WSP04854

• File Number: 8278.400
• Description: Title I - Mexican Treaty
• Basin: Colorado Mainstem
• Date: 9/20/1944
• Author: Jean Breitenstein
• Title: Memorandum Concerning Proposed Treaty Between the United States and Mexico Over Use of the Waters of the Border Streams
• Water Supply Pro - Doc Type: Publication

of the other without the express consent of the Government of the latter, The works con-
structed. acquired or used in fulfillment of the provisions of this Treaty and located wholly
within the territorial limits of either country. although these works may be international in
character. shall remain. except as herein otherwise specifically provided, under the exclusive
jurisdiction and control of the Seaian of the Commission in whose country the works may
be situated."

Part V of the treaty provides that the Commission shall have certain definice powers and duties,
Since these relate to the carrying into effect of the other provisions of the treaty, it is wen. before con-
sidering them, to outline just what are the obligations of this nation with reference to the Colorado
River. This analysis will not be made as to the Rio Grande. as it is believed that those interested in
the Rio Grande are unifotmly suppotting the treaty,

Ie is noteworthy that Articles 10 and 11. which make the allotment and provide for the delivery
of water to Mexico. impose the delivery obligation upon the United States, In other words. the duty
of satisfying treaty requirements is a definite duty of this nation. and not of the Commission or any
other agency. It is true that Atticle II (d) provides that deliveries shall be made subject to provisions
of Article 15. which permits the scheduling of deliveries by Mexico and the presentation of such
schedules to tbe Commission. Article 15 does not change the effect of Articles 10 and II. which
impose the obligation of delivery upon the United States,

The assertion has been made that the Commission "may go anywbere in that (Colorado River)
system. even into tbe tributaries. and regulate and take water to make or assure deliveries to Mexico;"
and it has been said that this results from the provisions of Articles I 0 and 11. alloting waters "from
any and all sources."

No such power is given tbe Commission anywhere in the treaty.

The Commission has only those powers specifically given to it, Nowhere in the treaty is there
any provision from which can be spelled out a power of the Commission to regulate. control. or
administer the entire stream for the benefit of Mexico. If. for any reason in the future, there is such
an administration of the stream by the- duly empowered state and federal agE'ncies as (0 make unavail-
able for Mexico the amounts of water requisite to satisfy the treaty provisions. all the Commission
could do would be to request the appropriate state or federal agency to make the necessary amounts
of water available; and in the event of a failure to do so, to bring some appropriate court anion. The
suggestion that the Commission might regulate Boulder Dam or Parker Dam or might control diver-
sions and uses in upstream areas results only from a desire to misconstrue and misrepresent the treaty.

Reference should also be made to the assertion that the treaty makes the rights and interests of
the United States subject to Mexican rights and interests. In so far as this statement is intended to
mean that the United States must comply with the water delivery provisions of the treaty, it is true.
Mexico is the down-stream user. As California and all other down-stream users well know, the only
satisfactory protection they can have is the imposition of an obligation on the up-stream area to pass
down a certain amount of water to them. In no other way could Mexico be protected.

With reference to the construction of works, consideration must be given to Articles 12 and 13.
The treaty proposes that the following works be constructed:

L A main diversion dam below the northern boundary shall be constructed, main-
tained. and operated by Mexico at its expense;

2. Simultaneously with the construction of the main diversion dam referred to in
number 1. there shall be constructed levees and other works to protect lands within the United
Stares against damage from flooding and seepage caused by such structure. and these protective
works shall be constructed, operated. and maintained at the expense of Mexico;

3, The United States within five years from the effective date of the treaty shall con-
struet and thereafter operate and maintain at its own expense the Davis Dam, a part of the
capacity of which shall be used to make possible the regulated deliveries to Mexico required
by Article 15;

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