Mexico’s water laws feed systemic crisis

Photo of a man serving fresh water from a well in the town of Ímuris, Sonora in 2023. A train built by the Mexican army is threatening local supply. Photo: Dawn Marie Paley.

Opinion • Sergio Alejandro Pérez Muñoz • July 11, 2024 • Leer en castellano

Mexico is undergoing a severe water crisis. Conflicts over water that have erupted in recent years are proof of this. There have been protests in the northern states of Nuevo León, Sonora and Baja California and also in the Bajío region, such as what occurred in Querétaro. In central Mexico, there are water shortages in the Valley of Mexico and ongoing issues in the Iztaccíhuatl-Popocatépetl region of Puebla. 

Battles between farm worker communities and agro-industrial landowners, who disrupted the collection of seasonal rainwater in the Oriental-Libres watershed, recently came to a head. On June 20, Veracruz state police attacked a demonstration of water defenders in the town of Totalco, Perote, killing two and disappearing an unconfirmed number of people.

According to monitoring carried out by the National Meteorological Service, as of June 30, there is a degree of drought in 85 percent of Mexico's municipalities and extreme drought in 25 percent of Mexican states. Government statistics indicate that nearly five million people lack access to drinking water, although that number is surely an underestimate. 

Access to water is unreliable for millions more and much of what they can access is polluted. Most of Mexico's water is contaminated. Victor Manuel Toledo, the former Secretary of the Environment, characterized six watersheds as examples of “environmental hell.”

To make matters worse, control of Mexico’s water reserves is dominated by corporations.

The neoliberalization of the Water Law 

The National Water Law (LAN), which defines the prevailing legal framework, has aggravated the crisis and hindered the search for solutions.  

Passed in 1992, it is a fundamentally neoliberal law. It was among the reforms made during Mexico’s dramatic neoliberal economic opening and considered a prerequisite for the signing of the North American Free Trade Agreement in 1994. It allows national and transnational corporations to participate in the planning and implementation of water policies, making them peers with communities and household users. 

The LAN created a water market in Mexico. Before 1992, Mexican water legislation  distinguished between water concessions and water allocations. Concessions were for the commercial use of water, such as in rural irrigation and industry. Allocations were made to municipalities, which were charged with supplying drinking water to their residents. 

Concessions were subject to higher royalty payments, they were harder to obtain, and there was a greater risk that they could be revoked. Allocations had lower royalty payments and over time came to be considered as water use in the national interest, which made revocation less likely. Allocations, which were not made to corporate entities, hindered the privatization of drinking water and sewage services and set up a system of fixed fees for daily domestic water use that was more affordable to communities and families.  

Article 20 of the LAN did away with this dual regime by establishing an equivalence between allocations and concessions. The only difference between them that the law maintained is that allocations are not transferable, whereas concessions can be bought and sold. The law does not limit the quantity of concessions that a single party can acquire.

Today the LAN stipulates that all water users operate under the same use designation: the concession. They are also subject to the same scheme of payment for water, as established by the Federal Law of Rights (LFT). In practical terms, this sets out a regressive cost scheme for water consumption.

Water politics from above

Since the passage of the LAN, the National Water Commission, a decentralized body of the federal Ministry of the Environment, has governed the country’s water. It does so through Hydrological Watersheds and Watershed Councils, which has promoted further decentralization. 

Watersheds are a regional division based on the natural relationship that reservoirs, streams and other bodies of water have with one another. They can be located in one or two or even more states. There are currently 757 watersheds grouped into 37 hydrological regions. 

Watershed Councils are designed to provide consultation, coordination, and advice on the state and use of water in watersheds. A mix of federal officials, state and municipal governments, as well as users, communities, and members of social organizations make up these bodies.

Regionalization and user participation has privileged the interests of the most powerful private users—companies, business organizations and civil societies. Although there was an attempt to foster the appearance of the participation of domestic users, neighborhood and rural communities, their real participation was blocked. 

The thirst of extractivism

The LAN does not regulate the appropriation and pollution of water by mining companies. Since the early 1990s, national and transnational mining companies have acquired an increasingly larger number of concessions. 

While carrying out exploratory work, mining companies often access subterranean water deposits, which they can use in a predatory and polluting manner for mineral extraction and exploitation. Legislators amended the LAN in May 2023 to include provisions related to the mining industry’s use of water, but the changes focused solely on monitoring.

For more than 30 years, the LAN has encouraged the concentration of water in the hands of large private companies. Wilfrido Gómez and Andrea Moctezuma stated in a study that three types of entities acquire water concessions: public users, who have titles or allocations focused on the provision of water for domestic and urban consumption; social users, like ejidos (communal land owners) and communities with water concessions; and large private users like companies and individuals that consume huge amounts of water for profit-oriented activities. 

According to Gómez and Moctezuma, this last group includes "966 companies, 1,537 individuals and 801 civil associations." They hold 22.3 percent of all water concessions in Mexico. This means 1.1 percent of entities with water concessions in the country control more than 20 percent of the country’s water. 

Within this group of private water users, there are corporations dedicated to industrial production and service activities, such as Kimberly Clark, which produces cleaning products; the company Bebidas Mundiales and Bepensa (FEMSA Group), which bottles Coca Cola and other soft drinks and the Canadian mining company Goldcorp, which carries out toxic, open-pit gold and silver mining. 

There are also companies such as Grupo Mexico and Comexhidro, which tried to divert the Ajajalpan River in Puebla in order to generate electricity for private use. Most of the water concessioned to large private users (49 percent) belongs to large agro-industrial and agro-exporting companies, which also enjoy reduced fees for the payment of water rights. 

Water for the people, now

Mexico’s national water regime is at odds with the human right to water, which was added to Article 4 of the Constitution in 2012. In light of this, some have proposed new national water legislation. 

The outgoing federal government made the latest attempt in February. It proposed a minimalist approach to the water problem that, in principle, only reforms Articles 4 and 27 of the Constitution to prohibit concessions in areas of scarcity, in which allocations to public entities for water used for domestic needs would be allowed, but not concessions. But without profound changes to the LAN, or an entirely new law, this new legal framework would continue to impose regressive cost schemes on residents in water-scarce areas, given the equation of concessions and allocations. 

The possibility of change is now in the hands of president-elect Claudia Sheinbaum of the Morena Party, who will have enough votes to move reforms through Congress, at least in the 2024–2027 period. Her political profile suggests that she may have the will to pursue this, but her government and the Morena majority in congress will also have to contend with pressures within their coalition, which includes representatives of companies that hoard and pollute water and politicians that support them. 

There are also external pressures, mainly from U.S. capital, which considers northern Mexico the best place to relocate operations that require water. Andres Manuel López Obrador has been committed, as is Claudia Sheinbaum, to a development strategy based on nearshoring. This makes a new water law that limits the abuse of water absolutely necessary, although such a law may also discourage US investment. Factors such as these severely limit any potential solution to the water crisis that the Mexican government may put forward. 

Water issues will continue to be vital for movements defending territory and ecosystems and for communities excluded from the management of water, which have achieved greater organizational capacity and grown over past years, particularly through the National Assemblies for Water and Life.