
hardly adjusted to include these demographic changes.
In addition to the important regional demographic change, the FD got a new type of government:
the Department of the FD became the Government of the FD and started a policy based on local decisions
rather than being totally dependent on the President. The FD won autonomy in 1984 and continued
Beneficiary Villa Victoria Chilesdo Valle de Bravo Colorines
El bosque
(implied)
Federal District 63.07 13.53 77.93 102.24 102.24
State of Mexico 63.07 18.01 114.44 146.89 146.89
Storage Capacity 186 0.8 457 2.63 202
Legal extraction 126.14 31.54 192.37 249.13 249.13
V olume Remnant
of Water
59.86 -30.74 264.63 -246.50 -47.13
Percentage of legal
extraction/Storage
capacity
32.18 -3842 57.91 -9372.79 -23.33
Dams of Cutzamala System: Legal Annual Extractions in hm3
Allocation of Legal Extractions
132
dealing with the demographic growth in MC that had been used to justify new sources of water and the
creation of new infrastructure to satisfy the never-ending thirst of the city. The combination of growing
population with the traditional model of use of water led to a continuing increase in the demand for
potable water. At the same time the amount of water the city needed increased but the incipient WPR
from the Cutzamala System barely changed to accommodate the changes at the same pace as the city did.
In 1989, CONAGUA was created and entrusted with the responsibilities of the VMWC, and
enforced through its regional representation: Organismo de Cuenca Aguas del Valle de México (Waters
of the Valley of Mexico Basin Organization). That same year the maximum amount of water granted by
the 1972 decree reached the permitted limit of 52 m
3
/s. Then the FD entered into a new water agreement
with CONAGUA, which granted legal WPR over surface and groundwater for the FD. The agreement
was materialized into a water title deed that granted not only the use of certain amount of water but the
direct control of sources of water. The process is important because, until 1972, CONAGUA had the
control of practically all the infrastructure used to provide water to MC.
As table 10 shows, out of the 32 most important dams in the Valley of Mexico and the Cutzamala
system that can be used to produce fresh water, 22 dams were under control of CONAGUA, the FD has
control of five dams in the FD and one in the State of Mexico, and even though 25 dams are in the State
of México and two in the state of Michoacán, those states have no control over any of the dams within
their jurisdictions. Thus, they are totally dependent on CONAGUA’s decisions for water apportionment
and distribution.
133
Table 10 Dams by Type of Administrator
Source: Based on table 4 Main Dams in Region XIII
Note: ND: No Data. It means that CONAGUA does not identify the water appropriator
Dams volume Dams volume Dams volume Dams Volume Dams Volume
FD C 5 0.93 5 0.93
A 1 202 1 202
D 1 20 1 20
A 3 668 3 668
C 13 115.88 2 0.83 2 0.79 1 0.68 18 118.18
D 3 3.93 3 3.93
O 1 0.14 1 0.14
Total 22 1009.95 2 0.83 2 0.79 6 1.61 1013.18
Uses of water defined by CONAGUA: A-Public Urban Use, D-Derivation, C-Control, O other uses. Capacity of dams in hm
3
Uses of
Water
Location
Michoacán
State of Mexico
Grand total
Administrator
Conagua N.D. Private SACMEX
134
Although there were other actors besides CONAGUA partially controlling the hydraulic
infrastructure, the most relevant actor was still CONAGUA. It had the control of practically the whole
storage capacity that provides water to MC. Thus, even though the FD district controlled six dams, the
amount of water controlled in those dams was only 1.62 hm
3
, which is insignificant compared to the
storage capacity of the system. Moreover, it is interesting to noticing that the amount of water controlled
by the FD was the same volume of water private and non identified administrators controlled, the
difference being that the FD was providing water for more than 8 million people.
By controlling the dams, CONAGUA has retained control of volumes of water over which, as
table 8 shows, the State of Mexico and the State of Michoacán had no control. This happened regardless
of the fact that the production and storage infrastructure of the whole Cutzamala system in both states and
the volume of water capture in dams represents practically 86 percent of the storage capacity of the
Valley of Mexico and Cutzamala system.
5.4.2 A Change in Water Control
The level of control of volumes of water that provide water to MC changed in 1996 when the
control of water moved from a basin level approach to a more reduced regional level approach. In 1996,
CONAGUA granted the FD 1,089 hm
3
annual consumption of water for urban public uses, divided into
usufructuary use of 309.05 hm
3
from surface water sources and 780.52 hm
3
from groundwater sources.
The rate of extraction was fixed at 9.8 m
3
/s for surface water locations, and 24.75 m
3
/s from groundwater
coming from 1,014 wells (Water permit number 5DFE100309/26HMSG96).
The WPR granted to the FD is a title deed that allows the use of 18 sources of surface water; it
includes the control of two sources of water in the Cutzamala system and 16 springs in the FD. It also
includes the control of wells located in the MC metropolitan area aquifer and Toluca Valley aquifer. The
permit has such significance that, with only this permit, the FD gained control over more water than is
stored when the dams in the Valley of Mexico and Cutzamala System are filled to their full capacity. So
135
the title deed granted legal control of sources of water and volumes of water, and direct control of
infrastructure.
Moreover, between 2006 and 2015, the FD got control of 1,964 m
2
of federal zone territory
through several title deeds. They were granted the legal possession of federal land near sources of water
by which CONAGUA allows the construction of hydraulic infrastructure, while also providing legal
certainty over other water claimants. Thus, while CONAGUA maintains the control of water at a national
and basin level, the FD obtained control of surface and groundwater sources of water within MC and the
Valley of Toluca.
In 2011, the cyclical crisis of water forced an update to the decrees of 1972 and 1982. The new
accord advanced the effort to create more flexible WPR. The 1972 WPR covered a fixed monthly amount
of water, but in 2011 the FD introduced a variation in its WPR. An agreement with CONAGUA allowed
the FD government to redistribute its WPR regarding the amount of water throughout the year. The water
granted by the previous agreements was mainly delivered to the FD through four main points: two points
for surface water coming from the Cutzamala system: Analco San José, and Cruz de la Misión Station;
and two points for groundwater from the PAI network of wells: Chalmita and Caldera.
Figure 9 Volumes of Water Provided by PAI and Cutzamala Systems to the FD in 2011
Source: SACMEX, 2011
) ) ) ) ) (#. (#. (#- (#- (#- (#- (#-
. .#*
.#. .#. .#.
. -#+ -#+ -#+ -#* -#*
-#,
& ( * , - '& '( ! !
!
!
"!
136
Although the reallocation of amount of water seemed to lead to losing an average of nearly 41
million m
3
annually, the smart move allowed the FD to increase its water provision from March to May,
the driest part of the year, by 0.9 m
3
/s, while reducing the provision of water in October and November,
the rainy season, by 0.8 m
3
/s.
Moreover, the agreement includes an important note. The amount of water provided through the
station Chalmita from the network of wells, has an average volume flow rate of 2.2 m
3
/s, but it can be
increased to 2.4 m
3
/s to compensate for a reduction in the amount of water delivered from another
pumping plant. In these conditions, the FD not only preserved the amount of water originally granted, but
even opened the possibility of increasing it by 0.1 m
3
/s through this agreement.
Under these accords the FD has acquired important WPR, under which water appropriation and
apportionment are performed now. The agreement was signed by CONAGUA (the general director of the
Valley of Mexico, the director of potable water and sewer, and the director of water administration) and
the FD government (the environment protection agency and the director of the FD water agency).
In the case of the State of Mexico, CONAGUA did not update the apportionment of water, at the
same time the accord was updated with the FD. The limitation was the State of Mexico’s negative balance
of payments for bulk water at that time. The accord was performed at a later time and independently from
the agreement with the FD—even though the FD provides water to the State of Mexico government from
Lerma and PAI system. The apportionment with the State of Mexico is now settled yearly.
The legal apportionment of water from water coming from the Cutzamala system and the creation
of WPR is summarized in table 9: Creation of WPR in the Cutzamala System.
137
5.5 Synthesis of Legal Water Apportionment
Actors Jural
authority
Actor’s
function
Entitlement (Rights
transferred, Amount& type)
Period granted Actors in
regulation
Duty of noninterference Security of property
rights
Monitoring &
implementing system
Decree of 1972
President
Constitution
& Federal
laws
Dominant
Transference of usufructuary
uses of water to the FD and
the State of Mexico. Annual
volumes of water may be
under “justified” adjustment,
but conditions to do so were
not defined.
8 years
1
No power to exclude was
granted. But the VMWC
would establish agreements
for water provision.
Water fees should include
amortization costs, operation,
maintenance, and
improvements of the water
provision system, and they
should be defined in
agreement with State and
municipal governments.
Legal uncertainty: low.
The president had
control of the entire
system. Although, no
protection for variability
of volumes of water was
provided.
Physical uncertainty:
high. de facto control of
infrastructure meant the
control of water
Tenure uncertainty: high,
Discretionary
apportionment of water
could be granted
No system of
incentives or
penalties was defined
No monitoring or
implementation
system was included.
5 Federal
Secretaries
Federal laws Join 5
FD Mayor FD’s Law Join 1
Valley of
Mexico Water
Commission
Decree
None
(Future
facilitator)
1
Decree June 1982
President
Constitution
& Federal
laws
Dominant
Grants the benefit of direct
consumption of 19 m
3
/s of
water from Cutzamala
system. It defines the
apportionment of water for
the State of Mexico and the
FD.
No defined.
Volumes of
water are for
use in the
metro area,
they can be
modified due
to climate or
demographic
changes
1
No power to exclude was
granted, Legal WPR granted
exceed the physical capacity
of the system for managing
volumes of water.
The control of dams define
the distribution of water
among water claimants from
water in the four dams the
Decree defined
Legal uncertainty: low.
Federal agency
Physical uncertainty:
high. Legal volumes
exceed physical capacity
Tenure uncertainty: high.
No present or future
water claimants were
included
Neither systems of
incentives and
penalties, nor
monitoring and
implementation were
included.
Dams are under
federal control.
SARH Join 1
FD Join 1
138
Actors/ Jural
authority
Actor’s
function
Entitlement (Rights
transferred, Amount& type)
Period granted Actors in
regulation
Duty of noninterference Security of property
rights
Monitoring &
implementing system
WPR CONAGUA-SACMEX 1996
CONAGUA LAN, Join
Usufructuary use of
1,089,568,800 m
3
annually.
Delegation of control of 1,014
wells, 2 tributaries of
Cutzamala system, and 16
springs.
NA
1
The FD was granted both the
privilege of usufructuary use
of water, and the direct
control of sources of water.
Legal uncertainty: low,
volumes were granted by
a deed.
Physical uncertainty:
high. Historical
economic appropriation
of water from FD
hydraulic infrastructure,
CNA can take over for
preservation or creation
of water reserves
Tenure uncertainty:
medium. The LAN grants
tenure, but there is a
permanent conflict
among water users (
municipalities-
Government of the State
of Mexico- FD)
There are no specific
systems, but
monitoring and
implementation are
under the LAN.
The LAN demands
the water user deliver
specific information
and the CNA verifies
the location of
extractions, uses of
water
Changes of uses of
water are up to the
water user, and
inefficient
verification from
CNA
SACMEX (FD) Join 1
Agreement CONAGUA-FD Government 2011
OCAVM
Decree of
1972,
Federal laws,
and FD laws.
Join
Annual volumes of water
granted in 1972 were updated
with monthly provision in
m
3
/s and total allocation of
water per month in m
3
.
The provision to the FD is
granted with water from PAI
and Cutzamala systems.
Permanent
agreement
with annual
variations
stated in ad
hoc accords
3
Although volumes of water
can change based on
hydrological or demographic
conditions, it is not clearly
stated what geographic areas
must be considered in the
evaluation.
Legal uncertainty:
medium. The WPR can
vary annually, and there
is no limit for variation
(1/5 according the LAN)
Physical uncertainty:
high. Apportionment is
based on annual
conciliations.
Tenure uncertainty:
Medium. Actions of other
actors are a permanent
treat
The accord states: a)
the FD should have
water meters, and
CNA-DF monthly
verification should be
performed, although
not system of
incentives to was
defined
b) any disagreement
is restricted to have a
CNA-FD
administrative
solution
FD’ SEDEMA Join 1
SACMEX SACMEX 1
Table 11 Creation of WPR in the Cutzamala System
Sources: Agreement CNA-GDF, 07.25.2011; CNA-REPDA, Water Permit: 5DFE100309/26HMSG96; DOF, 08.18.1972; DOF,
06.22.1982; LAN, 2014.
139
5.6 The Economic and Legal Appropriation in the Cutzamala System
Table 12 shows the use of water from the Cutzamala system in the period of time analyzed. The
volumes of water extracted, identified as legal WPR in Dams, include the extraction of water from the
three most important dams in the system: Valle de Bravo, Villa Victoria, and El Bosque.
Three characteristics are important as associated to the management of the Cutzamala system: (a)
operational rules do not follow legal appropriation of water and economic appropriation exceeds legal
appropriation of water, (b) the extraction of water from the dams to provide potable water to MC does not
always follow that purpose, and (c) the variation of apportionment between the FD and the State of
Mexico has created enduring unequal distribution of water in MC.
(a) The management of the dams has three characteristics. The first characteristic is that de facto
water use it is not constrained by legal WPR. Thus operational rules do not complement, or support, legal
rules.
The monthly aggregated legal WPR, shown in the second row of Table 10, were calculated based
on the 1972 Decree that specified the FD’s and State of Mexico’s legal WPR per dam in the Cutzamala
system, and the Decree of 1982, which defined the volumes of water from each dam. The legal WPR
show the aggregated values from the three dams, and for both the FD and the State of Mexico.
The comparison of legal WPR with the amount of water CONAGUA extracts from the three
dams shows that the appropriation of water is based on operational criteria rather than on legal decisions.
For example, from April to July, and December of 2004, CONAGUA extracted more water than it was
legally allowed to. In fact, in June of 2004, CONAGUA extracted 29 percent more water than it was
legally allowed to get from the three dams. In 2005, from January to June, the de facto appropriation was
also beyond the legal WPR.
140
Table 12 Legal and Economic WPR in the Cutzamala System 2004-2014
Water_users JAN FEB MAR APR MAY JUN JUL AUG SEP OCT NOV DEC Total
Legal WPR in Dams
567.25
CNA water from dams 2004 30.35 35.57 43.93 48.03 54.58 61.00 48.11 46.12 33.70 43.74 42.70 52.78 540.61
MC (FD + Edo Metro) 37.61 40.16 36.30 40.25 42.76 41.10 41.25 38.78 40.12 35.62 34.89 34.88 463.72
" "! FD 24.77 26.94 24.87 27.31 29.00 27.70 27.70 25.96 27.09 23.94 22.92 22.47 310.67
Edo sub 14.93 15.41 13.35 14.90 15.93 15.56 15.76 14.89 15.07 13.67 13.93 14.33 177.73
Edo metro 12.84 13.22 11.43 12.94 13.76 13.40 13.55 12.82 13.03 11.68 11.97 12.41 153.05
Edo State 2.09 2.19 1.91 1.96 2.17 2.16 2.21 2.06 2.04 1.99 1.95 1.92 24.65
CNA water from dams 2005 52.86 45.99 50.94 51.19 49.87 48.55 37.96 35.87 33.77 34.83 36.50 39.44 517.77
MC 38.46 40.64 37.08 40.92 42.76 37.24 41.25 42.11 37.34 37.80 39.69 35.63 470.92
FD 25.01 26.20 24.43 27.30 28.21 24.38 27.58 28.01 24.95 24.70 26.15 23.49 310.41
Edo sub 15.46 16.42 14.45 15.40 16.72 14.88 15.59 15.96 13.97 14.84 15.34 13.78 182.81
Edo metro 13.45 14.44 12.65 13.62 14.55 12.86 13.67 14.10 12.39 13.10 13.54 12.14 160.51
Edo State 2.01 1.97 1.80 1.78 2.16 2.01 1.92 1.86 1.58 1.74 1.80 1.64 22.27
CNA water from dams 2006 42.70 37.29 46.14 37.99 39.18 36.66 37.48 36.26 26.59 37.80 37.54 37.80 453.43
MC 37.30 39.42 35.59 40.92 35.61 38.09 38.91 40.37 38.06 36.84 40.17 38.52 459.80
FD 24.15 26.27 23.90 26.57 23.20 25.48 25.80 26.81 25.18 24.35 26.42 25.40 303.53
Edo sub 15.14 15.14 13.26 16.27 14.10 14.34 14.86 15.49 14.72 14.33 15.73 15.06 178.44
Edo metro 13.15 13.15 11.69 14.35 12.41 12.61 13.11 13.56 12.88 12.49 13.75 13.12 156.27
Edo State 1.99 1.99 1.57 1.91 1.70 1.73 1.75 1.94 1.85 1.84 1.97 1.94 22.18
CNA water from dams 2007 37.78 34.43 41.09 41.91 45.05 36.11 33.00 19.61 18.06 30.42 43.55 44.83 425.84
MC 38.68 35.86 35.63 37.90 42.80 36.63 39.07 41.37 37.31 40.48 34.46 36.27 456.46
FD 25.82 23.81 23.59 24.94 28.87 25.16 27.05 27.68 24.24 26.47 22.23 24.03 303.89
Edo sub 14.88 13.82 13.77 14.71 16.02 13.12 13.92 15.71 14.85 15.97 13.96 13.84 174.57
Edo metro 12.86 12.05 12.04 12.96 13.93 11.47 12.02 13.69 13.07 14.01 12.23 12.24 152.57
Edo State 2.01 1.77 1.73 1.76 2.09 1.65 1.90 2.02 1.78 1.97 1.73 1.60 22.01
CNA water from dams 2008 42.06 40.92 45.20 43.73 39.60 32.65 25.10 29.15 26.42 37.15 43.30 40.50 445.78
MC 46.86 38.81 36.56 37.58 41.85 39.77 35.62 39.59 36.92 38.56 33.31 32.37 457.80
FD 30.87 25.51 24.51 25.27 28.29 27.01 24.35 26.76 24.83 25.92 21.68 21.25 306.25
Edo sub 18.43 15.21 13.80 14.24 15.61 14.63 13.03 14.68 13.90 14.59 13.30 12.77 174.19
Edo metro 15.99 13.30 12.05 12.31 13.56 12.76 11.27 12.83 12.09 12.64 11.63 11.12 151.55
Edo State 2.43 1.91 1.75 1.93 2.05 1.87 1.75 1.85 1.81 1.95 1.68 1.66 22.64
CNA water from dams 2009 42.52 40.61 41.84 37.88 36.49 31.54 29.21 19.62 34.90 32.72 31.73 33.21 412.27
MC 41.76 31.82 33.41 34.69 40.34 33.21 33.72 31.46 24.74 26.79 24.62 24.10 380.66
FD 27.67 21.05 21.63 22.20 26.01 20.56 21.96 19.71 15.26 17.37 15.65 15.52 244.59
Edo sub 16.23 12.47 13.56 14.31 16.42 14.30 13.55 13.44 10.75 10.64 10.11 9.82 155.60
Edo metro 14.09 10.77 11.78 12.49 14.33 12.65 11.76 11.75 9.48 9.42 8.97 8.58 136.07
Edo State 2.14 1.69 1.77 1.82 2.10 1.65 1.79 1.69 1.27 1.22 1.14 1.24 19.52
CNA water from dams 2010 27.42 14.89 35.20 40.37 37.29 33.08 19.80 19.44 32.07 28.91 32.83 37.19 358.49
MC 25.26 27.76 29.05 35.31 33.90 34.35 38.69 37.12 39.89 33.87 34.70 37.84 407.74
FD 16.29 17.79 18.64 23.19 21.81 22.97 24.83 24.53 26.60 22.54 22.86 24.79 266.84
Edo sub 10.30 11.28 11.92 13.88 13.83 13.28 15.83 14.51 15.21 12.95 13.41 14.89 161.29
Edo metro 8.97 9.97 10.41 12.12 12.09 11.38 13.86 12.59 13.29 11.33 11.84 13.05 140.90
Edo State 1.33 1.31 1.51 1.76 1.74 1.90 1.97 1.92 1.91 1.62 1.57 1.84 20.38
CNA water from dams 2011 39.01 36.84 42.14 37.19 42.82 33.84 22.87 22.89 26.01 29.94 36.25 40.64 410.44
MC 39.46 34.44 36.28 39.37 40.48 40.09 38.03 36.95 35.43 35.24 32.05 46.88 454.70
FD 26.19 22.34 23.91 26.13 26.57 26.13 24.85 23.39 22.77 22.47 20.33 31.38 296.46
Edo sub 15.21 13.54 14.09 14.94 15.90 16.29 15.52 15.46 14.43 14.59 13.36 17.26 180.59
Edo metro 13.27 12.10 12.37 13.24 13.91 13.96 13.18 13.56 12.66 12.77 11.72 15.50 158.24
Edo State 1.95 1.44 1.72 1.70 2.00 2.33 2.34 1.90 1.77 1.82 1.63 1.76 22.36
CNA water from dams 2012 39.26 30.99 40.84 42.64 46.09 34.30 27.89 24.43 24.81 28.39 36.13 42.11 417.88
MC 38.06 36.52 37.74 37.86 47.25 38.36 36.47 35.09 33.18 35.47 34.15 35.25 445.40
FD 22.94 22.45 24.87 23.71 25.74 24.49 23.02 22.45 20.56 21.13 19.88 21.31 272.55
Edo sub 17.01 15.94 14.55 15.78 24.14 15.62 15.21 14.08 14.15 16.01 15.82 15.83 194.14
Edo metro 15.12 14.07 12.87 14.15 21.51 13.87 13.45 12.64 12.62 14.34 14.27 13.94 172.85
Edo State 1.89 1.86 1.68 1.63 2.63 1.74 1.76 1.45 1.53 1.67 1.55 1.88 21.27
CNA water from dams 2013 40.21 37.01 36.25 36.61 34.91 26.81 24.69 31.27 38.44 25.12 35.82 40.93 408.07
MC 34.25 31.20 24.24 35.85 35.88 34.63 31.83 31.81 31.79 34.57 30.52 34.21 390.78
FD 20.62 19.73 12.12 24.01 23.36 22.13 20.44 20.42 20.09 21.72 19.89 21.09 245.62
Edo sub 15.23 12.84 13.54 13.37 14.17 14.18 12.92 12.92 13.26 14.40 11.92 14.72 163.47
Edo metro 13.63 11.47 12.12 11.84 12.52 12.50 11.39 11.39 11.70 12.85 10.63 13.12 145.16
Edo State 1.59 1.37 1.42 1.53 1.65 1.68 1.53 1.53 1.56 1.55 1.29 1.60 18.30
CNA water from dams 2014 55.56 39.13 45.68 39.37 37.66 25.71 22.45 24.16 39.69 45.49 37.52 37.35 449.77
MC 36.07 34.58 40.16 39.93 39.63 38.21 37.79 37.01 36.77 41.19 36.31 38.74 456.39
FD 23.16 22.46 26.51 25.79 25.93 24.50 23.60 23.62 23.77 27.71 23.26 24.55 294.86
Edo sub 14.55 13.59 15.34 15.82 15.34 15.44 15.97 15.30 14.71 15.33 14.89 16.01 182.29
Edo metro 12.91 12.12 13.65 14.14 13.70 13.71 14.19 13.39 13.00 13.48 13.05 14.19 161.53
Edo State 1.64 1.47 1.69 1.68 1.63 1.74 1.78 1.91 1.71 1.85 1.84 1.82 20.76
" !#
141
Even though extracting more water in a month than the legal amount allowed was not the
exception, CONAGUA focused on not exceeding the annual limits of extraction, and ignored the monthly
limits. As the totals in the last column show, that goal was achieved. A recurrent policy is that, if
CONAGUA delivers less water in one month than its legal requirement, it makes up for this by providing
the extra during the next month. But this policy has created some negative effects on the management of
water in the dams, leading to unpredictable performance. There is no regular pattern of dams
administration.
Water extraction exceeding the legal limits often occurred in El Bosque dam at the beginnings
and ends of years, and in Valle de Bravo dam from February to July, but there is not a consistent pattern
in the extraction of water from the dams. The over-extractions can occur any time of the year. For
example, the extractions also overpassed legal allocation from January to June of 2005, and January 2014,
which correspond to drought season. While granting water to some actors, over-extraction imposes water
restriction on others, and the unpredictability of this variation causes its own difficulties.
Thus, the extractions of water for provision of water to MC do not show a specific pattern, but are
mostly related to operational factors and CONAGUA’s discretionary power. Even though over-extraction
from the entire Cutzamala system is not frequent, the picture changes when the analysis is applied to each
dam separately.
Tables 13-16 shows the balance between legal WPR and Economic appropriation of water in the
three major dams. The table confirms that the criteria for administrating and controlling the flux of the
Cutzamala system, based on empirical use of water from dams used since the late 1990’s, has not
changed. The table shows that CONAGUA exceeds the legal WPR in the El Bosque and Valle de Bravo
Dams more often that it does it in Villa Victoria dam.
The first important change from the previous decade to the period analyzed is that the water
mixing from El Bosque and Valle de Bravo Dams did not remain 1:1, but has changed in erratic way.
Some extractions from Valle de Bravo dam even did not include any extraction from El Bosque dam. This
situation is important not only because the extraction from Valle de Bravo Dam has been exceeding the
142
legal WPR granted in 1982 more often than it has been performed in the other two dams, but also because
water mixing was performed in order to provide the amount of water granted to the FD and the State of
Mexico, while reducing the poor characteristics of the water coming from Valle de Bravo dam (see tables
14 and 15).
Since CONAGUA, in some months (such as August 2005 and 2010), has been extracting water
only from Valle de Bravo, with no extraction from El Bosque, the extraction of water may be related to
whether CONAGUA has finally improved the quality of water obtained in the Valle de Bravo Dam, or it
may be because the quality of water provided to MC has been reduced.
In a context with little open information, the situation became clear in July 2012. In a press
conference for informing and verifying water quality-control actions in the Cutzamala, CONAGUA
officials declared to the media in an on-field visit to the Valle de Bravo dam, that the main problem of the
dam was the presence of cyanobacteria (blue-green algae) and the production of geosmin that generates a
strong earthy flavor and adds a strong muddy smell to the water. Thus, since 2012, water from Valle de
Bravo has been filtered through activated charcoal to control the levels of geosmin and the algae has been
physically removed. But the efforts have not been standardized, nor have they been sufficiently effective.
In 2012, when the direct elimination of algae started, the CONAGUA officials asserted that the efforts did
not get rid off even 10 percent of the cyanobacteria in the dam. Thus, even though the process of making
potable water in the Los Berros plant is meant to provide potable water to MC under official quality
standards, the goal has fallen behind; the FD has been provided with potable water below quality
standards, and with water containing geosmin, which has been admitted by CONAGUA (see press
conference, CNAz, 06.12.12). Additionally CONAGUA’s plan of action in 2012 was to attack the effects
of geosmin and cyanobacteria, rather than to eliminate the cause—to create a comprehensive plan of
control for the discharge of wastewater to the dams and the tributary rivers that end in the dam, and to
control recreational activities in the dam (such as sailboat clubs and the use of speed boats).
143
Legal and Economic WPR in the Cutzamala System 2004- 2014
Table 13 Legal and Economic WPR in Villa Victoria Dam 2004-2014
Table 14 Legal and Economic WPR in Valle de Bravo Dam 2004-2014
#
& & & &
&
& & & &
& & #
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*(), (%(( (%(( )+%.( **%+, *.%1. *)%/) *(%-. **%/1 (%(( )-%(1 .%1) )-%*) ).- %).
"! ! !""!# "!"$!*((,"*(),
144
Table 15 Legal and Economic WPR in El Bosque Dam 2004-2014
Table 16 Legal and Economic WPR in the main dams of Cutzamala System 2004-2014
Source: Based on CNA Statistics provided by special request, 2015; DOF, 06.22.1982.
Note: NE means that there was no extraction of water from the dam
!&
! %%! ! $&& & $ " $&" #"" "% "% # #$!
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# "" "&# $% %# & #! &$$ %% "$! % % ! &% &
$ "!" !" &#& " ! # %! # &" %%" " $ "
% $$ %& %&# % $% !# "" & !"# !& ! $ &!
& " $%" % ! & "" ! !% $ $ $ &$&
!!" % %!% &&% %$ $"# # #! " %!
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! "# # #%% &! ! % "& " %" !" " %"&$
%&'&%
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" % %"(& $%)) % )$ %!!) $)(' $(%% #')& #%(' ##'' #$(# #&% #)$ $ %!''(
" & $"' #'") $&!$ #')) #)!( #&&& #'$( #&"& "&%) #'( #'%$ #'( $%#$$
" ' #''( #$$# $! ) $!)! $% % #&!! ## !)&! !( & # $" $#%% $$( # $"%(%
" ( $" & $ )" $%" $#'# #)& #"&% "%! ")!% "&$" #'!% $## $ % $$%''
" ) $"%" $ &! $!($ #'(( #&$) #!%$ ")"! !)&" #$) #"'" #!'# ##" ! $!""(
" ! "'$" !$() #%" $ #' #'") ## ( !)( !)$$ #" ' "()! #"(# #'! ) #%($)
" !! #) ! #&($ $"!$ #'!) $"(" ##($ ""(' ""() "& ! "))$ #&"% $ & $ $! $$
" !" #)"& # )) $ ($ $"&$ $& ) #$# "'() "$$# "$(! "(#) #&!# $"! ! $!'('
" !# $ "! #' ! #&"% #&&! #$)! "&(! "$&) #!"' #($$ "%!" #%(" $ ) # $ ( '
" !$ %%%& #)!# $%&( #)#' #'&& "%'! ""$% "$!& #)&) $%$) #'%" #'# % $$)'&
$ () #%') $"&& $!%$ $"!$ #&#) ")(' "( ' # $! #$ % #'&" $ &! $$ # "'$" !$() #%" #&&! #$)! "%'! !)( !)$$ !( & "%!" #!'# ##"! #%($) %%%& $%)) % )$ %!!) %$%( &! $(!! $&!" #)&) $%$) $#%% %"'( %$ &!
"(!$ #!!! !%'$ !$%' !)&( #%") "(#! "&&( "!&# " #' !!(# !)%' !("!"
145
Thus, in order to fulfill the need of water in periods of high demand and low availability, the
solution has been to access water of lower quality but without providing an adequate process for making
it potable. In the case of Valle de Bravo, the solution of controlling the production of geosmin demands a
comprehensive approach that has not been implemented—including boat use regulation and controlling
wastewater pouring into the dam, which are beyond CONAGUA’s legal authority.
The above is important because the production of geosmin, a phototropic process, correlates with
temperature increase. It is also increased when the water level in the dam lowers, in the presence of boats
that break up the surface algae, and in the presence of organic matter coming from wastewater discharges
to the dam or carried by the tributaries rivers that end in the dam, since this nurtures the algae, which is
also correlated with geosmin.
Since those problems have been partially and temporarily addressed by CONAGUA, the problem
of production of geosmin and presence of cyanobacteria in the dam persists. CONAGUA concentrated on
controlling the presence of cyanobacteria in water delivered, but not on the control of geosmin in situ, and
in order to control the problem and to implement collective decisions, an operational comprehensive
approach is needed.
(b) The extraction of water from dams for providing water to MC does not always follow that
purpose. The discretional administration of the Cutzamala system makes uncertain the distribution of
water among WPR owners. Coming back to table 10, we see CONAGUA’s water extraction from
Cutzamala dams to provide potable water to MC in bold type, but the water extracted is not always
delivered to SACMEX or CAEM to be distributed in MC. The variation of water provided may be (1)
below the amount of water extracted from the dams or (2) above the amount of water extracted from the
dams.
(1) In January 2005, the extraction was 52.86 hm
3
, but only 38.46 hm
3
were delivered to MC. The
situation makes a case for several issues related to CONAGUA’s discretional economic appropriation of
water. First, CONAGUA regularly provides water to actors not recognized as part of the agreements of
1972 and 1982. This does not mean that providing water to those who need it is bad in itself, but it does
146
mean that the discretional distribution of water not only jeopardizes the WPR of other actors, but also
endangers the water system itself by pushing the system to its limits. What the situation points out also is
that, if actors besides those with senior WPR need access to the same source of water, the legal
framework should be amended to provide certainty of provision of water and for preservation of the
common good.
Table 12 shows that the municipalities that are not part of MC form one of the actors to whom
CONAGUA has been providing water. Out of the 15.46 hm
3
provided to the State of Mexico, 2.01 hm
3
were for municipalities that were not part of MC. The monthly amount is small, but the annual provision
is almost the equivalent of what the FD gets in a month.
In January 2005, CONAGUA provided the FD and State of Mexico with 38.46 hm
3
, but there
were 12.39 hm
3
provided to other water users.. Thus, 23 percent of the water extracted was either lost or
CONAGUA allowed external users to appropriate that water.
The extraction of water in January 2005 summarizes important problems of the appropriation and
allocation of water from the Cutzamala system, as Table 12 helps to make evident. First, CONAGUA
exceeds the legal appropriation of water. Thus, the agent that it is supposed to enforce legal WPR, and to
protect the adequate management of regional resources, violates the legal framework that it is meant to
enforce and promote. The LAN is clear when states that the extraction of water should never exceed the
volumes allowed (Art. 23); nevertheless, CONAGUA itself violates the rule that is supposed to respect in
the first place. The legal WPR allows the extraction of 46 hm
3
in January, but CONAGUA extracted
52.86 hm
3
in January 2005.
Since the topic of enforcing the legal framework has been very controversial, let us clarify the
CONAGUA economic appropriation of water—because it is vital in the enforcement of WPR. Defendants
of the State of Rights and system of rights may argue that, since SACMEX was granted 283.82 hm
3
per
year from Valle de Bravo dam in 1996, the extractions may be within the limits permitted. If the water
permit of 1996 is evenly distributed through the year, it adds 24.11 hm
3
of legal extraction in January, and
147
therefore, CONAGUA may have kept the extraction under the legal extraction limit, not violating the
legal WPR.
If that were the unlikely case, we must remember that the Decree of 1982 granted the FD and the
State of Mexico the apportionment of 192.37 hm
3
, in addition to the 283.82 hm
3
granted by the permit of
1996 to the FD (see permit 5DFE100309/26HMSG96, surface water annex 1), making a total of 476.19 hm
3
legally granted; however, the dam capacity is only 457 hm
3
. Thus, the legal allocation of water has
created a deficit of 19.19 hm
3
in the case of the Valle de Bravo Dam. Therefore, we must accept that
either CONAGUA is apportioning volumes of water that exceed the capacity of Valle de Bravo Dam, or it
is violating the limit of legal extraction of water from dams, based on the amount of water granted by the
Decree of 1982. In either case, since CONAGUA is in charge of preserving the hydrologic equilibrium
(Art. 9), and to fix the overexploitation of water sources (Art. 15), it is clearly violating the LAN by not
performing its legal obligations.
(2) A second type of extraction can be exemplified by the extractions in July (except for 2004).
The best example is July 2010, in which CONAGUA extracted 19.80 hm
3
from the Cutzamala dams but,
according to SACMEX and CAEM records, it delivered 38.69 hm
3
to MC. This situation, which is not
unusual as Table 12 shows, contradicts CONAGUA’s well-known assertion that the performance of the
Cutzamala system is based only on water availability from dams (CONAGUA, 2011, 2013; IMTA,
2002). What the previous data shows is that the stress of water produced from the Cutzamala system due
to MC demand of water has been transferred to other basins or other sources of water, but the fact is not
officially recognized. The data underlines the need that, in order to create appropriate regional
management of water, the transference of water stress to other systems or water sources must be
acknowledged. It must also recognize the actors affected, and that discretional water management based
on decisions of one actor (CONAGUA) is not producing the best results, but is rather concealing the
danger imposed on other sources of water.
The cases in which CONAGUA, for the purpose of providing water to MC, extracts more water
from the dams than is delivered to MC, or delivers more water than the amount of water extracted, raises
148
questions about under what cases and conditions CONAGUA is willing to enforce the legal WPR. It asks
under what cases the WPR must be suspended, or more importantly how water users must deal with those
levels of uncertainty regarding physical appropriation of water to provide water within their jurisdictions.
Moreover, if CONAGUA were willing to enforce Legal WPR regarding the Valle de Bravo dam,
it is difficult to see how it can do so when the FD has accumulated annual WPR over 77.80 percent of the
volume in the dam, which is the equivalent of 355.55 hm
3
, although the median of the volume kept in the
dam during the analyzed period was only 301.3 hm
3
. Even in the implausible case of only granting the
WPR from the 1996 accord while nullifying the amount of water granted by the Decree of 1982, the FD
still have legal WPR of 94.2 percent of the real storage of the dam, which negates legal access to water by
other water claimants. Thus, the inconsistency of legal WPR and de facto appropriation of water
reinforces CONAGUA’s discretional decision-making process. Thus, it is imperative to pair legal WPR
and economic WPR and to create a regulatory framework according to existing conditions of regional
water availability, water users, and uses of water. If allocation of water must follow a legal path, solving
the contradictions between legal and economic WPR is an urgent step.
What is most important in this fluctuation of legal appropriation versus economic appropriation is
not only the annual balance, which seems not to exceed the legal amounts of water granted, but the fact
that the amount of water granted requires the dams to drop below the minimum amount of water they are
supposed to hold. This jeopardizes the provision of water to MC in the middle term and long run, and
more importantly, the variation of water extracted will impact the distribution of water provided monthly
to the FD and the State of Mexico, which in turn makes it difficult to provide citizens with a regular,
secure, and permanent provision of water.
(c) The discretional provision of water to MC has promoted inequalities in the distribution of
water at a metropolitan level. The discretional distribution of water has benefited the FD more often than
the metropolitan municipalities in the State of Mexico. The lack of consistency between legal WPR and
Economic appropriation for SACMEX and CAEM are shown in the following figures.
149
The core legal framework for the distribution of water to MC, shared between SACMEX and
CAEM, is still the WPR granted by the Decree of 1982. Figure (10) shows volumes of water received by
SACMEX and CAEM. The graphs of water provision to SACMEX and CAEM with water from the
Cutzamala system show important differences. For example, the discretional distribution of water has
created permanent and huge inequalities in water distribution.
Figure 10 Water Provision to SACMEX and CAEM from 2004 to 2014
Source: Table 12; DOF, 08.18.1972; DOF, 06.22.1982
The graph on the left shows the monthly WPR provided to the FD. Out of the 132 months
analyzed, the provision of water to the FD exceeded the amount of water granted by the decree in 128.
Every single year the FD was provided with its annual legal WPR, and while in 2009 and 2013 it barely
exceeded (by one percent) the legal amount of water granted, in 2004 and 2005 the provision was 28
percent over the assigned WPR.
In contrast, the graph on the right shows the case of the metropolitan municipalities in the state of
Mexico. The values correspond to the total amount of water CAEM was provided with from the
Cutzamala system, whether to be used in metropolitan municipalities or not. The black line shows the
amount of water granted, and it is evident that in no year did the metropolitan municipalities receive the
amount of water granted by the decree. Thus, while the distribution of WPR to the FD exceeded the water
granted 89 percent of the time, the state of Mexico was never granted all its legal WPR. The
correspondence between the excess over the legal amount of water granted to the FD and the deficient
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150
provision of water to the metropolitan municipalities is quite evident, and performed based on discretional
decisions that have become consuetudinary.
If the analysis is constrained to the amount of water granted to be used in the metropolitan
municipalities, which is in fact what the Decree of 1982 granted, then the situation is even more dramatic,
as the following figure shows.
Figure 11 Water Provision to the Metropolitan Municipalities
Source: Table 12; DOF, 08.18.1972; DOF, 06.22.1982
The median in each month varied from 44 percent to almost half of the amount of Legal WPR.
This huge difference can be partially explained by the annual accords for water provision signed between
CONAGUA, CAEM, and SACMEX by which the volumes to be delivered are modified.
As stated previously, the current apportionment of water is based on the Decree of 1982, which
includes a clause that volumes of water can be adjusted when hydrologic conditions in the Cutzamala are
reduced. This Decree also includes a clause asserting the possibility of creating accords for reduction,
suspension of provision, and substitution of sources of water to complete the provision granted. The first
clause has been used to establish annual adjustments to the provision of water to CAEM and SACMEX
and the second clause for making permanent a groundwater exploitation program meant to be temporary:
the PAI.
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151
In theory the annual accords should be multi-partner agreements stated in formal accords; in
practice, usually CONAGUA makes decisions through its regional representation the OCAVM, and then
informs the other two agencies about the annual adjustments.
The decision about adjusting volumes to be delivered is made by a technical committee of
OCAVM, which oversees the dams’ functioning and makes decisions regarding curtailing the original
10.858 m
3
/s granted to the FD and 8.142 m
3
/s granted to the State of Mexico. In practice the
apportionment to the State of Mexico has been reduced to 5.7 m
3
/s—but completed with water coming
from the PAI.
For example, in December 2009, the OCAVM informed CAEM that the reduction of the
provision of water in 2010 was going to be 3.99 m
3
/s, even though reductions of provision had already
been applied since the middle of 2009—as the previous figures showed, 2009 was the year with the
lowest amount of water provided. The decision of reducing the provision in 2010 was challenge by the
State of Mexico, and it was only applied in January and progressively modified to officially restate the
customary provision of 5.7 m
3
/s in May. The apportionment was modified as the following table shows.
Table 17 Water Adjustments in 2010: Reduction of Water OCAVM-CAEM
Based on statistics provided by SACMEX and CAEM by special request, 2015.
" #!""!0./
" "*! # % 1)77 # % 2)053
2)5.1 3)055
% 3)5
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152
The comparison of the amounts of water granted by the OCAVM, the regional representative of
CONAGUA, and the amount of water received by CAEM, shows that the agency ended up receiving 6.60
hm
3
of water less than the amount promised to be delivered by the OCAVM. Why do these situations
happen?
First, the Presidential Accord of 1982 does not include any incentive system to enforce
compliance, thus the decree has served as a standard—but only as a reference for water provision rather
than a binding rule for creating full WPR.
Second, the official communications between OCAVM and CAEM regarding the apportionment
of water do not include any enforceable rules either. Decisions made by the OCAVM have been managed
as administrative accords that can be modified at any point in time, rather than being binding agreements
with legal consequences. These decisions, therefore, have doubtful use as a tool to help planning the
provision of water in different jurisdictions, mainly under the requirements of providing water to assure
water as a human right (see section 1.5.1 in Chapter 1).
Third, the interpretation of the accords, their implementation, and their enforcement, have always
been solved administratively between OCAVM-CAEM or OCAVM-SACMEX. Hence, the
disagreements are a bipartite issue, not the result of collective decision involving the relevant actors to
promote the preservation of the system as a whole. Rather than granting an individual benefit for water
use, then, the one-to-one arrangement and settlement has set aside the needed multi-agent participatory
decisions. The situation is explicitly stated in the OCAVM-FD accord signed in 2011: Federal Courts,
located in the FD, can intervene only when the actors are not able to find an administrative solution.
The intervention of the Supreme Court under the above conditions sounds logical and of common
sense. Nevertheless, its intervention will not solve the problem of provision of water on a yearly basis
when, for example, the OCAVM has been letting CAEM know about changing the amount of water in
March, and the change has been in place since the start of the same year. That means that the official
acknowledgement of the reduction of water provided takes place after the fact, as in March of 2012, when
the provision was reduced to 4.9 m
3
/s. This means that, if the reduction is communicated in March, and
153
the agents try to solve the problem but no solution is reached, by the time the complaint reaches the
Supreme Court, it is likely to be too late to solve an on-going need for water. In the meantime, the
conditions in the dams may have changed, and the provision may have been restated. Thus, from the
practical point of view, the administrative solutions have prevailed, but have produced the results shown
in graphs 10 and 11.
5.7 Water Apportionment in the Lerma System
The decrees from 1951 to 1972 define the apportionment of water from the Lerma system, water
coming from basins that affect five states and including important water appropriation from the states of
Michoacán and Mexico. The process of water apportionment shows three main factors: the intervention of
the President of the Republic as a dominant actor, the expression of generic executive power acts to
impose water apportionment at a regional level, and the idea that WPR can be created by simply
announcing them rather that being complemented with effective systems for monitoring and incentives
for their implementation.
Whether the president took a direct decision (Decrees of 1951 and 1954, and 1965) or he
delegated the power to impose his decisions (Decree of 1966, agreement 2011), the Presidential figure has
always been the dominant actor in the process of apportionment of water. The contemporary creation of
water appropriation for providing water to MC from the Lerma system started before these Decrees by
limiting physical access to a common good in the Valley of Lerma and also by creating the Valley of
Mexico Water Commission, an ad hoc institution to address regional water issues as regional authority on
water.
The Decree of 1954 banned the extraction of ground water in the Valley of Mexico. The ban
excepted the exploitation of groundwater for human consumption. It also delegated the monitoring and
implementing systems to the Department of Hydraulic Resources (SRH), but failed a basic principle for
management of common goods: to clearly specify the geographic area destined to maintain the reserves of
154
groundwater for present and upcoming uses. It also failed the identification of relevant decision makers
able to promote an adequate management of water at a regional scale.
Even though the decree stated the need of hydrogeology studies for granting new WPR, and a
time limit for renewal or validation of existing economic or legal WPR, it neither set any incentive system
to comply with what it is expected, nor stated any penalty for those who did not comply with what was
mandated. Moreover, the decree left the control of volumes of water, and hydraulic infrastructure, under
the discretionary decisions of the SRH personnel. Hence, principles of bounded rationality suggest that
water users would choose not to deliver the requested information, preventing the President and the
Secretary of Hydraulic Resources from making arbitrary decisions regarding their WPR. This desire to
avoid providing the information was exacerbated by the uncertainty created by the new process both to
keep their existing economic WPR and to gain new WPR under the discretionary decisions of the SRH.
Moreover, the Decree of 1954 created high levels of uncertainty regarding under what conditions the ban
on wells could be invalidated, or what players would have access to groundwater in the future. Thus, the
ban aimed to halt economic WPR by just asserting duties for both the water appropriators and the
authority on water, but without providing means to reach the goals.
In 1965, the ban on extraction of groundwater was extended to an adjacent area located in the
Valley of Toluca. In a way, this decree moved forward the effort of delimiting the geographic area by
using an official map to list 29 municipalities to restrain physical access to groundwater in that area. Even
though the decree includes the whole territory of 22 municipalities, it still maintains the limitation from
the previous decree in the Valley of Mexico, because it mentions that the ban includes partial territory in
seven more municipalities without defining the boundaries within those municipalities. The new decree,
then, still maintained fuzzy boundaries limiting access to groundwater. In essence, this decree kept the
problem of vagueness while defining the geographic area for physical access to a common pool resource.
The Decree of 1965 shows that the main actors to make decisions on WPR in the Valley of
Toluca were also the President and the Secretary of Hydraulic Resources, keeping the concentration of
decision making power at the federal level. This decree, while being an extension of the Decree of 1954,
155
keeps the same limitations regarding the power to exclude, as well as the legal, physical, and tenure
uncertainties for both parties: the SRH remained unable to identify the economic appropriators of
groundwater PR, and water users still had to deal with high levels of uncertainty. This happened because
groundwater PR were evaluated on a case-by-case basis, with allocation decisions made under individual
discretion rather than through a set of standardized procedures. Moreover, the decree includes the implicit
assumption that the SRH was able to identify a common goal for water use, and to make the best decision
regarding not only the use and usufruct of groundwater but also the best use of hydraulic infrastructure.
For water users, the SRH represented a permanent threat of taking over WPR or hydraulic infrastructure.
5.7.1 The Agreement of 1966
A year later, the president performed an indirect allocation of groundwater from the Lerma
Valley to benefit the FD. The allocation of water was granted by an agreement by which the FD got a
blank check to use groundwater from the Valley of Lerma.
The process of water allocation was presented as a democratic, inclusive, and fair process by
which the government of the State of México agreed to collaborate and coordinate for the purposes of
providing water to the FD with water coming from the Valley of Lerma. In the agreement, the FD had the
dominant role, the governor of the State of Mexico had a joint role, and the Secretaries of Hydraulic
Resources and Agriculture and Livestock acted as facilitators.
The agreement granted the transference of 5-6 m
3
/s of groundwater to the FD; it also granted to
the FD the right to build all the infrastructure for the whole water system, and to operate and maintain it.
The agreement was, in fact, a presidential decision that authorized and defined the conditions under which
the FD and the two secretaries signed an accord with the government of the State of Mexico.
Additionally, the agreement cites a decree from the State of Mexico Legislature by which the state
government and municipalities agreed to facilitate the construction of the potable water system, and to
collaborate with the FD for the construction, operation, and maintenance of the water system. With all
these factors, the process depicted the creation of the water system as the result of collective decisions.
156
Decree of the State of Mexico number 88, from August 13, 1966 (published 08.17.1966), tells a
different story. The Decree not only authorized the governor of the State of Mexico to enter into an
agreement with the FD and the two federal secretaries for the extraction and conduction of water from the
Lerma River Basin to the FD, but it orders the governor to do so under the terms and conditions fixed by
the President. Thus, the appropriation and apportionment of water in the Lerma River Basin to benefit the
FD has, as a main component, a discretionary decision based on presidential executive power that creates
a privilege and grants a benefit, rather than being the result of a democratic and comprehensive process to
create WPR as the federal agreement, in theory, advocates.
Democratic or imposed, the presidential decision of water apportionment is an example of an
effective generic executive power act because it put together three key actors: the President himself, and
the legislature and Governor of the State of Mexico. Even though the Mexican Government is highly
centralized, in cases of political disagreements, the governor has the legal authority to disagree with the
local congress and not publish the decree in order to avoid its formal recognition. In this case, however,
the decree was published in the official gazette on the first possible day after it was approved, showing
how well the President controlled the various levels of government regarding water appropriation and
apportionment.
The blank check the president gave to the FD, however, was not free. In return for fast track and
State of Mexico collaboration to provide the water granted, the President decided, it was not the result of
an agreement among parties, that the FD should pay the State of Mexico the following:
157
Table 18 Payments DF-State of Mexico for Water Appropriation from the Lerma River
Source: Based on the Presidential decree of 1966, and Federal Agreements 1968, 1969, and 1970.
Although the monetary contributions were important, in time the concepts from this agreement
became more significant for water appropriation reasons. For example, even though the FD financed the
creation of the three kinds of infrastructure, as seen in the previous table, it was not in charge of their
construction.
In the case of the provision of potable water, the FD paid for water systems for domestic
consumption, although the construction of those systems were under a state of Mexico water operative
organization, while the SRH and the State of Mexico Government were facilitators and also in charge of
monitoring the construction. Once the local operative organization found the proper locations, the SRH
would grant the permits for groundwater exploitation, and both the SRH and the government of the state
of Mexico would be in charge of monitoring. Thus, according to the agreement, the water systems for the
provision of potable water for the FD and the local towns were separate systems, but nowadays, towns
nearby the wells take water from the FD system under the assumption that it is “their” water,
demonstrating that economic appropriation has overcome the legal apportionment granted to the FD.
Moreover, as part of the agreement of 1966, the State of Mexico demanded the desiccation of
7,000 ha from the lake of Lerma within a two-year limit, which indicates the implicit interest of local
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158
actors for accessing and controlling land for cropping (whether politicians who had been interested in that
area since the beginning of the 20
th
century, or farmers, as the decree asserts). The agreement also depicts
the presence of a powerful but invisible actor in the public arena: the user of water for industrial purposes.
5.7.2 First additional Agreement, 1968
In 1968, an additional agreement granted the appropriation of 7 m
3
/s more; 5 m
3
/s were to the FD,
1 m
3
/s to the area Naucalpan-Zaragoza-Tlalnepantla, and 1 m
3
/s to the Ecatepec and Netzahualcoyotl
municipalities. The agreement empowered the FD to identify the appropriate sources of water, and to
build the infrastructure for appropriation and conduction of water in the area bordering the José A, Alzate
dam (see location in Cutzamala System Figure 5).
The new agreement was presented as an addition to the 1966 agreement, which in financial sense
was partially true because complementary payments for construction of water systems and schools were
added to the original payments the FD made. But this time the FD had to add 2/3 of the original payment
for financing the construction of potable water systems in municipalities and the construction of schools.
This extra payment can be seen as an outcome of local rearrangements about exchanging creation of
municipal services by WPR while having a Federal imposition on water appropriation (see Table 18).
Another reason to consider it as added to the original agreement is that, by creating new legal WPR but
linking them to the original agreement, the signatories subscribed to the reasons for which the original
agreement was created.
But at the same time, the agreement was a completely new agreement because it created new
legal WPR under different conditions. The addition granted the privilege of using more water, which was
not included in the original agreement. The water appropriated also imposed changes to the
apportionment and distribution of water. In this new process the FD was not only granted the use of a
certain amount of water, but was also required to build infrastructure to obtain 2 m
3
/s of water and to
deliver it to specific areas for its use in metropolitan municipalities. The difference is that in the original
159
agreement, the FD had only agreed to finance the construction of infrastructure of provision of water for
human consumption, not to fabricate the system itself.
Moreover, a prioritization of water use was defined. The agreement stated that the provision of
water to the FD or for domestic consumption in municipalities listed in the agreement should not compete
against industrial uses of water in the Valley of Toluca, but the amount of water, whether in percentage or
amount, was not defined. Thus, it was implicit that the water for industrial purposes had priority over the
use for human consumption, regardless of the amount of water needed for industrial purposes. This way,
groundwater for industrial use had more effective legal certainty than provision of water for human
consumption.
The agreement also added that the WPR for human consumption in towns, and water for
industrial use in the valley of Toluca, should not be affected by the extraction of groundwater to provide
fresh water to MC or by the creation of water system for the towns covered by the agreement. The
agreement delegated the responsibility of verifying the levels of the aquifer to SRH in order to preserve it,
but it did not state how often the measurement should be performed or define the conditions to stop the
extraction of water. Worse still, it did not define an actor with power to exclude.
As in the original agreement, the President had the dominant role, with authority delegated to the
FD mayor, to create the agreement with the State of Mexico Governor. Nevertheless, there were three
more cosigners. They did not have roles in the agreement, but the participation of two of them is
important for the creation of a generic executive power: the Secretary of Interior and the State of Mexico
Secretary of Government.
5.7.3 Second Additional Agreement, 1969
In 1969, there was a second addition to the original agreement. The dominant actor was the FD,
and the join actors were the Governor of the State of Mexico and the SRH Secretary. The agreement was
about demanding extra payments from the FD to build basic infrastructure in municipalities where the
160
wells were built. This demand for extra payments could be seen as an amendment to the agreement, one
made outside the normal centralized method of creating legal WPR.
The 1966 agreement was partially completed in 1970, with an agreement designed to settle the
contractual obligation of the FD regarding desiccating the Lake of Lerma and compensation to the State
of Mexico. It is interesting to note that the agreements between the FD and the State of Mexico, after the
original agreements, have been the source of controversy regarding who is the actor responsible for
providing water to the municipalities where the wells are located. The 1966 agreement stated that the FD
had the duty to provide potable water to the towns on the municipalities near the wells from which the
water was taken, but the contracted obligation was to finance the construction of wells and potable water
systems, not to build the infrastructure or to deliver water to the municipalities. Thus, the agreements’
interpretations have been constant sources of dispute for water appropriation in Lerma between the FD,
state of Mexico Government, and local communities.
Although the settlement implicitly recognizes the existence of legal WPR, the process of water
appropriation and apportionment has been a good example of physical and tenure uncertainty. In 1970,
after continued extraction of groundwater, the FD was not able to desiccate the Lerma Lake and had to
pay the 10 million pesos demanded by the original 1966 agreement. In addition, the FD had to
compensate to the State of Mexico 56.4 million pesos to improve the basic infrastructure in municipalities
where wells were built, in order to settle a clause of the initial agreement.
In synthesis, the presidential decisions on water appropriation and water apportionment created a
very weak system of WPR. The initial compensation paid by the FD for the extraction of at least 5-6 m
3
/s
was 41.7 million pesos in 1964, two years later for extra 5 m
3
/s the compensation was 50 million pesos,
and a retroactive compensation regarding the initial agreement was added. These extra payments indicate
that, in order to enforce legal WPR, the process of physical appropriation of water had to deal with local
demands. In addition, the extra payments seem to be linked to opportunistic actors, who tried to intervene
and obtain extra compensation when the construction of the Lerma System and the lack of effective
accountability for public functionaries created a window of opportunity.
161
In any case, between 1966 and 1970, the FD ended up compensating the State of Mexico 227.7
million pesos for accessing at least 10-11 m
3
/s and added the duty to deliver 2 m
3
/s to specific locations.
In other words, the FD paid almost 2.5 times more money than the initial amount demanded due to
additional payments for a minimum amount of water defined, but the maximum volume of water was
never stated.
Regardless of the creation of legal WPR and their recognition by the federal and state of Mexico
governments, the legality of the WPR did not provide physical certainty; on the contrary, the settlement of
1970 recognized that the government of the State of Mexico was profiting directly from the aqueducts
that conduct water to the FD, rather than finishing the infrastructure as agreed to provide water to the
municipalities. Since there was no effective system for monitoring responsibilities expected and
privileges granted, water appropriation was an out-of-control process in which even the government of
the State of Mexico was illegally appropriating water. This happened because the presidential water
appropriation did not provide any level of government with the power to exclude, nor did it build systems
to provide physical and tenure certainty to constrain the acts of other water users. Although the agreement
assigned responsibilities, it did not set the means to achieve them; as a result, water conflict has been a
permanent threat to the provision of water to MC, mainly in drought season. This situation is bolstered by
the absence of a system of incentives and punishments to reinforce legal WPR and by the absence of
alternative and comprehensive processes to create effective WPR.
With time, the situation of controlling effective access to groundwater has worsened. The
situation is linked to of a) the absence clear boundaries of the system, b) having a system with no
mechanisms for providing accountability, and c) the absence of an actor with power to exclude. Thus, the
creation of a system for the implementation of noninterference rules that guarantees physical and tenure
certainties is needed.
The accords of 1966 and 1968 granted the construction of water infrastructure to the FD. The
former granted the appropriation of water from the aquifers of the Lerma River and the latter set the José
A. Alzate dam as the northern boundary, but the absence of clear definition of physical access to
162
groundwater has led, in practice, to wells beyond that boundary. Operational blueprints (See GDFd to
GDFg) show that the FD ended up with wells 30 km (18.6 miles) north of the dam. Since the agreement
in fact authorized the FD to build the wells and only then to inform both the SRH and the government of
the state of Mexico, the real physical boundaries for groundwater appropriation were set without regard
for legal boundaries.
As part of the agreements there was an important clause about no interference for water uses and
the water the FD was granted. A blueprint of may 1993 (See GDFc) shows that the Lerma System had 40
wells for producing potable water and 42 pumping stations, while there were 92 wells for irrigation
purposes with only 17 pumping stations. If the FD was pumping more water it may only mean that the
water was taken further from its point of extraction, not necessarily that the FD was taking more water
than users of water for irrigation; similarly, less pumping may indicate only local consumption of
groundwater. But at the same time, if there were more pumping stations, it meant that the FD was also
reaching aquifers year-round, while water for irrigation is generally used in specific times of the year. If
that was the case, there are three important issues the WPR must solve in the PAI and Lerma systems.
First, from the common law perspective, as in other cases of common law analyzed in the first
chapter, the Lerma system has unclear regulation. The agreements granted to the FD prior appropriation
rights over groundwater in Lerma Basin, and imposed the obligation on cosigners to not interfere with the
water already granted for industrial and human consumption, nor to interfere with the FD granted
privileges; but by only enunciating the obligation, without creating a system to exclude, the legal WPR
were contested. By maintaining differences between what is mandated and what is performed, the system
stimulates water conflicts and legal controversies for water appropriation, particularly in situations of
scarcity. Moreover, the FD has legal WPR but local water users have economic WPR, and both types of
proprietor want to satisfy their water needs. Eventually, this over-extraction of water jeopardizes the
aquifers. Thus, effective WPR, in a first step, should define the regional and local actors with current
water rights and the conditions under which they are allowed to access permitted volumes of groundwater
under both normal and special conditions of water availability.
163
Second, WPR may be more useful in protecting the depletion of groundwater. Depletion of
groundwater, as shown by the lowering water table, has been registered, but each actor has only a partial
picture of the phenomenon. For example, there is an operational rule in MC of not having wells closer
together than 500 meters in order to avoid the depletion of groundwater (CNA-MemoA, 2008), which
seems not to apply to Lerma Basin. Blueprints of Lerma System (see DDFd, DDFe) show an increasing
number of private wells located in several areas in a radius smaller than 500 meters, where the water table
was lowered 0.5 m (1.64 ft.), in only three years—from 1986 to 1989. Even though the 1966 agreement
mandated the SRH to be in charge of regulating groundwater use to avoid its depletion, the results shows
that the order was never implemented, and the proximity of wells is linked to lowering the water table.
Additionally, the Government of the State of Mexico asserts that between 1970 and 1987 the water table
was lowered 70 m (230 ft) in the industrial area near Toluca and between 10-30 m (33-98 ft.) in the rest of
the Valley of Toluca. In Lerma City, the area where the two lines of conduction from the Cutzamala
systems merge, it has lowered 40 m (130 ft.) (Supreme Court, 2004). Even with these effects, neither the
SRH nor CONAGUA were accountable for reducing depletion of the water table. In addition,
CONAGUA has not been accountable for preventing negative effects to third parties, to the sources of
water, or to the basins, as the Law of National Water orders (LAN, 1992: Art 29 and 86). To CONAGUA,
water permits are granted from 5 to 30 years and grant the usufructuary use of certain amounts of water,
but the responsibility to install water meters and their maintenance has been placed on water users, rather
than on CONAGUA itself. CONAGUA recognizes that has power to cancel the water permits has
granted, but it does not have power to exclude water users from physically appropriating water (CNA,
Memo BOO2.1812, 08.19.2015).
The use of water based on water users’ good faith cannot continue, but must be replaced by the
enforcement of fair rules to ensure equitable and responsible use of water for all water users. Thus, the
WPR should tie a system of accountability to a common legal framework to be implemented in the whole
Lerma system, to achieve two main goals: to preserve water availability in both shallow and deep
164
aquifers, and also to stop transferring the negative effects of groundwater depletion from MC to other
basins.
Third, as in other water systems, investment and scarcity seem to be the drivers of creation of
riparian rights in the Lerma system. In 2003 the Government of the State of Mexico requested the
Supreme Court to invalidate the FD water permits in the State of Mexico on the grounds of water
depletion and illegal water appropriation. The immediate antecedent of this action goes back a couple
years before.
In 2001 the State of Mexico Governor contested the agreement of 1966 and the FD water permit
of 1996, by which the FD acquired its legal WPR in the State of Mexico. The government of the State of
Mexico presented three main arguments to the Supreme Court: the FD threatened its sovereignty, the
water permits were granted temporarily, and the apportionment of water was originally granted to a
different entity than that which was exercising them at the beginning of the 2000’s.
The Governor claimed that the agreement of 1966, regarding FD water appropriation and water
apportionment, threatened the State of Mexico’s sovereignty. The Supreme Court ruled, based on the
fourth recital of the agreement, that the Local Legislature and municipalities’ approval invalidated this
assertion—even though as I analyzed earlier, the local decree never mentioned the municipalities’
agreement, let alone including municipal approvals as proof. So the 1966 agreement, just or not, created
an effective, legally enforceable, generic executive power, which the Supreme Court was unwilling to
challenge. The Supreme Court ruled that water belongs to the Nation, not to the State where the water is
located, and that the FD WPR stand.
Regarding the claim that the usufruct of water was granted on temporary basis, the Supreme
Court ruled that the FD had acquired perpetual WPR in the state of Mexico. Strangely enough, both
interpretations are correct, because as previously analyzed, the FD legal quasi-WPR were granted until a
certain condition was met, not when a period of time had occurred. Since this condition—that the FD
fulfills its water needs from other water sources—is unlikely to occur, due to the model of use of water,
both claims are valid, and the acquired WPR are both temporary and perpetual. This situation reinforces
165
the need for development of a more specific and comprehensive WPR under contemporary needs of
water.
Moreover, as part of the same legal process, the State of Mexico challenged the FD use of water
because the agreement of 1966 was signed with the FD Department as an individual legal act, not as a
legal act derived from a legal framework of general application (e.g., as the result of a law), and it was
signed with an entity subordinated to the Federal power, not with an autonomous entity, which the
Government of the FD had become. The argument was linked to an uncontrolled extraction of waters the
FD had performed in the State of Mexico. According to the State of Mexico Government, the FD had
built 274 wells, which, until 1996, did not have water meters, date of initiation, nor the required permit or
registration; therefore, according to the State of Mexico, the FD was openly violating the LAN and its
bylaws. When the FD was assigned its new WPR permit in 1996 (permit number
5DFE100309/26HMSG96), the FD used it as a legal basis to built 250 more wells, which were also
operating without water meters, date of starting operation, or permit from CONAGUA. Additionally, the
State of Mexico claimed that the FD was building backup wells in unknown locations, and that the
construction of those wells constituted an illegal appropriation of water. The Government of the State of
Mexico requested that the control and administration of water systems that provide water to MC from
sources in the state of Mexico be taken by the Federal Government to create agreements based on more
rational use of water.
The request was initially addressed to the Environment and Natural Resources Secretary. The
Secretary, responsible for the hydraulic policy in Mexico, instead of solving the petition, transferred its
responsibility to a regional actor without decision power: the Comisión de Agua y Drenaje del Área
Metropolitana (CADAM—Water and Sewer Metropolitan Commission, in which CONAGUA, the FD,
and the State of Mexico analyze regional issues on water). This situation reminds us that, in order to have
effective WPR, functionaries and high bureaucracy should be accountable for their decisions or lack
thereof.
166
Since the answer of the Environment and Natural Resources Secretary did not provide an
adequate response to the request, the original petition was readdressed to the Supreme Court.
The Supreme Court, with seven votes in favor and three opposing, nullified the request of the
Governor for the Federal government to take over the control and administration of water systems that
provide water to MC under the FD administration, in order to avoid increasing the depletion of water
sources in the State of Mexico. The Supreme Court’s rationale was that, in cases where the sovereignty
and freedom in the state is threatened, the controversy should be handled by the local Legislature rather
than the Governor, because the Legislature has the legal representation in such cases. The Supreme Court
dismissed the request.
The controversy provides several useful lessons. The Supreme Court found a legal resource to
avoid two controversial issues on water governance in MC: to define who owns what (a first level
governance issue), and who does what (a second order governance issue). Moreover, the Supreme Court
overlooked the lack of accountability and avoidance of responsibility of high-level bureaucracy. The
process of the creation of WPR, in the case of MC, has been closely linked to a political process and
technical approaches that lack effective systems of incentives to keep decision makers accountable for
their responsibilities.
167
5.8 Synthesis of Legal Water Apportionment
Actors Jural
authority
Actor’s
function
Entitlement (Rights
transferred, Amount
& type)
Period
granted
Actors in
regulation
Duty of noninterference Security of property rights Monitoring &
implementing system
Decree of 1951
President
Constitution
& Federal
laws
Dominant
1
No power to exclude was granted.
But the VMWC would establish
agreements for water provision.
Water fees should include
amortization costs, operation,
maintenance, and improvements
of the water provision system, and
they should be defined in
agreement with State and
municipal governments.
Legal uncertainty: low, decision
were centrally controlled
Physical uncertainty: high. No
protection for variability of
volumes of water provided.
Tenure uncertainty: high.
Decision were based on
discretional decisions
No system of incentives
or penalties was defined
No monitoring or
implementation system.
Federal laws Join
FD FD’s Law Join 1
VMWC Decree
Future
facilitator
1
Decree June 1954
President
Art. 27
Constitutiona
l & Federal
law
Dominant
Ban on exploitation
of groundwater in
the Basin or Valley
of Mexico.
Permanent
1
No power to exclude was granted
Legal uncertainty: very high.
The banning polygonal was not
clearly defined.
Physical uncertainty: no specific
rules but decisions were based
on a case-by-case bases
Tenure uncertainty: previous
water appropriation were
invalidated, and time limit to
validate WPR was set
The SRH was implicitly
assigned to obtain an
update water users
census, based on users
obligation to inform
SRH about their water
consumptions. No
systems of incentives
and penalties, nor
monitoring and
implementation were
included.
SARH Join 1
Decree September 23, 1965
President
Art 89
Constitution
and Federal
Law on
water
Dominant
Ban on groundwater
exploitation in the
Valley of Toluca,
and protection of
the Lerma River
Basin
Permanent
1
SRH is assigned to enforce the
Article 13 of the LAN, to regulate
new wells.
Legal uncertainty: High. Certainty
granted only to wells producing
water for human consumption
Physical uncertainty: lack of
identification of water users and
volumes appropriated. And the
control of infrastructure was under
unknown SRH rules
Tenure uncertainty: high, granted
legal WPR which demanded
geohydrology studies
SRH is assigned to
retrain the proliferation
of wells and their
proximity.
No system of incentive
to enforce the decree in
the 22 municipalities
and the partial territory
of seven municipalities,
defined by the decree,
while imposing
unrealistic technical
demand on water users
SRH Join 1
168
Actors Jural
authority
Actor’s
function
Entitlement (Rights
transferred, Amount
& type)
Period
granted
Actors in
regulation
Duty of noninterference Security of property rights Monitoring &
implementing system
Agreement December 16, 1966.
FD Government
Decree of
1972,
Federal laws,
and FD laws.
Dominant
Goal of 5-6 m
3
/s.
the Federal
Government grants
the FD to built
wells and
infrastructure to
take groundwater
from the Lerma
River Basin to
satisfy MC need for
fresh water
Until
alternate
sources of
water
satisfy MC
need for
water for
urban use
1
The decree asserts the existence
of previous agreements with
municipalities and the State of
Mexico and municipal
governments. The local legislature
authorized the governor to
establish the agreement.
The FD finance for water
provision for a determined
number of municipalities,
construction of schools, and local
roads; and the State of Mexico
Government implements and
monitors the construction.
FD select locations for water
extractions, SRH takes the land,
and FD pays to land owners
Legal uncertainty: very low,
since the local legislature and
the state executive created a
generic executive power act
Physical uncertainty: medium,
the FD will decide the best
locations to get water, but
municipalities were granted
water without defining quantities
Tenure uncertainty: high, the
boundaries of water access were
not defined neither were actors
Non Existent. There was
not included any system
of requirement for
accountability regarding
the construction of
infrastructure.
No penalties included
in case the actors failed
the assigned
responsibilities
2 Secretaries
(SRH+
Facilitator 1
Agriculture and
livestock
Secretary
Facilitator 1
EdoMex
Governor
Secretary of the
government
Join 2
State of Mexico
legislature
Municipal
Boards
Facilitator
& implicit
municipal
agreement
Not stated
First Addition to the 1966 Agreement, December 20, 1968
President
Constitution
and Federal
Laws
Facilitator
Apportionment of 7
m
3
/s. 5 m
3
/s for the
FD, 1 m
3
/s to
Naucalpan-
Zaragoza-
Tlalnepantla area;
and 1 m
3
/s to
Ecatepec-
Nezahualcoyotl,
which are
municipalities in the
State of Mexico
Temporal
but the
original
period
granted
stands
1
SRH was assigned to preserve the
aquifers, and the original WPR of
industrial and human
consumptions.
Legal uncertainty: medium. It
was created as a Presidential
decision
Physical uncertainty: high, the
FD decides locations to get
water, but municipalities were
granted water without defining
quantities
Tenure uncertainty: high, new
water claimants can get
economic WPR without any
agent to exclude them
Lack of accountability.
The FD government
made the payments but
the State of Mexico did
not build the
infrastructure; there was
neither an accountability
system nor a system of
incentives to comply the
agreements
FD
Authority
delegated by
the President
Dominant 1
Secretary of
interior and
Secretary of the
President
None
2
Two federal
secretaries-
SRH, and
Agriculture and
livestock.
Join 2
169
Actors Jural
authority
Actor’s
function
Entitlement (Rights
transferred, Amount
& type)
Period
granted
Actors in
regulation
Duty of noninterference Security of property rights Monitoring &
implementing system
State of Mexico
Governor
None 1
Secretary of the
State of Mexico
government
None 1
Second addition October 3, 1969
DF
Defined in
the original
agreement
and implied
in this
addition
Dominant
SRH demanded
financing for basic
infrastructure in
municipalities
1 The delegation of WPR to the FD
included payments extras
Legal uncertainty: medium. It
was created as a Presidential
Decision
Physical uncertainty: high, the
conditions form the first addition
persisted
Tenure uncertainty: high:
condition from the first addition
were valid
Lack of any
accountability
mechanism, it is not
stated the periodicity of
payments. It is implicit
that the process is linked
to the original
agreement.
State of Mexico
Governor and
Join 1
Secretary of the
State of Mexico
government
Join 1
SRH Secretary None 1
Table 19 Creation of WPR for the Lerma System
Sources: DOF, 19.08.1954; 23.09.1965; DOF, 16.12.1966; DOF, 20.12.1968; DOF, 03.10.1969.
170
5.9 Economic and Legal Appropriation of Water
The FD is entitled to extract up to 13 m
3
/s from the aquifers in Lerma Valley. Based on the
decrees of 1966 and 1968, the FD has legal WPR to extract 10-11 m
3
/second from the Lerma aquifers to
provide potable water to the FD, plus 2 m
3
/s to deliver water to metropolitan municipalities in MC. The
administration of the system is under SACMEX control and total extraction of water is shown in the
graph 13
Figure 12 Extraction of Water from Lerma System 2004-2014
Source: based on statistics provided by SACMEX by special request, 2015.
The management of the aquifers shows lower extraction from February to April and increasing
extractions from May to August; volumes extracted vary during the year, being adjusted to the need for
water. Thus, the administration of water extraction from the aquifers is related not only to the control and
administration of the aquifers themselves, but also to the operation of other systems of provision, and to
& ' ( ! " #
!!
!# !$ !% !& !' !( ! ! ! ! ! " ! #
171
external factors. For example, in 2009 the El Bosque and Villa Victoria dams were operating at a fill level
of one third of their capacity—as shown in the tables analyzed in the first section of this chapter. And the
above graph shows that it was precisely in May of 2009 when the extraction from the Lerma was
increased, and basically maintained at a high level of extraction not only until the end of the year, but
until April 2010. Those extractions were, in fact, the highest amounts extracted in the analyzed period.
In contrast, the minimum amount of water extracted was at the beginning of 2014, when the El
Bosque dam was over 80 percent full and the Villa Victoria was over 90 percent full. When these dams
reached volumes of 40 and 60 percent, respectively, in relation to their maximum capacity, SACMEX
increased the amount of water extracted from Lerma and only reduced it at the end of the year, as the
above graph shows.
Paradoxically, during that time, the Valle de Bravo dam maintained over 84 percent of water of
its capacity in August and 97 percent in October, when the maximum extractions in the second half of the
year occurred from Lerma aquifers This reinforces doubts of CONAGUA’s level of control of the quality
of water in that dam, or else on the criteria of managing Cutzamala only based on the amount of water in
the dams.
In any case, the process of maintaining high levels of water in Valle de Bravo dam and allowing
high extraction from the Lerma aquifers shows an apparent disassociation of the two systems. The process
underlines important aspects of the administration of water at a metropolitan scale. First, the
administration of the Cutzamala dams is under CONAGUA control, and although the FD has legal WPR
over 94 percent of the water of Villa Victoria dam, it cannot use that water unless CONAGUA decides to
deliver it. The solution for the FD has been compensating the lack of provision of water from
CONAGUA by increasing the use of water from other sources over which it has control, such as the
Lerma system.
The decrees that granted the FD the appropriation and use of water from the aquifers did not set
any regulation regarding the maximum amount of water extracted, or under what conditions the rate of
extraction may be adjusted.
172
Unregulated exploitation of the aquifers of Lerma is even more critical when we add conditions
that are affecting the system at operational level. For example, data from the previous graph comes from
SACMEX records at the El Venado water meter station. To make that data more realistic, in terms of real
amount of water extracted we need to take into account unauthorized water appropriation.
The situation of having unauthorized water users from the water infrastructure is not a recent
problem. The presence of free riders milking the system of water that provides water to the FD has been
endemic to Lerma system since the construction of that infrastructure in the 1960’s. At the beginning it
was the Government of the State of Mexico creating economic WPR; more recently several towns have
been appropriating water before it reaches the water meters at the El Venado water station. Thus, the
amount of water extracted from the aquifers is higher than the volumes reported. The situation is well
known at an operational level but no actor has the power to exclude unauthorized water users, nor do they
want to carry the political cost of enforcing the FD’s legal WPR.
Thus, when CONAGUA stops the extraction of water from the dams in the Cutzamala system,
there is an apparent increment of pumping water from the Lerma aquifers. The decision resonates with a
basic logic, but what is not clear are the criteria by which CONAGUA decides to keep water in Valle de
Bravo dam when the water table has been moving to a lower level in the Lerma Valley over the last 30
years.
The second important aspect of the Lerma administration is that, even though the provision of
water to the FD experienced significant variation, SACMEX has kept the rate flow of water more
constant in terms of the amount of water delivered water to the State of Mexico. This situation was quite
clear from 2004 to 2011.
173
Figure 13 Flow Rate of Water provision to the State of Mexico 2004-2014
Source: based on statistics provided by SACMEX by special request, 2015.
According to the Decree of 1968, the FD assumed the responsibility to deliver 2 m
3
/s to the State
of Mexico, but the FD has been delivering 1 m
3
/s only at the Tlalnepantla delivery point and none at the
other delivery point. The above graph shows the delivery of water, acknowledged by CAEM, which has
been under this 1 m
3
/s from March to May in every year analyzed; the critical months have been April
and May when SACMEX has never delivered water the water flow agreed—the reduction has been up to
23 percent and 10 percent, respectively.
On the other hand, the FD, from 2004 to 2011, at the beginning and at the end of the year,
SACMEX granted the provision of 1 m
3
/s to the State of Mexico (with rare exceptions), but during the
last three years the provision has been reduced and now this lower level has become permanent.
The reduction is not huge, but it creates a monthly deficit of 12,500 m
3
which, added to the
March-May deficits result in a yearly deficit of 112,644 m
3
. Under UN standards of water as a human
right, this amount would be sufficient for 20,800 people. Although the amount may be not significant in
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174
relation of the total amount of water extracted for the Lerma system, the situation unveils two important
conditions. First, it points out the need of clarifying under what conditions the FD is allowed to reduce the
water flow rate it provides to the State of Mexico, whether for three months out of the year or
permanently. This situation increases conflicts over water appropriation, especially under conditions of
water scarcity and competition, and is exacerbated by the fact that the water sources are within the State
of Mexico. Common sense indicates that, if this situation continues, the level of conflict will only
increase.
Coming back the to operational rules, SACMEX rarely exceeded a monthly extraction of 12 hm
3
,
only nine times out of the 132 months analyzed. Their reduction of water to Tlalnepantla to less than 1
m
3
/s, on the other hand, happened 42 percent of the time (March through May, plus the permanent
reduction starting at the end of 2011). This leads us to the second important conclusion about Lerma
system management: the stresses on appropriation of water and water distribution are increasing. But the
decisions to increase extraction and to reduce the distribution among water appropriators have been left to
a the discretional power of the system administrator.
The variation of water extraction and water distribution can be exemplified by the historical
production of potable water and distribution between the FD and State of Mexico, specifically in the
months of May and October, as graphs 15a and 15b shows.
175
Figure 14 Water Distribution From Lerma System
Source: Based on statistics provided by SACMEX and CAEM by special request, 2015.
Both graphs show that, independently of the amount of water produced by SACMEX, the amount
of water delivered at Tlalnepantla municipality has experienced little variation; it has stayed near 2 hm
3
per month—May of 2012 is the only case in which CAEM acknowledged receiving noticeably more, 3.5
hm
3
.
Another way to read the graphs is that the distribution of water has been kept disjointed from the
total amount of water produced. This situation is important because the accords for water appropriation
and water distribution were signed in the 1960’s—when the State of Mexico had less population that the
FD—and, even though the population ratio reversed in later decades, the distribution from the Lerma
system does not reflect those changes.
What the extractions show is that the legal limits for extractions are unrealistic, due to the process
of subsidence induced in the Lerma basin and the lower water table in the Lerma Valley. In many cases
the legal limits have been replaced by operational rules of extraction. The gaps between operational limits
and legal WPR are huge and remain to be solved. Thus, the FD has not used its full legal WPR, and the
monthly extractions from the Lerma system have been consistently less than 12 hm
3
. Moreover, the flow
rate for water extraction, according to the accords of 1966 and 1968, can be up to 11 m
3
/s, but in practice
Water Distribution from Lerma
System (May)
Water Distribution from Lerma
System: October
176
it has been limited to 4.1 m
3
/s. Thus, in order to control the extractions from Lerma, a first step is to solve
the gap between the legal WPR and the economic WPR. Since the appropriation and distribution process
has been in place for a decade, the operational rules may work as a standard, replacing the WPR. The
rules should not be constrained to technical areas but must be public and tied to a system of institutional
incentives.
Based on the gaps already analyzed regarding the variation of water extracted and delivered to the
State of Mexico, it is possible to identify certain uniformities in the amount of water extracted from the
Lerma aquifers. In practice, the FD has been extracting a monthly amount of 7.40 hm
3
, up to 13.19 hm
3
.
Even though the extraction has important monthly variations, SACMEX has kept the flow rate around 4.1
m
3
/s, with a median of 10.81 hm
3
of water extracted in the period analyzed. Table 20 shows the median
values of monthly extraction of water and volumes of water received by the State of Mexico in the
municipality of Tlalnepantla—acknowledged as volumes of water provided from the Lerma System.
The last row shows the percentage of water delivered to CAEM compared to the total amount of
water extracted. SACMEX has been delivering to CAEM between 23 percent and 27.9 percent of the total
amount of water extracted from Lerma system.
Table 20 Volumes of Water from the Lerma System 2004-2014
Source: based on statistics provided by SACMEX and CAEM by special request, 2015
Median FD Edo_Mex
Percentage
Edomex/FD
Jan 10.96 2.68 24.44
Feb 9.55 2.66 27.90
Mar 8.76 2.42 27.62
Apr 9.29 2.20 23.72
May 11.12 2.57 23.12
June 10.83 2.58 23.84
July 10.95 2.67 24.34
Aug 10.91 2.68 24.54
Sept 10.46 2.59 24.79
Oct 10.80 2.66 24.66
Nov 10.61 2.51 23.61
Dec 10.84 2.56 23.60
177
Since the above distribution has overruled the legal WPR granted in the 1960’s, and the FD and
CAEM have been sharing water based on those apportionments and distribution of water in the last eleven
years, a possible solution to pair legal WPR with economic appropriation of water is to formalize those
operational rules as new legal WPR. This will help not only to set the limits for amount of water produced
and distributed, but also in setting rules and limiting monthly variations of water extraction and water
distribution. This way, a process of shared responsibility for dealing with the situation of scarcity and
appropriation of water, with variation within time, will affect both CAEM and SACMEX. Moreover,
setting standards from operational rules may represent an option for water appropriation in environments
of contested legal WPR and high levels of conflict for water distribution.
5.9.1 The appropriation of groundwater
For the purpose of identifying the institutional conditions that hamper an adequate management
of groundwater appropriation and distribution, a different approach is needed, for several reasons. First, it
is recognized that the aquifers of the valley of Mexico are overexploited. Since 2009 CNA has used the
Relative Water Stress Index (RWSI) to measure the level of stress of water sources—defined as the
quotient of water used divided by the available water, multiplied by 100. If the quotient is greater than 40
percent there is a high level of stress. In 2009 MC’s RWSI was 182 percent and classified as very high; in
2013 the water stress remained very high (Semarnat, 2009: 65; 2013: 59). Moreover, the annual balance
of the Valley of Mexico aquifer, recharged water minus pumped water, shows a deficit of 713.6 hm
3
(GDF, 2012:40).
Second, it is evident that the legal WPR granted do not help the process of controlling
overexploitation of the aquifers, since the granted volumes of extraction surpass the recharge capacity of
the aquifers. A good example is the WPR for groundwater exploitation granted to the FD.
In the case of the FD the WPR comes from the CONAGUA-FD Agreement of 1996. The
Agreement granted the FD an annual extraction of 780 hm
3
, for public-urban use, from three main
aquifers: 630.72 hm
3
from two aquifers in the MC Metropolitan Area, and 149.80 hm
3
from aquifers in
178
the Valley of Toluca. In contrast, in 2012 the House of Representatives Audit, with data from 2003 to
2012, calculated that the annual availability of groundwater available in the hydrologic region XIII, where
these three aquifers are located, was 426.7 hm
3
—more than 350 hm
3
less than the amount granted to the
FD.
According to the FD records the amount of water extracted in the MC metropolitan area did not
exceed the legal WPR; in fact the FD only used 72.7-77.2 percent of its legal WPR. During this entire
period, however, the FD alone extracted more than the amount available to recharge the aquifers.
Table 21 Extraction of groundwater in the FD 2004-2014
Source: based on statistics provided by SACMEX by Special request. Volumes in hm
3
The conditions under which CONAGUA controls the extraction of water is linked to their control
of the wells. The control of wells seems to have more significance than the volumes of water measured
and reported by the direct water user for the purpose of identifying the institutional conditions that
hamper adequate metropolitan water management in MC.
5.9.2 The Control of Wells
In August of 1995, CONAGUA transferred the direct control of functioning wells to the FD and
State of Mexico governments. In the case of the FD, the transference of wells goes back to 1985, when
CONAGUA transferred the control of 48 wells to the FD, with extension if approved by mutual
Year Legal WPR
Total
Extraction
Remaining
WPR
2004 630.72 485.37 23.05
2005 630.72 477.08 24.36
2006 630.72 468.38 25.74
2007 630.72 472.91 25.02
2008 630.72 482.18 23.55
2009 630.72 482.21 23.55
2010 630.72 482.06 23.57
2011 630.72 486.81 22.82
2012 630.72 473.23 24.97
2013 630.72 461.00 26.91
2014 630.72 458.68 27.28
179
agreement. The agreements were renewed and the control of more wells was transferred, to finally grant
transference of control of 84 wells total in 1995.
The rationale for the transference of control of wells was that two operational entities were
controlling wells in the southern part of the FD, and under similar operational rules. Thus, CONAGUA
and the FD asserted that in order to rationalize (in the sense of improving the efficiency through a process
of reorganizing the system), the wells would be better managed under only one operative water agency. In
this case, control was transferred to the local agency, while CONAGUA retained the responsibility of
controlling the process of extraction (CNA-FD, 1995).
As part of the agreement, CONAGUA was in charge of defining the policies for the functioning
of the wells (based on systematized surveillances of quantitative and qualitative characteristics of the
operation of the wells—for this reason, CONAGUA retained the privilege of verifying the extraction and
water quality at any time). Transfer of control should be in effect within 30 days after the agreement was
signed. Interestingly enough, the original agreement, signed and legally validated, has no specific date,
but just stated the year. Anyway, the period granted was valid until December 3, 1997.
The FD was obliged to operate the wells under the water flow limits set by CONAGUA, and to
provide adequate maintenance to return the wells in good condition at the end of the period granted. As
discussed below, in the case of the transference of the wells to the State of Mexico, operation of the wells
included all the infrastructure needed to provide bulk water to the FD.
The cost of operation and maintenance was paid by the FD government. Additionally, the FD was
allowed to modify the wells’ hydraulic infrastructure, upon receiving CONAGUA’s consent (except in
cases of operational emergency).
As part of the accord, the FD agreed not to exceed the water flow rate authorized by CONAGUA.
In order to ensure that the extraction would not exceed these limits, the transferred wells had water
meters, and the water consumption was measured by a bipartite reading of the water meters at the end of
each month. The verification of the water meters, the cosigners agreed, would include not only the wells
180
covered by the agreement by also all other wells operated by the FD, whether they were located within
the territorial jurisdiction of the FD or not.
Transference of the well could be ended under either of two conditions. First, the standard for
water extraction and quality of water obtained were tied to the official Mexican National Standards
(NOM); violating these standards could terminate the extraction of water from the well or require a
process to improve the quality of water, paid by the FD. Second, the wells could be relocated when they
became damaged or the water table level decreased. CONAGUA would consent to the relocation of wells,
as long as the pumping still did not exceed the authorized amount of water from the aquifer.
Moreover, the parties agreed that, in cases where water from other sources granted the necessary
water provision to the FD, the wells would be out of service—temporarily or permanently. The agreement
acknowledged and embraced the FD “Program for Water Efficiency”, which became part of it.
The distribution of transferred wells by borough in the FD were: 37 wells in Tlalpan, 23 in
Coyoacan, 12 in Iztapalapa, 6 in Magdalena Contreras, 3 in A. Obregón, and 3 in Xochimilco. Through
these transferences, CONAGUA granted the FD the control of extraction of 7.366 m
3
/s, or 232.3
hm
3
/year.
In the case of the state of Mexico, the control of wells, with pumps, electric substations, and all
the infrastructure for delivery of bulk water, including aqueducts, were granted to the State government
until December 31
st
, 1997, with the possibility of granting extensions of time if demanded. In cases where
wells were providing water for a single municipality or water agency, the control should be transferred to
them. In the case of the State of Mexico, CONAGUA transferred the control of 68 wells, with a
production of 3.476 m
3
/s, equivalent to 109.6 hm
3
per year. 37 wells were located in the cluster Aislados
Norte, 13 in Ramal Atlamica, and 20 in the cluster Aislados Sur. The physical transference occurred
between September and November of 1995, but only two wells were transferred before May of 1997
(Huehuetoca and Tlatel Xochitenco) (CNA-State of Mexico, 1995).
181
5.9.3 What the Agreements Left Out
In 1996 the control of wells granted by the agreement of 1995 was included in water permit
5DFE100309/26HMSG96, which extended the FD control of the 84 wells for 20 years. Effective
transference of control of the wells—including physical control—from CONAGUA to the FD
government was a long process that occurred between February of 1986 and July of 1998; the agreement
stated this to be done in the next 30 days after the agreement was signed (CNA-FD, 1995).
On the one hand, dates before the signing of the agreement may indicate that that the transference
of control had already occurred before the agreement was signed, which may be linked to the renewal of
transferences granted by the agreement of 1985, or just legal acknowledgement of de facto control of
wells. On the other hand, the transference of control over wells that took until 1998 can be linked to the
endings of previous accords, renewed under the conditions established by the agreement of 1996. But the
clarification of these conditions requires a more detailed analysis of the data and to keep track of the
changes over time. What is clear is that the process of transference denotes the need for a neutral actor to
enforce administrative agreements with CONAGUA, or at least the need for an effective system for
accountability.
Differently from the previous agreements, the 1995 agreement, in its ninth clause, demanded the
administration of the wells to be based on official standards which, in the case of water administration,
include a system of monitoring and implementation under CONAGUA attributions and duties. Thus, the
national norms, in force since 1992, implicitly imposed a system of penalties required by national
standards and laws.
In theory, wells should comply with norms of quality control, regarding their construction,
maintenance and operation (NOM-004-CNA-1996, NOM-003-CNA-1996, NOM-179-SSA1-1998). The
norm NOM-004 stipulates that CONAGUA should be responsible for monitoring and enforcing the norm.
NOM-004 also assigned CONAGUA the responsibility to act as a coordinator among orders of
government for the implementation of the norms.
182
Moreover, the violation of NOM-004 was linked to sanctions defined by the Metrology and
Standards National Law (MSNL), also in operation since 1992. This law imposes penalty fees, temporary
and permanent suspensions, jail up to 36 hours, suspension of permits, approval and registration, and also
the suspension of the official recognition of complying with the norms and specification required (MSNL,
2009: Art.3, 112).
The MSNL states the following penalties for violations to the law itself. The values are referred
to the Official Minimum Income (OMI) for the FD.
Penalty Fees Instituted by the Metrology and Standards National Law
20-3,000 OMI 500-8,000 OMI 5,000 -20,000 OMI Recidivism
• Denying
information to
public offices,
• Not having legal
approval for
comply with
official standards
• Violation of a
Standard
• To modify processes
without official
approval
• Not suspending the
service when provided
under standards
• using the approval for
different purposes
from those approved
• Putting at risk
health and
security of people,
animals, and
plants
• Double fine
respect to the
previous fine, and
without exceeding
40,000.
• Recidivism means
repeated violation
within two years
Table 22 Penalty Fees Instituted by the MSNL
Source: MSNL, 2009, Art. 3, 40, 57, 109, 112-A, 113
In order to impose sanctions and penalties, the law requires a formal visitation or inspection, and
a record that proves the inspection. The enforcement of penalties and sanctions are limited by a) the
intention of the action, rather than the action itself; and b) the economic condition of the infractor.
In practice, CONAGUA runs the inspections and legal framework in a different way. The
requirement for relocating well 3B in Coyoacán is not atypical and will serve as an example of the
implementation of the legal framework aimed to regulate the appropriation of groundwater in MC.
SACMEX required the relocation of the well Xotepingo No. 3B, located in the borough of
Coyoacán, which, when in operation, was producing 630,720 m
3
/year. The relocation demanded
compliance with the norm NOM-003-CNA-1996, and CONAGUA advised to perform a visitation to
verify SACMEX compliance with the LAN and its regulations. The results of the visitation were: a) the
well 3B had been out of operation for the last five years; b) a well in operation in Iztapalapa borough,
183
located at the corner of Sur 69 and Manuel Gamis Streets, was part of the water permit of 1996; c) this
well was in operation, although the depth and diameter of perforation were not verified during the
visitation, and more importantly the well did not have a water meter; d) the characteristics of the pump
were not registered but it worked 24 hours a day and the production of water was for urban-public use
(CONAGUA, memo BOO.R01.04.01.670, of 04.02.2008). According to the LAN, water for public use is
water for human consumption provided through municipal water networks (LAN, Art 3:LX).
Although a visitation was performed, with the data generated it is not possible to know what
volume of water was actually pumped; thus, water appropriation was left under the control of the water
consumer, which creates unreliable information and supports the extension of the overexploitation of the
aquifers.
This situation contravenes the responsibilities that the LAN imposes on both parties, the water
users—in this case SACMEX—and CONAGUA. The situation depicts the lack of control of groundwater
exploitation in MC for two main reasons. First, the water permits are granted but the requirement of
setting water meters is not always enforced. Metering is required, as mentioned earlier in this chapter, in
order to grant a permit for groundwater exploitation. The LAN, in particular, demands that water meters
should be installed no later than 45 days after the water permit has been granted (Art. 29), and the water
user should not extract more water than is allowed.
Additionally, the legal basis under which CONAGUA transferred the control of wells to the FD
and the State of Mexico in 1995 clearly stated that CONAGUA and the administrator of the wells should
have monthly reading of water meters, not only from the wells granted in the agreements but for all the
wells; nevertheless, the well located at the corner of Sur 69 and Manuel Gamis Streets did not have a
water meter. Thus, CONAGUA failed in its responsibilities—which leads us back to the need for
incentives and accountability systems for CONAGUA to fulfill its duties.
The OCAVM internal communication advising to perform the visitation indicates occasional
visits, while the law obliges them to perform the visitation. In the first case the well was not in operation
for five years, in the second case the well did not comply with the LAN requirements. The norm NOM-
184
003-CNA-1996 states that verification should be performed regularly, and the location of water metered
must be in accordance with NOM-012-SCFI. The demonstrated lack of responsibility links several
instances.
First, CONAGUA did not fulfill its responsibilities, by neither enforcing the mandatory
requirements for granting water permits nor enforcing the agreement of 1995, by which the control and
administration of wells were transferred to the governments of the FD and the State of Mexico. Second,
the regional representation of CONAGUA—the OCAVM—failed in its duties by not performing the
regular visitations mandated by the LAN, NOM-003-CNA-1996, and enforcing the penalties stated by the
MSNL. Third, the Basin Committee and basin organization failed in their duty of promoting
comprehensive water management and preserving water in the basin, and to keep an accurate system of
monitoring and information about water availability.
185
Chapter 6: Conclusions and Recommendations
The crisis of water in MC is a euphemism to depict a misunderstood constructed city-sources-of-
water relationship, built over a period of five centuries of continuing effort.
Water apportionment from regional sources of water and water distribution amongst SACMEX
and CAEM is based on CONAGUA’s discretional power, rather than on legal WPR.
There are three main factors that hamper legal WPR in controlling apportionment of regional
water sources and promoting adequate distribution of water at a metropolitan level: (1) water
apportionment and distribution are the results of centralized decisions rather than the of binding-
enforceable decisions among relevant water claimants, (2) apportionment decisions grant more water than
the physical system is able to provide, and (3) WPR are too general and contradictory, promoting
discretional decisions.
In order to make legal WPR work, the needed actions include: to provide legitimacy by making
economic WPR reinforce legal WPR (in other words, to make informal rules reinforce legal rules), by
eliminating the ambiguities and making more specific the legal framework that defines the legal WPR,
and by explicitly including an actor with power of exclusion tied to a system of incentives and
accountability to enforce that power.
6.1 Conclusions
The case of water provision to MC, as in other cases of use of common goods, has become a case
of a tragedy of unmanaged commons. Under the current conditions of water administration, water
provision to MC is a process with high levels of uncertainty regarding physical appropriation of water and
distribution among the operative organizations in borough and metropolitan municipalities.
186
The MC water system challenges policy makers to design a system that forces power to be a
check to power—as Montesquieu advises—and that creates incentives for water appropriators to adjust
their behavior to follow fair legal WPR. The challenge also demands strategic design to make individuals
take full account of the consequences of their decisions or the lack thereof.
Taking WPR as a means to help overcome the turmoil bolstered by the current inadequate
regional management of water only makes sense, from the legal perspective, when there are adequate
incentives to prod actors to behave within the expected margins defined by the enacted rules. In order to
achieve that goal, the first step is to help destroy the myths of the crisis of water, and of the appearance of
WPR. The next steps are to promote a better understanding of the problem, and to make this information
available to citizens.
Looking first at the myth of the crisis of water in MC, several scholars and practitioners argue
that it began over a variety of dates between 1940 and 1990. The research presented in Chapter 3 shows
that the crisis of water is a euphemism, going back seven centuries in time, for inadequate management of
water in MC and nearby basins. It started when a civilization moved away from creating a symbiotic
relationship with the lacustrine system within an endorheic basin.
The crisis of water in MC is not caused by not having enough water; it has been a problem of
scarcity founded on a lack of vision regarding how to adequately manage a lacustrine system and to use
external sources of water. This essentially leads to the basic problem of how to properly manage a
common good, a problem that, in this case, goes back five centuries.
The Factors that Foster Unmanaged Water
The analyses performed show that the main factors that promote, not a crisis of water, but a
tragedy of unmanaged commons, include the creation of weak legal WPR. They are weak because in
several cases the legal WPR grant more water than the water system can provide, and also because the
presidential and centralized top-down decisions granted benefits that were not rights, but only privileges
that have been challenged in local arenas. The presidential decisions created flimsy WPR that carried the
187
implicit idea that those WPR could be effective by simply announcing them, rather than being created
from fair processes and complemented with effective systems for monitoring and incentives for their
implementation.
A second factor is related to unilateral control of infrastructure and unclear rules for its
administration. Tables in chapter five show that CONAGUA’s absolute control of the amount of water
stored in dams located in the states from which water is taken left no room for local governments to
influence the direct control of water apportionment. While the hydraulic infrastructure remains under
federal control, water agencies from the states of México and Michoacán have no control over any
volumes of water in dams in their states that provide water to MC, but they act as direct water claimants
with rising demands for water; the volume of water in dams located inside (or nearly inside) the FD, and
controlled by the FD, is insignificant compared to the amount of water controlled by CONAGUA.
Unilateral control of hydraulic infrastructure is not bad in itself, but it is not desirable when it is
used as a foundation for discretionary regional distribution of water. Analysis of the extraction of water
from the three most important dams in the Cutzamala System, which are under CONAGUA’s
administration, shows a discretional allocation of water. Since legal apportionments of water exceed the
total capacity of the dams, the extractions have been left to CONAGUA’s discretional decisions to satisfy
the demands for water based on water claimants’ bargaining power; this constitutes the third factor.
The fourth factor reaches discretionary management of aquifers. This management is bolstered
by the lack of clear rules for water administration. Analyses of volumes of water extracted from the
Lerma aquifers over 11 years show a high variation in amount of water extracted. As explained in chapter
five, the decrees defined the minimum amount of water to be extracted from the aquifers but did not
define the maximum. In practice, the minimum volumes became maximum volumes to be extracted, but
the legal extractions do not lead to, nor are they reinforced by, economic appropriation, since there is no
system of incentives tied to the current agreements between CONAGUA and SACMEX. Thus, as in the
case of other water permits, discretion is given to the water system administrator regarding the amount of
water extracted and water distribution once the water permit has been granted.
188
The fifth factor is the discretional extraction of water from the dams, which have promoted
discretional regional distribution of water in MC. Table 10 in chapter five shows two main types of
irregular extraction from the Cutzamala dams. One case is when CONAGUA delivers less water than the
volume extracted from the dams, as in the case of January 2005. The difference of volumes in that month
was 23%, when differences in other months and in other years were less than 2%. The difference between
water extracted and water delivered cannot be fully justified as loss due to evaporation or leaks in the
conduction lines, the usual explanation for the variation of water provided from the Cutzamala dams and
delivered to MC. Clearly, CONAGUA is providing water to other water users who are not part of the
Cutzamala’s legal water apportionment, and that distribution of water is part of the explanation of the
monthly variation of volumes of water provided to MC. The discretional apportionment of water grants a
benefit to water claimants but it is not clear who those beneficiaries are and what kind of responsibilities
those water users have in exchange for the benefit received.
The second case of irregular extractions shown in table 10 is when the volumes of water
extracted from the dams are smaller than the volumes delivered to the main agencies, as in the case of
July 2010. In that month, the extraction was 19.80 hm
3
, but CONAGUA delivered 94% more water to
SACMEX and CAEM, which means that water stress was transferred to other water systems and water
users. This fact it is not recognized by CONAGUA, who in official reports keeps asserting that the
Cutzamala system operates based on water available in the dams.
A sixth important factor is that the discretional decisions on water apportionment are reinforcing
unequal metropolitan distribution of water between the FD and the metropolitan municipalities. The
current apportionments of water were defined at the beginning of the 1970’s, and modified over the next
two decades. In the case of water provided from the Cutzamala system, the volumes have been adjusted
annually, but the legal apportionments still are based upon the decrees of 1972 and 1982, which, although
imprecise and vague, have not been updated. Thus, the decrees have been relegated to be indicative rather
than limitative, and their use and value as a regulatory framework has become highly questionable. In the
case of the Lerma system, the decrees that define the legal apportionment between the FD and the
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metropolitan municipalities are also vague. They have been adjusted in practice and have created
operational rules that contravene the legal apportionment of water. In both cases, administration of the
system has become de facto total appropriation of sources of water, which have promoted the discretional
apportionment of water from regional hydraulic infrastructure and its discretional metropolitan
distribution in two clear tendencies: delivering more water than the legal amount of water granted, as in
the case of the FD, and delivering less water than the legal amount of water granted, as in the case of the
metropolitan municipalities. In between, water agencies differ in volume of water delivered and volumes
of water received; the volumes of water SACMEX and CAEM acknowledge to have received differ form
the volumes of water CONAGUA claims to have delivered to them.
Additionally, although there are annual accords between CONAGUA-SACMEX and between
CONAGUA-CAEM to adjust the amount of water to be delivered, based on surface water availability,
comparison of memoranda between water agencies and analysis of statistics of volumes of water
delivered and received show that reductions in the amount of water delivered have not only been the
result of unilateral decisions, but the official reductions CONAGUA and the OCAVM imposed have not
been always honored—in practice, the reductions have been even greater. The process has created a
climate of distrust and controversy, in which the water authorities have lost credibility and the moral force
to define rules for water management at a metropolitan level, which has become the seventh important
factor hindering adequate metropolitan administration of water.
The eighth important factor that also hinders fair metropolitan water distribution, as well as the
identification of actors with benefits and responsibilities, is the lack of definition of MC itself. The
Presidential decree of 1972 defined the apportionment of water from the Cutzamala dams and the
distribution of water to MC, but MC did not legally exist yet. Distribution of water has been performed
under discretional bases to a mobile target called MC, and the distribution of water to what must be
understood as MC is still uncertain.
Another important gap linked to the lack of definition of MC is that the allocation of water
between the FD and the metropolitan municipalities, according to the recitals of the decrees, was defined
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based on population. In the 1970’s, the FD had larger population than the metropolitan municipalities of
the State of Mexico; with time the demographics were reversed, although the allocation of water has not
been proportionally adjusted. Thus, the lack of definition of MC has bolstered two situations. First, a
discretional allocation of water to the FD and to an undefined number of metropolitan municipalities
within a fuzzy area named MC, and second, an unfair distribution of water between the FD and the
metropolitan municipalities of the State of Mexico, based on the demographic rearrangement experienced
in the last forty-five years. These two situations have led to the current processes of water apportionment
and distribution, which contravene what is mandated by the Constitution, the LAN, and the Ecological
Balance and Environmental Protection General Law: to grant the right of water as a human right, to
assure fair and equitable distribution of water, and to use water under principles of sustainability.
The Constitution and water-related laws aim to protect and preserve water as a common good and
open to all under the principles of justice and fairness, and mandate to protect the water that belongs to
the Nation. Although, in order to achieve those goals, the legal framework delegates the responsibility to
protect and enforce those principles and values to the President and the Federal agencies in charge of
implementation of the regulatory framework, in practice the administration of water has become a set of
operational rules that contravenes the legal framework and violates the values and principles that those
agencies are intended to respect, protect, and fulfill. Under the current water administration, the federal
and local governments are unlikely to grant water either as a human right as the Constitution mandates, or
as the UN agreement of water as a human right requires, unless they are able to overcome basic issues of
water mismanagement, mainly related with problems of legitimacy, equity, and accountability. Table 18
shows the main obstacles to fulfilling water as a human right while considering the three most important
sources of water of MC. An X in the table means failing the mandate from the Constitution and the UN
accord—of which Mexico is a cosigner.
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System
Mandate
Cutzamala Lerma Aquifers Main obstacles
Government
in charge
Federal FD Combined Act as independent actors on managing water as a
common good, once gaining control over a water
source
To respect X X X Interfere with the enjoyment of the right to water, fails
to provide adjudicative and enforcement mechanisms
To protect X X X Inadequate Legislation, nor adequate monitoring, nor
preventing other actors for interfering
To fulfill X X X Fails the principle of redistribution, and to provide
sufficient and safe water in a permanent bases
Table 23 Main Obstacles for Granting Water as a Human Right
Source: Author
Perhaps the most important factor that promotes the mismanagement of water at a metropolitan
level in MC is the lack of enforcement of the power of exclusion that the legal framework delegat es to
CONAGUA and its regional representation, the OCAVM. As explained in chapter one, the power of
exclusion is a mechanism to grant access to a common good under principles of redistribution and
fairness, mainly in environments where owners try to maximize the present value of their PR, and also in
environments where communal property is under permanent attack from economists and investors who
champion the conversion of communal property into private property. But this power of exclusion has
seldom been exercised in the case of MC water administration. The reasons for its lack of implementation
are not self-evident but it is important to note that scholars assert that the costs of exclusion are usually
high, due to the exclusion process itself and to governance costs. In the case of MC, it is not clear why the
water agencies have not used social norms that, in other places, have proved to be an effective low-cost
mechanism, rather than concentrating on specialized organizations and centralized enforcement of norms,
which in MC’s case have proved to be highly ineffective.
A plausible explanation is that, even though the LAN and the Ecological Balance and
Environmental Protection General Law empower the authorities of water to invoke the support and
assistance of federal, state, and municipal governments for the use of public force to make the law prevail
over economic and de facto appropriation of water, the apportionment and distribution of water have been
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contested under the grounds of being unfair rather than illegal. Although the apportionments have been
accepted as legal, they have not been accepted as just; therefore, the highly valuable power of exclusion,
rarely granted in the management of common goods, has been a mere dry piece of paper in the hands of
CONAGUA and the OCAVM.
In any case, the power of exclusion has become a rhetorical tool, rather than an effective means to
reinforce adequate metropolitan water governance. The legal bases to reverse the inadequate management
of water are set, but the mechanisms and the agent or agents that will trigger the change are not clear. This
is particularly true when the interaction of the aforementioned factors increases the complexity of the
problem. More complex problems are created when, as part of the water administration, more agents
outside of the public administration are included—mainly those who constantly push for privatization of a
common good that, paradoxically, is meant to assure a human right. The following table summarizes the
four most important problems coming from the interaction of the aforementioned factors that promote the
mismanagement of water in MC.
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Problem Source Solutions and Actions
Needed
Lack of legitimacy Centralized decisions: Presidential decrees, 1:1
CONAGUA agreements, and CONAGUA unilateral
decisions on granting legal WPR
Add moral force to legal
WPR
Lack of equality Vague and contradictory Legal WPR, anachronistic
legal WPR do not recognize current water claimants,
water authorities are part and judge on water
controversies, and there are not options for fair
alternative dispute resolution
Add collective decision
and clear rules that apply
to all actors
Lack of
accountability
Decrees and accords without system of incentives,
Conagua as ultimate water authority does not have
without any authority over it, it also acts as water
agency, but without following the rules they suppose to
respect, protect, and fulfill.
Water permits are not tied to current regulatory
framework but work as administrative accord s.
Control the controller and
exercise power of
exclusion
Lack of
metropolitan
administration of
water
Lack of definition of MC and actors with benefits and
responsibilities. Lack of options for alternate
participation on regional decision for water
management, lack of comprehensive water management
where subsystems are treated independently
Create a comprehensive
water managements and a
neutral entity free from
CONAGUA control
Table 24 Main problems and solutions
Source: Author
6.2 Recommendations
6.2.1 On Legitimacy
Adding moral force to the legal WPR can reverse the lack of legitimacy of the current legal WPR.
The decision requires defining in what cases operational rules must overcome legal rules; the effort
demands a collective decision with the concurrence of effective claimants of bulk water from the systems
that provide water to MC. The process is expected to be complex and costly, while aligning the main
actors in the same direction. While awaiting that decision, at least two situations should be corrected:
solving the contradictions of current legal WPR, and solving the vagueness and limitations of presidential
decisions on water apportionment.
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Solving the undeniable contradictions between legal WPR and physical capacity of the
infrastructure demands the creation of new WPR. They must be limited to the amount of water that the
physical system is able to provide in order to overcome discretional power that hampers the use of WPR
as the base for effective water apportionment and distribution. In particular the new WPR must include:
a) In the case of the Cutzamala system, the new WPR must reverse the granted legal extractions
that exceed the storage capacity of the dams; b) the extraction of water from dams must legally recognize
other water claimants and water users that currently are reducing the amount of water available to provide
potable water to MC; c) CONAGUA and the OCAVM must acknowledge the sources of water that
occasionally became tributaries of water to the Cutzamala system, to which water stress has been
transferred, and make them part of the accords and agreements to provide water to MC, to be legally
subject to benefits and penalties; and d) as part of the information concerning water availability for
provision of potable water to MC, CONAGUA must specify the not nominal capacity of the dams, but
their effective storage capacity, which is the nominal capacity minus the minimum amount of water to be
kept at all times in the dams, and minus the amount of water granted to users and uses of water other than
the provision of potable water to MC.
Moreover, the new legal WPR must include a program of extraction of water from the dams, tied
to a system of prioritization of uses of water and identifying volumes of water granted to actors with legal
WPR. The program must include tolerances of the variations of monthly extractions allowed, mainly
when the regime of extractions is not tied to special conditions of water scarcity and extended droughts.
The minimum amounts of water to be kept in dams must be clearly justified and correlated to uses of
water and water claimants authorized to obtain water from the dams, especially when the dams are
reaching or are under the minimum amount of water they are supposed to keep.
The above recommendations aim to fix the problems of legally granting more water than the
system is physically available to provide, eliminating CONAGUA’s discretional decisions, such as
allocating water at a regional level based on the bargaining power of water claimants, extracting higher
amounts of water from the dam than the legal extractions allow, benefiting unknown water users, or
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transferring the deficits of water from the dams to unknown sources of water—while concealing water
stress transferred to water users who are not part of the accords to provide potable water to MC.
In the case of the Lerma system, the privileges of using water from the aquifers in Lerma must be
formally modified and transformed into WPR. The WPR must include both explicit identification of
actors with water benefits and clear definition of the maximum amounts of water allowed to be extracted
from the aquifers.
The first step is to identify the real volume of water extracted from the aquifers. In order to do so,
it is indispensable to delimit the Lerma area. The accords of 1966 and 1968 granted the appropriation of
water from the Lerma River and set the José A. Alzate dam as the northern border for the extractions, but
at the same time, the decrees authorized the FD to define the location of the wells and the amount of
water to be extracted. Thus, the unclear regulation was indicative rather than restrictive, and the
construction of wells was finally located up to 30 km (19 miles) north of the dam. The clear definition of
the system boundaries must be legally recognized in order to define the actors with rights of usufructuary
uses of water, who should be subject to penalties when failing their responsibilities regarding preservation
of the aquifers.
This definition of the areas will help to reverse the imposed presidential decisions granting the
FD the privilege of using water from the Lerma aquifers with no responsibilities attached to that privilege.
Although the initial decree defined geographical borders of limitation, a later decree also empowered the
FD to select the points of extraction of groundwater—and only then to let the SRH and state of Mexico
Government know about its location and the volume of water extracted. In other words, the delimitation
of the system source will help to overcome the vagueness and contradiction of the decrees that have
facilitated the economic appropriation of water, as well as discretionary decisions that have overruled
previous decrees that aimed to preserve the aquifers in the Lerma area. The delimitation will be especially
useful regarding the relocation or substitution of wells when they have reached the ends of their useful
lives. The definition of the resource system is a basic need to be fulfilled in order to counteract processes
of physical appropriation that, up to now, have helped the whole system of regulation to fail.
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The second basic step is the creation of WPR, which must include: a) rectification of the
Presidential decrees and accords and definition of the maximum amount of water that the FD is allowed
to acquire, as well as variations of the monthly and yearly extractions; b) including the maximum
variation of water extractions in a comprehensive water management approach, with correlated use of
water from surface and groundwater sources, and whether they are under federal, state, or municipal
water agencies’ control; in that sense, extractions from Lerma must be tied to variations of volumes of
water provided from Cutzamala and groundwater provided by CONAGUA, in order to curb the tendency
of water administrators controlling the systems to treat each as if it were isolated and independent from
the performance of the rest of the regional sources of water; c) the conditions under which the FD is
authorized to reduce the legal provision of water to metropolitan municipalities; d) the conditions by
which the extraction of water should be suspended, including accurate definitions of terms and use of
specific metrics for water use while avoiding terms as “excessive lowering of the water table” that were
included in the original decrees still in use, but are useless for practical purposes; and e) a system of
incentives tied to the regimes of extractions and to water-related legislation to prod the WPR cosigners to
fulfill their duties and expected behavior.
Since communities located adjacent to the wells and along the water system have contested the
FD’s legal WPR through physical appropriation, and since, while being legal, the WPR are seen to be
illegitimate and unfair, it is necessary to change the management of the system from being a black box to
being managed under clear rules for water appropriation and water distribution, and to make it mandatory
for all actors involved.
The process requires creating fair methods to legalize the de facto appropriations of water along
the water system and distribution lines, because the water SACMEX reports as extracted from the
aquifers is only the amount of water used by SACMEX and does not include de facto volumes obtained
by the communities. This usage is, in fact, affecting the hydraulic performance of the aquifers and the
regional hydraulic equilibrium. The recommendation is to create a detailed census of the illegal
appropriation of water along the hydraulic infrastructure, especially along the distribution lines, and
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legalize those current de facto appropriations of water. Critical thinkers resonating with arguments
coming from defenders of orthodox legal procedures may oppose the legalization of illegal acts, but the
rationale for the proposal is based on three main circumstances: first, de facto appropriation of water is
already affecting the aquifers; second, water belongs to the Nation, of which population is one of the three
cornerstones, and population in the region from where water is taken to provide water to MC is already
appropriating water for human consumption; and third, voiding or cancelling current illegal appropriation
will raise social conflicts no water agency or government is willing to encounter. Moreover, those illegal
appropriations of water must be legalized because illegal acts that counteract governmental decisions
perceived as unfair cannot be tied to legal responsibilities, whether financial or regarding the preservation
of the aquifers, if they are kept as illegal. Once the legal process is achieved, in order to deter new illegal
water takings, the communities must be delegated responsibilities for monitoring and control. In the case
of the Lerma system, implementing the 9
th
clause of the agreement SRH-DF of 1966 will be useful. In
that clause the FD agreed to preferentially hire local workers for the maintenance and operation of the
Lerma system.
The management of common goods in the hands of local people has proven to be more effective
in controlling access to common good than when that good is seen as the property of an external agent. If
the reduction in total production of water is linked to the proportional reduction of provision to the
community where the illegal water appropriation is in effect, it is likely to reduce illegal appropriation of
water; the feeling of appropriating water in the hands of the FD changes to appropriating water that
belongs to the community, which is more likely to stop the illegal appropriation. In addition, effective
reduction of water provided due to loss of water by illegal taking will act as an incentive for effective
monitoring and control.
Thus, in the case of the Lerma system, the recommendation is to legalize de facto appropriation
of water that communities in the state of Mexico perform along the distribution lines. This legal
recognition must be tied to a system of responsibilities to preserve and control the aquifers within the
communities’ jurisdictions, which will move the water appropriation process close to the LAN and the
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Ecological Balance and Environmental Protection General Law, which assert that the sustainable use and
preservation of the aquifers is responsibility of both the government and the society, and does not need to
be kept under institutional monitoring and enforcement—which have produced poor results.
6.2.2 On Equality
Lessons from the analysis performed on the history of use of water in MC performed in chapter
four tell us that a useful step toward shifting tendencies of unequal water distribution is to make evident
the dilemmas of the legal system and de facto appropriation of water. In 1822, changes in water control
started by adjusting the legal framework to make evident the Crown’s insurmountable dilemma passed on
to the newly independent Mexico: water as a common good and open to all, versus water as a commodity
in private hands. The dilemma, although slightly twisted, is still valid: to maintain water as a Nation’s
property and therefore meant to satisfy the water basic needs of all, or water maintained under
institutional appropriation for its discretional distribution.
The needed changes, in the case of MC, points toward adjusting both the relative value of legal
dispositions and the effective control of hydraulic infrastructure, whether regional or local, currently
under unilateral de facto control. In terms of fair water distribution purposes, the unilateral control has
had effects similar to private ownership. Thus, the effective control of water has to be related to both the
creation of fair WPR and the effective control of hydraulic infrastructure.
The recommendation is to keep the administration of dams under a single administration—in
order to avoid segmentation, which will increase the lack of control. But the rules for water
apportionment, as the regional distribution of water, must be tied to a program of extractions in which
water agencies with bulk water claims will have decision power regarding water allocation. A method
that has worked in California are that water agencies have voice and vote in regional forums, proportional
to two factors: the volume of water consumed and the amount paid for the water. This method has
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produced positive results in water management, and also on financing water production and water
preservation.
To date, CONAGUA has performed as the ultimate water authority and only actor with decision
power regarding the approval of water permits, whether on surface or groundwater sources of water. The
allocation of water permits cannot be under one agent without any accountability; this situation has
prolonged the deterioration of over-exploited sources of water. To shift the current situation, the
suggestion is that regional decisions about allocation of water from regional sources of water must be tied
to a collective decision with the intervention of water agencies based on the volume of water consumed
and paid for. Rational actors have the tendency to change their attitude toward legal appropriation of
water when rules are decided collectively, rather than being imposed from outside. Thus, the unequal
allocation of water is likely to change when the present and future legal appropriation of water will be
decided collectively.
The proposed collective decisions on water allocation and distribution are expected to produce a
better allocation of water than the current unequal apportionment and distribution, and will help deter
CONAGUA from unilateral decisions on inadequately granting legal WPR—as in the case of the legal
WPR granting to the FD 77.8 percent of the nominal volume of the Valle de Bravo dam, which in
practical terms represents 94.2 percent of the total amount of water stored according the historical records
of the median value of water stored during the last 11 years, creating the basis for discretional decisions
and for unequal regional distribution of water, which are necessary to avoid.
The same situation applies to groundwater permits by which CONAGUA grants legal extractions
that promote an annual deficit in regional aquifers (water recharged minus pumped water). Thus, solving
the inconsistency of legal WPR with the de facto appropriation of water, that so far has granted in one-to-
one agreements, is an important and urgent step.
The creation of new WPR is legally viable and the current legal WPR can be invalidated on the
grounds of violation of sustainable use of water and violation of water preservation, which includes
failing to preserve the recharging rate of aquifers, as the current Ecological Balance and Environmental
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Protection General Law requires. If rules must serve to create an ordered society, it is necessary to
overcome discretional decisions, and the aforementioned law makes mandatory that all the permits that
violate the law or oppose it must be null and void. That Law has provided the means, now it is necessary
to find the trigger that will enable creation of a process of collective power to overcome the institutional
control of water exercised by CONAGUA.
The new legal WPR needed must include three main components: they must consider the real
capacity of regional sources of water, regional water distribution must consider prior appropriation water
rights, and volumes must be adjusted based on population. The process of water allocation based on clear
and fair rules demands a clear and accountable process of provider-consumer relationship in regional and
local arenas.
While water agencies are consumers of water at a regional level and CONAGUA acts as the
water provider, the role is reversed at a local arena, where the water agencies become the water providers,
and the communities, municipalities, and boroughs are the consumers. Clear rules must control the
process of water distribution at both levels.
Fair allocation of water promoted at a regional level demands water agencies to adjust their rules
for water allocation and patterns of water consumption to real water availability. The responsibility of
reducing unequal water provision and consumption is a shared responsibility that follows a path from
regional to local arenas, and clear rules for water allocation will reduce social rejection or opposition.
The regional apportionment of water must include not only annual but also monthly variations of
water provision. So far, CONAGUA has provided water to SACMEX and CONAGUA while trying not
to surpass the annual legal amount of water awarded; the provision shows high monthly variations that
promote disequilibrium in sources of water and in overall water distributed to MC. Thus, it is advisable to
set the limits for water extraction from dams and aquifers, and tie them to current conditions of flow
water in rivers and flow of water recharging aquifers.
Distribution of water among water agencies must include a blueprint for compliance with legal
WPR, including incentives and penalties, making them mandatory for all inter-agency water agreements.
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The system must expressly state monthly and yearly variations of water provided and tied to a system of
graded penalties collectively defined and approved by water agencies, complementary to penalties
defined by the current legal framework. The system is meant to serve not only as an incentive to comply
with acquired administrative commitments but also to fulfill a basic requirement stated by the Law of
National Resources. The Law mandates the enforcement of contractual penalties and criminal charges, as
well as the destruction of illegal infrastructure. Unfortunately, the presidential decrees and inter-agency
agreements never included any penalty system.
In order to help water agencies comply with their commitments of water distribution, and to
honor accords on regional apportionments and metropolitan distribution, it is advisable to create a
regional reserve of water outside of CONAGUA control. The main purpose of that reserve is to
counteract the lack of credibility in water provision. The new apportionment of water granted, based on
real availability of water and clear rules for water distribution with a standardized system of incentives,
must include the criteria defining the minimum amount of water to be kept in dams and the maximum
amount of water to be extracted from the aquifers. The reserve of water should be used to honor water
apportionment when the water authorities do not fulfill their responsibility to allocate the legal amount of
water granted. Granting legal volumes of water will provide moral authority to legal apportionment and
distribution of water while counteracting the lack of contractual commitments that has created a lack of
institutional credibility.
These new water apportionments should both replace 1:1 agreements with collectively granted
water permits that are expected to promote a fair distribution of water, and overcome CONAGUA’s
discretional allocation of water that promotes unequal regional distribution of water among regional water
claimants.
6.2.3 On Accountability
The history of water appropriation in MC, and provision of potable water to MC, is a history of
appropriation based on economic WPR granted through force and power. The decrees did not create
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complete WPR, they defined privileges and granted benefits by defining legal apportionment and
distribution of water.
The decrees were created under a highly centralized system, lacking consistency in cosigners;
therefore, the actors in charge of implementing what the decrees mandated varied. Since the decrees did
not impose penalties on actors who interfere with the use of WPR already granted to other water users, or
de facto upcoming water users and water claimants, the decrees depict a mere formality to give legality to
an executive order created for specific purposes, and their implementation was linked to entities
subordinated to the Federal Power. They were not agreements among parts able to create binding-
enforceable decisions. The following recommendation aim helping to change the status quo,
A first step is creating a standardized system of incentives and penalties based on the systems of
penalties that the disjointed federal law legal framework already has. This step requires amending Art.
115, Fraction I of the Metrology and Standards Law that provides a loophole to avoid sanctioning those
who violate that Law. Fraction I asserts that the penalties must be applied not based in the violations
themselves but in the intention or thereof lack of the actions and omission of the violation. In order to
provide adequate law enforcement, Fraction I of that article must be narrowed down, amended, or
specified to avoid be used by water agencies to avoid fees and sanctions while violating limits for water
extractions and appropriating sources of water while claiming that the extractions are intended for human
provision.
A second step is to create a fundamental blueprint with basic responsibilities and benefits granted
by the LAN, the Ecological Balance and Environmental Protection General Law, the Law of National
Resources, and the Metrology and Standards Law in order to clarify mandatory requirements that should
apply to all inter-agency accords, federal water apportionments, or water distributions. The penalties
include administrative, pecuniary, and criminal charges to those who directly or indirectly promote or
perform actions that violate the law.
A third step is to improve the graded system of fees and sanctions. The recommendation is that
the first violation of the law must result in neither a suspension of water permit, administrative sanction,
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pecuniary fee, nor prosecution, but a warning paired with an official delivery of the basic information,
and a list of sources that will provide detailed information, on fundamental duties and obligations. The
information delivered must contain the requirements included in the blueprint with aforementioned laws
and the interagency accord that was violated, and must describe the administrative, pecuniary, and
criminal charges the water agency or water authority are subject to from the second and consecutive
infractions and violations. While federal and regional legal frameworks assume that water agencies act as
an integrated unit and that operational areas are aware of the Presidential decrees, inter-institutional
agreements, and accords, the analysis performed in chapters four and five shows that, in the case of the
State of Mexico, the reality fell far behind the assumption.
A central recommendation to promoting accountability is to enforce the duty of having water
meters on all sources of water. The honor system on which the appropriation of water is currently based
must be changed. The LAN stands on water consumers’ good faith for reporting water consumption, and
delegates to the water authorities the responsibility of rule and penalty enforcement; this requires official
visitations and inspections. Since those suppositions are broadly violated in practice, and water agencies
have been reluctant to implement the mandatory condition, the suggestion is to start enforcement of the
law at the main sources of bulk water at a regional level.
This situation points out the multiple roles of CONAGUA, which acts as a regulator and as an
actor with monitoring and enforcement powers, and also acts as a water agency while appropriating water
for regional apportionment and metropolitan distribution purposes. The collective decisions on water
distribution proposed in the first part of this section only makes sense when controls for water
measurement are added; these are not currently fulfilled.
Reliable water measurements are needed in order to reverse the unpunished violations of the
LAN, when the same actor performs several violations and lacks accountability and incentives to conform
to legal framework, and when local water agencies exercise de facto complete appropriation of water
sources. Leaving water consumption reporting in the hands of water consumers, as the LAN mandates,
has produced pernicious results for water preservation and fair distribution. The suggestion is to replace
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the current abused honor system with a tripartite and mandatory water measurement procedure that
includes the water deliverer, water recipient, and Metrology and Standards authorities.
In Mexico the government has the duty to provide water, but is not required to do it for free, since
water provision includes the exchange of services, and both commercial and industrial transactions. Then,
exchange of water among water agencies includes transactions and exchanges already regulated by the
Metrology and Standards Law. This law mandates that any commercial or industrial transaction or
exchange of services must be measured, and empowers the Secretary of the Economy to impose fees and
sanctions when violations occur. A practical way to leave the vicious cycle of having an agent without
accountability, while using current legal framework to counteract that lack of accountability and promote
adequate metropolitan water administration, is to add the Metrology and Standards law’s requirements to
the aforementioned proposed blueprint for creating accords for water apportionment and distribution in
order to force the water authorities and water agencies to fulfill their responsibilities.
The recommendation is to add the following immediate actions to the proposed blueprint for
water apportionment and distribution. First, the mandatory installation of water meters must be ratified;
second, the visitations for verifying the installation of water meters must be made mandatory, but the
visitations should not be under the control of CONAGUA or the OCAVM, which already have failed that
responsibility, but responsible to the Department of Economy authorities, which also should verify the
sources from which CONAGUA and the OCAVM obtain water; third, visitations should not be restricted
to visual verification as currently performed; well diameter and depth of extraction should be verified
immediately before the well comes into operation, and mechanisms of control should be validated, with
seals set in place until water meters, working under official standards, are verified. If the requirement for
a validated water meter is not accomplished, then graded pecuniary fees must be applied (after an official
warning for the first violation), and in the case of recidivism, penalties with cumulative fees must be
applied until the requirement of having a water meter is fulfilled. Since the current water administration is
highly centralized, a way to make the system work is to promote administrative and legal changes to
make the top official of the water agency or water authority legally responsible for the lack of
205
accomplishment of water meters installation, and subject to the penalty fees, temporary and permanent
suspensions, jail up to 36 hours, and suspension of water permits included in the current legal framework.
In order to amend previous inter-institutional agreements for transferring control of sources of
water, as the transference of control of wells in 1995 was explained in chapter five, the agreements
between CONAGUA-FD and CONAGUA-State of Mexico must be updated and linked to the
aforementioned system of incentives to help the implementation of previously acquired responsibilities.
6.2.4 On Metropolitan Administration of Water
To promote adequate metropolitan water administration, two conditions must be accomplished: to
change the cost-benefit relationship of illegal appropriation of water, and to provide credible enforcement
of regulation. Thus, adequate metropolitan water administration requires the presence of a regional entity
with at least the following powers: executive power for monitoring and enforcing accords and
agreements, alternate conflict resolution power, and power of exclusion.
In order to achieve these conditions this regional entity has four crucial problems to overcome: a)
to define the resource system and pair it with the flow of the resource; b) to ensure that the incongruences
between appropriation rules and physical capacity of the system are eliminated, and new, fitting rules for
collective appropriation of water are created; c) to gain control over sources of water and make them part
of controlled exploitation at a regional level; and d) to standardize a system of incentives and enforce it in
order to change people’s and institutions’ behavior.
The basic requirement is that that new regional entity must be an agent independent from the
control of CONAGUA in order to avoid the vices and lack of efficiency that the existent regional
organizations have. A vital and urgent step for this new entity is to define what MC should be, while
defining who is part of the metropolitan area and who is not, and then make this definition a constitutive
part of the presidential decrees and inter-institutional agreements.
206
The suggestion in that direction is, as starting point, that MC can be understood as defined by the
declaration of the Metropolitan area of the Valley of Mexico, officially recognized by the State of Mexico
and the FD in 2005, and the borders to be tied to the changes of that declaration or the legal substitute for
it. Later in 2008, that declaration was amended to include 29 municipalities of the state of Hidalgo.
Municipal amalgamation is unlikely to occur in MC, and the creation of a metropolitan
government has been the cause of political disagreements and controversies. This remains an unsolved
issue, mainly because of the lack of political agreement to amend the Constitution, which does not
recognize the existence of intermediate governments between states and municipalities. But the State of
Mexico legal framework allows the municipalities to associate with other municipalities within the state
and with other states in order to fulfill their responsibilities; this can be used as the base for moving
toward the creation of an independent regional authority with the aforementioned powers, and for
specialized purposes.
This suggestion may work since the FD geographic borders have not changed, but new
municipalities that were not part of MC in 1972 have been incorporated into MC, and CAEM already
includes them in their water provision. Nonetheless, their participation in water apportionments and
distribution have been nominal, or have hd no role in regional apportionments of water, as explained in
chapter four.
6.2.5 For Future Research
The recommendation is to extend the analysis in space and time. In order to understand how the
regional apportionment of water affects local distribution of water, it is advisable to extend the analysis of
regional apportionment of water and metropolitan distribution of water to the policies implemented in
boroughs and municipalities.
In the case of metropolitan municipalities, Cuauhtitlán Izcalli is a good candidate. CONAGUA
and CAEM are directly in charge of providing bulk water to the municipality from external sources and
207
the municipality itself is in charge of local sources of water, which presents a good opportunity to learn
about interaction at a local level. Since this municipality was awarded the National Award of Water
Culture in 2014, a prize public and private organizations grant to recognize good water management, the
municipality not only has integrated information that includes the whole municipal water system, but,
more importantly, the water authorities are willing to share their experience in water management.
The second metropolitan municipality that will provide useful information is Ecatepec de
Morelos. It also has provision from the Cutzamala, Lerma and PAI systems. Additionally, CONAGUA
transferred to the municipality the direct control of wells, which remain in use without accountability.
Unlike Cuauhtitlán, the local functionaries traditionally have shown high discretional power not only on
water appropriation and water distribution, but also on the kind of information that they made available,
regardless of the constitutional, federal, and local legal framework that commands them to make public
information available to the public. Although challenging, the path to access information related to water
administration may provide useful lessons on how to overcome institutional barriers and promote
metropolitan administration, while unveiling the power a local water agency uses to counteract current
legal mandates.
In the case of the FD, two contrasting boroughs, whether selected by per capita provision of
water or by total population, will provide useful lessons on water distribution while granting legitimacy,
equality, and accountability. The exercise will provide useful lessons because, in the case of the FD,
SACMEX is the only water agency in charge of water distribution for all 16 boroughs. The analysis at a
local level is vital to create a more detailed proposal on metropolitan administration of water.
Moreover, since 2008 the State of Hidalgo has been officially recognized as part of MC, but it is
not part of the Presidential accords and decrees regarding regional apportionments from the Cutzamala
and Lerma systems. It was, however, part of the accords of 1995 analyzed in chapter five, by which
CONAGUA transferred the direct control of wells to the governments of the FD and State of Mexico. So,
in practice, it has been gradually included in the well benefits, but the duties attached to that delegated
authority over the wells is not clear. The suggestion is to start from there.
208
In order to create a more structured proposal for creation of metropolitan water management, the
recommendation is to consider the experience of officials in charge of water management. Semi-
structured interviews with relevant officials of CONAGUA, SACMEX, CAEM, and the water agency in
the state of Hidalgo, and also municipal water agencies, will serve the purpose. In the case of SACMEX,
CAEM, and municipal agencies, the interviews should include technicians in operative areas.
The analyses must be extended to include changes made in 2015. Congress approved a new
water law this year; additionally, several functions of CONAGUA were declared matters of national
security. In order to forecast implications or concealed repercussions, it is necessary to include an analysis
of the new legal framework.
209
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Abstract (if available)
Abstract
This dissertation contains analyses that explain the lack of provision of potable water to Greater Mexico City, and provides solutions to overcome the current limitations. While using institutional and property rights analyses, the dissertation helps in understanding the existing constraints on actors and institutions. The analyses presented, based on the problems of managing water as a collective good, include the complications of having several decisive actors over a common territory, together with their management of resources that may not be constrained to the political or administrative boundaries of the resource users or of the actors’ control. The dissertation also helps to understand how institutional factors have promoted policies and processes that impede the creation of adequate metropolitan water administration. ❧ Using data from governmental water agencies, provided by special request, the analysis shows that the crisis of water in Greater Mexico City is a set of rules, processes, and policies amongst orders of government that misconceived a city-water relationship built over a period of five centuries of continuing effort. The conflicting views about controlling water have created weak water property rights that fail to create effective collective-choice arrangements to control water as a common good. Three groups of solutions are needed: 1) in order to enable effective and adequate metropolitan water administration, current water property rights must be provided with moral force
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Creator
Clemente Mendoza, Homero
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Core Title
The crisis of potable water in Mexico City: institutional factors and water property rights as conditions for creating adequate metropolitan water governance
School
School of Policy, Planning and Development
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Doctor of Policy, Planning & Development
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Policy, Planning, and Development
Publication Date
03/01/2016
Defense Date
12/14/2015
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Tag
governance of common goods,Greater Mexico City water system,interagency water administration,legal and economic appropriation of water,metropolitan distribution of water,metropolitan urban planning,multilevel water administration,OAI-PMH Harvest,regional water governance,water property rights
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Tags
governance of common goods
Greater Mexico City water system
interagency water administration
legal and economic appropriation of water
metropolitan distribution of water
metropolitan urban planning
multilevel water administration
regional water governance
water property rights