Synopsis: As the nation deals with heated debates about border migration and security, an ambitious new project is unfolding in Laredo that will reimagine the southern border and address seemingly unrelated issues of water sustainability and national security. This article discusses some legal implications of the proposed Binational River Conservation Project.
Introduction
In August 2023, a group of Venezuelan migrants briefly shut down traffic on one of the international bridges, located in Laredo, Texas, to Mexico. As they held up signs stating queremos pasar (we want to pass), their chief complaint was that the CBS’s asylum app was not working. Business resumed after the protest was quickly subdued by Mexican agents, in contrast to more persistent shutdowns in other border cities like Eagle Pass.
Just two weeks before the protest, a group of dignitaries gathered on the banks of the Rio Grande just blocks from the bridge that would be soon shut down by the migrant protest. U.S. Ambassador to Mexico Ken Salazar, joined by leaders from both sides of the border, praised a great new era of binational cooperation. A subject of the event was the Binational River Conservation Project, a multi-year development that would span 6 miles down both sides of the Rio Grande and be modeled after similar developments like the San Antonio Riverwalk and Austin’s Ladybird Lake Park.
The two events just weeks and blocks apart represent the two alternate realities of the U.S.-Mexico relationship in the 21st Century. In the media and political discourse, border cities like Laredo are defined by events like the migrant protest. Most Americans are unaware of the other side of the coin, including statistics such as the nearly $1 billion worth of daily trade passing through Laredo in the aftermath of the COVID-19 pandemic. Such trade has caused Laredo to surpass the port of Los Angeles as America’s busiest port.
The Binational River Conservation Project (“BRCP”) has the potential to finally reconcile the two alternate realities, addressing seemingly unrelated issues like border security, water sustainability, and economic development.
The conceptual renderings by architecture firm Overland Partners show a project that would transform Laredo. Though similar in layout to river developments in Texas’s larger cities, the project is unique because it would be the only one of its kind that would span two different countries. It would also provide a welcome alternative to the metal grates and barbed wires that define almost every other southern border community from Tijuana, Mexico to Brownsville, Texas.
Despite widespread support from a coalition of business and environmental leaders, the BRCP implicates significant legal and financial challenges. This article covers three broad topics raised by the project: (1) international water law; (2) national security, since the project is largely targeted at improving border security in a manner that does not require a border wall; and (3) binational finance, with an emphasis on the role of the North American Development Bank and related binational financing sources.
“It Starts at the River” – The Origins of the Binational River Conservation Project
The BRCP came to fruition shortly after Ambassador Salazar took office in September of 2021 and visited Laredo. During his visit, local leaders discussed existing plans for river restoration that had already been conceived by local environmental nonprofit, the Rio Grande International Study Center (“RGISC”), and a white paper published by the International Bank of Commerce CEO Dennis Nixon, titled Common Sense Border Management Solutions (the “White Paper”). In the White Paper, Nixon discusses how poor management of the riverbanks has made the city’s sole drinking source unsustainable while also making border security more challenging for agents. The August 2021 issue proposed a binational park “re-populated with native prairie grasses that have limited growth potential and can be easily and economically maintained.”
The poor condition of the riverbanks is evident by just visually comparing the two sides of the Rio Grande in the Laredo sector. On the Mexican side, the heavily vegetated banks stand in stark contrast to the bare muddy banks of the Laredo side, which is the case along large portions of the Río Grande. Both features negatively impact the water supply for the approximately 6 million people who depend on it, albeit for different reasons. The vegetation along the banks consists largely of invasive species like carrizo cane and salt cedar that consume vast quantities of water from the river. By some estimates, a mature salt cedar plant can consume over 100 gallons of water from the river a day. This is roughly equivalent to the daily water supply of one or two Laredo households.
According to RGISC’s watershed director Martin Castro, on the U.S. side, the Border Patrol’s stripping of vegetation from the banks to assist with apprehensions has caused large scale erosion and silting, making the river shallower and the water dirtier, which is exacerbated by the millions of gallons of sewage per day that Nuevo Laredo pours into the river. To illustrate this problem, Castro points to a large barren island near downtown, for which he stated, “The next major flood could completely erase that island because of a lack of native vegetation necessary to prevent erosion….” He further commented that, “This would make the siltation problem even worse and be a huge loss for the watershed.”
In early 2022, the Laredo City Council (the “Council”) authorized the creation of a Binational Working Group to advise the city on matters of “flood control, water conservation, and amenity improvements” along the river. The Council later granted Overland Partners, an architecture firm based in San Antonio, Texas, the authority to spearhead the project. The plan they devised was a 6.2-mile park on both sides of the river that would not only repair the banks but would include hiking trails, pedestrian bridges, a binational amphitheater, and a monarch sanctuary.
Although the BRCP has been criticized locally as an unnecessary municipal “park” with a big price tag, its origins have always been directed at repairing the river to make it more sustainable. As the South Texas border’s population has doubled over the past few decades, the water supply has only shrunk. This has led to increased disputes and litigation among U.S. states and their Mexican counterparts, including a recent case involving Texas, Colorado, and New Mexico, arising out of Texas’s 2013 lawsuit claiming that New Mexico water users were siphoning disproportionate amounts of water before it reached Texas.
Water disputes between the U.S. and Mexico add an international layer of complexity. The main treaty addressing water use and management between the two countries is the 1944 United States and Mexico Treaty of the Utilization of Waters of the Colorado and Tijuana Rivers and of the Rio Grande (the “1944 Treaty”). As scholars have noted, however, this treaty is severely outdate, as it was drafted before contemporary developments were realized, such as an increasingly volatile climate defined by drought and significant industrial water use associated with the maquiladora industry and unconventional fossil fuel drilling.
The 1944 Treaty is the main legal mechanism that governs sovereignty over transboundary rivers like the Rio Grande. The 1944 Treaty created a binational agency called the International Boundary and Water Commission (“IBWC”), which has exclusive authority over the administration of transboundary rivers and maintaining the boundaries.
An ongoing dispute before the IBCW is a provision of the 1944 Treaty that requires water allocation and delivery between Mexico and the U.S., including specific delivery amounts from Mexico to Texas in five-year cycles. Specifically, one-third of the water that falls in the mountains of Northern Mexico must be delivered to Texas.
In recent years, persistent drought in Mexico combined with increased industrial and agricultural use has caused Mexico to default on its delivery obligations. Demonstrations in 2020 in Chihuahua against water deliveries to the U.S. resulted in one death. As drought conditions have worsened in recent years, Mexico is once again behind schedule and incompliant with the 1944 Treaty, thereby leaving farms and cities in Texas deprived of water. This issue has been exacerbated by a summer of record-breaking heat in Texas, meaning the region needs more water to maintain its crops and lawns.
In 2021, Laredo’s 50-year master water plan estimated that the city’s population would outgrow its water supply by 2040. “It starts at the river,” Overland’s Rick Archer said while explaining that much-needed improvements to plumbing infrastructure and wastewater treatment will make little difference if there is not a steady water supply.
The BRCP is a constructive plan to address these shortages that have their origins hundreds of miles upriver and in the mountains of Mexico. The IBWC will undoubtedly play a role in finding solutions to similar problems across the entire Rio Grande watershed. The agency is already working on a possible treaty addendum that would “grow the pie,” to expand water supply in both countries and prevent future disputes.
If the BRCP gains traction, it can serve as a good roadmap for the IBWC’s ongoing efforts to “grow the pie” by promoting similar developments in other cities, developing procedures to streamline permitting and red tape that will undoubtedly arise.
National Security Challenges with Border Parks
In the White Paper, a secondary reason for restoring the Rio Grande is to provide Border Patrol agents with “a clear line of sight along the Rio Grande River,” and better access to the river. Members of Customs and Border Protection (“CBP”) have been involved in discussions of the binational project since its inception. According to Rick Archer, CBP is largely on board with the plan as a more cost-effective solution to border security than a costly border wall.
The BRCP will increase pedestrian traffic along the banks, which may even extend over the river through proposed pedestrian walkways that are part of Overland’s renderings. Though the binational working group believes that the BRCP will deter illegal trafficking overall, the increased interactions will undoubtedly create national security challenges both for border agents and the IBWC.
The Friendship Park separating San Diego, California and Tijuana is the sole example of a binational park on the southern border, albeit one defined by militarized fencing that makes its name ironic. Today, this site is the only binational meeting place that is federally designated along the southern border.
Until the mid-1990s, there was no border fence at Friendship Park, and people in each country could freely visit under the supervision of nearby border agents. In 1994, a 14-mile fence divided the park, which has become increasingly militarized in the post-9/11 era. Today, visitors must show identification, and access is severely restricted, with the park sometimes closed altogether.
The security measures at the Friendship Park provide a preview of how things might work for the newly proposed park in Laredo. In addition to traditional border checks of pedestrians, border agents could also use new measures like facial biometric technology to manage pedestrians to the pedestrian bridges.
Whether the IBWC or other federal agencies are willing to facilitate something like the Laredo park concept depends on the president in charge. Like any international bridge, cross-border projects typically require presidential permits. This includes the Cross Border Xpress, an airport terminal spanning both San Diego and Tijuana that received a permit from the Obama Administration in 2010. Given Ambassador Salazar’s enthusiasm for the Laredo project, a presidential permit seems within reach with a second Biden administration, although recent comments on the Mexico-U.S. border from the Biden administration may call this into question. Another Trump term could possibly lead to another years-long push for a border wall that would likely put a binational park on the backburner.
The government of Texas could also try to impede the proposed park, though such efforts would be constrained by the IBWC’s authority. Recently, when Governor Greg Abbott tried to install a buoy system near Del Rio, this was struck down by a federal court because the state failed to obtain approval by Congress and the Army Corps of Engineers, as required by 33 U.S.C. 403 for any obstruction of U.S. navigable waters.
Judge Alan Ezra noted that although the IBWC did not have authority itself to prevent the barriers, the “barrier also threatens to IBWC’s ability to implement the core provisions of the 1944 Treaty between the United States and Mexico, which is crucial to allocation of waters in the Rio Grande.”
The $500 Million Dollar Question
On August 6, 2023, the North American Development Bank (NADB) announced an $81 million loan to Nuevo Laredo, Tamaulipas to upgrade its wastewater treatment facilities, increase treatment capacity, and improve deteriorating infrastructure. These funds address a key impediment to water sustainability: the millions of gallons flowing from Nuevo Laredo into the river that places significant burdens on the wastewater capacities of both sister cities.
The loan is just one component of what is expected to be a multimillion-dollar endeavor over several years. Other potential funding options are illustrated by the San Diego/Tijauna Cross Border Xpress, which was funded in part by a loan from Bancomext (Mexico’s development bank) and Banco Invex. This was the first time that Mexico’s development bank has made a loan to a U.S.-based developer for a U.S.-based project and collateralized by assets located in the U.S.
The NADB loan complements the nearly $10 million in funds that a binational working group has already secured from city, county, and federal sources to begin the initial stages of the BRCP in repairing critical areas of the watershed. In August 2022, U.S. Representative Henry Cuellar secured more funding with a $2 million earmark for the Project. This was enough to prod the Council, which in early 2023 authorized a grant application to Texas Parks and Wildlife under the National Park Service for $2 million with a required 1:1 match, for a total estimated project cost of $4 million. Webb County then committed to match the city’s $2 million investment. This of course only includes the U.S. side of the equation.
Though there is no hard groundbreaking scheduled, Martin Castro is optimistic that initial restoration work along the Zacate Creek area in Laredo will begin in 2024.
Conclusion
The Binational River Conservation Project is supported by a broad coalition of supporters, including the business community with commitments from IBC and Kansas City Southern Railroad, the federal government under the guidance of Ambassador Salazar and U.S. Rep. Henry Cuellar, and environmentalists led by the RGISC. Nevertheless, it faces immense challenges, including water disputes, national security, and local resistance in Laredo. In other words, many of the legal challenges presented in this article can only arise if many stars align in the midst of a volatile political and economic climate.
Despite these challenges, former Ambassador to Mexico Antonio Garza, a native of Brownsville currently based at the law firm White & Case in Mexico City, gave the example of the successful Cross Border Xpress that took 25 years from concept to reality. This project faced significant regulatory and national security hurdles because it allows passengers to park in one country and fly out of another country without leaving the airport.
“Amazing things are possible in the face of long odds where the private sector and the people living along the border stay focused, never faltering in the belief that future generations will be better for their efforts. So, si se puede!”
Endnotes
1 Karlis, Michael. “Eagle Pass border crossing reopens after sudden closure Monday.” San Antonio Current. Nov. 28, 2023, available at: https://www.sacurrent.com/news/eagle-pass-border-crossing-reopens-after-sudden-closure-monday-33187773
2 Vela, Jorge A. “Laredo regains status as No. 1 port in US.” Laredo Morning Times. Apr. 9, 2023, available at: https://www.lmtonline.com/local/article/laredo-top-trade-port-us-feb-2023-surpasses-la-17886134.php
3 Nixon, Dennis (2021). Common Sense Border Management Solutions (White Paper). International Bank of Commerce, available at: https://www.ibc.com/ResourceFiles/pdf/common-sense-border-management-solutions-august-2021.pdf
4 Id. at 3.
5 Baddour, Dylan. “Drought Spurs a South Texas Water Crisis.” The Texas Observer. Aug. 15, 2022, available at: https://www.texasobserver.org/mexico-drought-south-texas-water-crisis/
6 Texas Office of Attorney General. (2022, November 3). Texas, New Mexico, and Colorado Announce Agreement After Years of Dispute Over the Lower Rio Grande Valley [Press release], available at: https://www.texasattorneygeneral.gov/news/releases/texas-new-mexico-and-colorado-announce-agreement-after-years-dispute-over-lower-rio-grande-river
7 Sanchez, Rosario et al. “Binational reflections on pathways to groundwater security in the Mexico-United States borderlands.” Texas A&M University School of Law. November 2021, available at: https://scholarship.law.tamu.edu/cgi/viewcontent.cgi?article=2508&context=facscholar
8 Nick, Stacy. “Border war: CSU policy expert says DOJ case against Texas is clear thanks to historic treaty.” Colorado State University. Aug. 17, 2023, available at: https://libarts.source.colostate.edu/border-war-csu-policy-expert-says-doj-case-against-texas-is-clear-thanks-to-historic-treaty/
9 Pskowski, Martha. “Tensions rise in the Rio Grande Basin as Mexico lags in water deliveries to the U.S.” Texas Public Radio. October 11, 2023, available at: https://www.tpr.org/environment/2023-10-11/tensions-rise-in-the-rio-grande-basin-as-mexico-lags-in-water-deliveries-to-the-u-s
10 Id.
11 Id.
12 Id.
13 Supra note 5.
14 Baddour, Dylan. “Laredo Confronts Drought and Water Shortage Without a Wealth of Options.” Inside Climate News. August 18, 2022, available at: https://insideclimatenews.org/news/18082022/laredo-confronts-drought-and-water-shortage-without-a-wealth-of-options/#:~:text=Last%20year%2C%20Laredo’s%2050%2Dyear,no%20groundwater%20of%20its%20own.)
15 Supra note 9.
16 Supra note 3.
17 Laredo is the only major southern border city without a wall, after activists and local leaders defeated the Trump Administration’s efforts to do so back in 2020. Burnett, John. “Unlikely Allies Band Together In Laredo To Oppose The Border Wall.” National Public Radio. May 26, 2020, available at: https://www.npr.org/2020/05/26/861401372/unlikely-allies-band-together-in-laredo-to-oppose-the-border-wall
18 The Department of State issued a Presidential permit, effective August 3, 2010, authorizing Otay-Tijuana Venture, L.L.C., to construct, operate, and maintain an international pedestrian bridge called San Diego-Tijuana Airport Cross Border Facility near San Diego, California, at the international boundary between the United States and Mexico. In making this determination, the Department consulted with other federal agencies, as required by Executive Order 11423, as amended. https://www.federalregister.gov/documents/2010/08/10/2010-19725/issuance-of-a-presidential-permit-authorizing-the-construction-operation-and-maintenance-of-the-san
19 Order Granting Plaintiff’s Motion for Preliminary Injunction; United States of America v. Greg Abbott and the State of Texas, No. 1:23-CV-853-DAE (September 6, 2023).
20 Unprecedented US$81 million investment to expand and improve the wastewater system in Nuevo Laredo, Tamaulipas,” North American Development Bank, August 4, 2023: https://www.nadb.org/news/unprecedented-us81-million-investment-to-expand-and-improve-the-wastewater-system-in-nuevo-laredo-tamaulipas
21 “Groundbreaking Cross-border Airport Terminal Linking Tijuana to San Diego Breaks Ground,” The National Law Review, July 22, 2014: https://www.natlawreview.com/article/groundbreaking-cross-border-airport-terminal-linking-tijuana-to-san-diego-breaks
