Controversy over water decrees illustrates government unpopularity
Mexico’s President Enrique Peña Nieto on 5 June – the United Nation’s (UN) World Environment Day – signed 10 decrees that give the state limited access to water sources in the national territory, the exploitation of which previously was banned. The changes were published in the official gazette the following day, when they came into effect. Although initially the issue attracted little public attention, reports were published in the local press and social media on 19-20 June claiming that the decrees amounted to the furtive privatisation of Mexico’s water resources, sparking discontent and prompting President-elect Andrés Manuel López Obrador – who at the time was the front-runner in the 1 July presidential election – to say that he would strike down the decrees upon taking office as Peña Nieto’s successor in December.
The decrees remove the total ban on the use of 55% of the country’s rivers and lakes. Each decree also includes the specific percentage of the water that may be used – through a concession – from each of the 295 hydrological basins it covers (out of the total of 757 that exist across the country). Each decree corresponds to a particular area:
- Grijalva-Usumacinta (Chiapas, Tabasco, and Campeche states)
- Papaloapan (Oaxaca, Puebla, and Veracruz)
- Pánuco (Estado de México, Querétaro, Guanajuato, San Luis Potosí, Veracruz, Tamaulipas, and Nuevo León)
- Costa Chica de Guerrero (Guerrero and Oaxaca)
- Costa Grande de Guerrero (Guerrero and Oaxaca)
- San Fernando Soto la Marina (Tamaulipas and Nuevo León)
- Santiago (Aguascalientes, Durango, Guanajuato, Jalisco, Nayarit, San Luis Potosí, and Zacatecas)
- Actopan-Antigua (Veracruz and Puebla)
- Costa de Jalisco (Colima and Jalisco)
- Ameca (Nayarit and Jalisco)
The outgoing Peña Nieto government has indeed unsuccessfully tried to reform the country’s’ water legal framework. A new ‘water bill’ was introduced to the federal congress in February 2013 but proved extremely unpopular due to its provisions regarding the use of water for industrial activities. A second bill amending the existing 1992 Ley de Aguas Nacionales (LAN) national water law followed in early 2018. Known as the ‘Pichardo bill’ because it was presented by federal deputy José Ignacio Pichardo Lechuga, it remains frozen in the federal legislature. Given that López Obrador’s Movimiento Regeneración Nacional (Morena) leftist party and its allies will dominate both chambers of the new federal congress once it is sworn in on 1 September, this bill is also likely to languish without approval – or even discussion in the near future.
Detractors of the latest changes maintain that the lifting of the ban on the use of water sources is tantamount to the privatisation of these resources, which would particularly benefit energy and mining companies to the detriment of small-scale economic activities, such as agriculture, and of rural and indigenous communities. That is the case of the main critic of the changes, a local organisation called ‘Agua para Tod@s’ (‘water for all’). Opponents of the decrees have also said that they are illegal.
However, these claims are misleading. Crucially, article 41 of the current LAN establishes that the president can issue decrees to lift the ban on the use of hydrological basins for accessing water for domestic and urban use, power generation for public use, and environmental protection. While Peña Nieto’s decrees do allow for the extraction of water, the use of the resource is restricted for domestic use and for ecological conservation only. Allegations that the changes were carried out illegally are therefore also untrue.
Moreover, as pointed out by Roberto Ramírez de la Parra, the head of the national water commission (Conagua) – the water regulator – the decrees do not alter the definition of water as a national asset, as established in constitutional Article 27 and in the current LAN. Ramírez de la Parra has added that no concessions for mining, fracking, bottling plants or hydroelectric power plants will be awarded by the current government as the decrees only cover uses for conservation and domestic consumption, rather than exploitation of the resource, as its objectives.
Indeed, the changes were carried out with input from reputable international environmental protection organisations that include the World Wide Fund for Nature (WWF), which has been working alongside Mexican authorities and a wide range of key stakeholders for 12 years to draft the decrees. According to Conagua, the changes also followed international best practice such as those recommended by the International Water Resources Association (IWRA) and the World Resources Institute.
Eugenio Barrios, head of the Water Programme at the WWF Mexico office, points out that similar bans were lifted in 2012 and 2016, causing no increase in concessions to private firms. Rather, Barrios highlighted that the new status of these zones allows for greater transparency in the administration of water resources and better long-term management. The changes were carried out to ensure access to water in the long-term – it is estimated that they will benefit 45m people, including 18m unborn children, over the next 50 years. The decrees will also benefit 82 protected natural areas and 64 wetland sites of international importance (as defined under the Ramsar Convention on Wetlands of International Importance). In the case of the Usumacinta, Mexico’s mightiest river, and one of the world’s 30 largest, the decrees allow for more than 90% of its superficial water to be reserved for environmental protection and human consumption.
As Rodrigo Gutiérrez, an academic at the institute of law research of the Universidad Nacional Autónoma de México (IIJ-Unam), points out, the decision may be seen as arbitrary because it involved no consultation or public debate about an issue that is extremely sensitive politically. However, none of the decrees contemplates the use of water resources for energy production – which is one of the main fears of its critics. The negative reaction to the changes respond more to Peña Nieto’s lack of credibility and unpopularity, rather than to any actual threat of privatising water.
Having said that, there are valid points that some of the critics of the decrees have made, such as the lack of oversight of the concession regime, as pointed out by Gonzalo Hatch of Unam’s centre for North American research (Cina-Unam). This is an indirect issue that represents a more significant threat to water accessibility in the long-term. Similarly, water pollution is another issue that also requires attention and has not be addressed by the decrees. As highlighted by María del Carmen Carmona Lara of IIJ-Unam, the decrees do not take into account that over 90% of the country’s rivers are polluted, which reduces the benefit of having access to water if it is not of good quality.
Indeed, an overhaul of the country’s water laws remains much needed as the current water concession regime dates from 1917, while some of the bans date from the 1930s, when hydrological conditions and population pressure on the resource were significantly different. With only five months left in office, this is not an area that Peña Nieto will go into as his administration winds down. And given the sensitivity of the issue, it appears highly unlikely that the populist López Obrador will risk losing support over it – at least initially. However, sooner or later, someone will have to address it.