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International Water Issues

Water crosses international borders as easily as it crosses state borders or the boundaries of a water resource district. This page introduces water issues along the border of the United States and Canada.

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Boundary Waters Treaty (1909)

  • "... provides the principles and mechanisms to help resolve disputes and to prevent future ones, primarily those concerning water quantity and water quality along the boundary between Canada and the United States."
  • For more information, see http://bwt.ijc.org/index.php?page=boundary-waters&hl=eng.
  • Text of the Boundary Waters Treaty
  • Articles VII through X establish the International Joint Commission (IJC)

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International Joint Commission (IJC)

  • See http://www.ijc.org/en_/.
  • IJC has 6 members -- three from each nation.
  • "This International Joint Commission shall have jurisdiction over and shall pass upon all cases involving the use or obstruction or diversion of the waters"
  • The following order of precedence shall be observed among the various uses .., and no use shall be permitted which tends materially to conflict with or restrain any other use which is given preference over it in this order of precedence:

    1. Uses for domestic and sanitary purposes;

    2. Uses for navigation, including the service of canals for the purposes of navigation;

    3. Uses for power and for irrigation purposes.

  • The foregoing provisions shall not apply to or disturb any existing uses of boundary waters on either side of the boundary...

  • The Commission in its discretion may make its approval in any case conditional upon the construction of remedial or protective works to compensate so far as possible for the particular use or diversion proposed...

  • In cases involving the elevation of the natural level of waters on either side of the line as a result of the construction or maintenance on the other side of remedial or protective works or dams or other obstructions in boundary waters flowing there from or in waters below the boundary in rivers flowing across the boundary, the Commission shall require, as a condition of its approval thereof, that suitable and adequate provision, approved by it, be made for the protection and indemnity of all interests on the other side of the line which may be injured thereby.

  • The majority of the Commissioners shall have power to render a decision.

  • Differences involving the rights, obligations, or interests shall be referred to the International Joint Commission to examine and report.upon the facts and circumstances of the particular questions and matters referred, together with such conclusions and recommendations as may be appropriate.

  • Any differences involving the rights, obligations, or interests may be referred for decision to the International Joint Commission by the consent of the two Parties.  The Commission is authorized to examine into and report upon the facts and circumstances, together with such conclusions and recommendations as may be appropriate, subject, however, to any restrictions or exceptions which may be imposed with respect thereto by the terms of the reference.  A majority of the Commission shall have power to render a decision or finding upon any of the questions or matters so referred.

  • A DISCUSSION PAPER ON The International Watersheds Initiative, INTERNATIONAL WATERSHED BOARDS, June 2005

  • Information about IJC at http://www.ijc.org/en/background/ijc_cmi_nature.htm

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International Boundary and Water Commission

The United States also has an international border on its south side.

  • See http://www.ibwc.state.gov/home.html
    • "As provided for in the treaties and agreements, those rights and obligations include: distribution between the two countries of the waters of the Rio Grande and of the Colorado River; regulation and conservation of the waters of  the Rio Grande for their use by the two countries by joint construction, operation and maintenance of international storage dams and reservoirs and plants for generating hydroelectric energy at the dams; regulation of the Colorado River waters allocated to Mexico; protection of lands along the river from floods by levee and floodway projects; solution of border sanitation and other border water quality problems; preservation of the Rio Grande and Colorado River as the international boundary; and demarcation of the land boundary."
  • The first water distribution treaty between the two countries:  the Convention of March 1, 1906
  • The second water distribution treaty between the United States and Mexico:  The Water Treaty of February 3, 1944

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Summary

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Water law attempts to resolve disputes that arise when the desired quantity of water and the desired quality of water are not in the desired place at the desired time.

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States are responsible for allocating water for those who want it and allowing water to be disposed of for those who do not want it.

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Water law is changing as the desires for water, land and other resources continue to evolve.

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The trend to resolve water issues through market transactions is advancing but will market forces be the sole solution for future water issues? 

  • HINT -- is the requirement for a flowage easement forcing drainage into market transactions?

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Disclaimer

Email:  david.saxowsky@ndsu.edu

This material is intended for educational purposes only. It is not a substitute for competent legal counsel. Seek appropriate professional advice for answers to your specific questions.

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