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Rectification of the Rio Grande in the El Pasojuarez Valley
Published online by Cambridge University Press: 12 April 2017
Extract
If one were to fly along the Rio Grande downstream from the city of El Paso, Texas, one would see stretching ahead for almost one hundred miles the construction works of an artificial river channel designed to replace the tortuous and meandering course of the old river. The rectification of rivers for purposes of flood control and general stability is an interesting but not a novel application of hydraulic engineering. This particular rectification project, however, enjoys the distinction of involving an international stream. One need not suggest the number of complex questions which must inevitably arise between two States undertaking to modify in this way a common arcifinious frontier. The background and development of this international plan, together with the treaty formulated to provide for and regulate the execution of the project, constitute a most interesting and unique example of contemporary international cooperation.
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- Copyright © American Society of International Law 1937
References
1 Art. V: Malloy, Treaties, etc., I, 1107; IL S. Treaty Series, No. 207; 9 Stat. 922. Re affirmed by Treaty of 1853, Art. I: Malloy, Treaties, etc., I, 1121; U. S. Treaty Series, No. 208; 10 Stat. 1031.
2 Arts. I and II: Malloy, Treaties, etc., I, 1159; U. S. Treaty Series, No. 226; 24 Stat. 1011.
3 United States and Mexico, Boundary Convention, signed March 1, 1889: Malloy, Treaties, etc., I, 1187; U. S. Treaty Series, No. 232; 26 Stat. 1512; this JOURNAL, Supp., Vol. 5 (1911), p. 121. The Commission was given exclusive jurisdiction of all differences or questions which might arise on the boundary between the United States and Mexico along the Rio Grande and the Colorado River (Art. I). It was to be composed of two commissioners and two consulting engineers, one from each country, and such secretaries and interpreters as either Government might wish to add to its commission (Art. II). The treaty further provides that the Commission can only transact business when both com-missioners are present and that it shall sit on the frontier of the two contracting countries (Art. III). The Commission is empowered to make necessary surveys of changes brought about by force of the current in both rivers, caused by either avulsion, accretion, or erosion, and to suspend the construction of works of any character along the Rio Grande and Colorado Rivers that are in contravention to existing treaties (Arts. IV and V). The Commission is authorized to call for papers of information relative to boundary matters from either country; to hold meetings at any point where questions may arise; to summon witnesses and take testimony in accordance with the rules of the courts of the respective countries (Art. VII). If both commissioners shall agree to a decision, their judgment shall be binding on both Governments, unless one of them shall disapprove it within one month from the date it shall have been pronounced (Art. VIII). This convention was originally limited to five years, but after being twice renewed, it was indefinitely extended by the Water Boundary Convention of 1900 (Malloy, Treaties, etc., I, 1192; U. S. Treaty Series, No. 244; 31 Stat. 1936). The first meeting of the Commission took place on January 8, 1894, at El Paso, Texas, in the office of the Mexican Consul. The Commission has had a continued existence since that date, although interruptions were experienced at certain periods during the Mexican Revolution (1911-1923) due to the withholding of recognition from Mexico by the United States.
The Commission';s jurisdiction is extended to the land boundary for specific purposes, usually following an exchange of notes between the two Governments, agreeing on such procedure. In the winter of 1933-1934 the two sections of the Commission reset and repainted all the land boundary monuments between El Paso, Texas, and the Pacific Ocean. Various problems of an international nature and requiring an engineering solution have been submitted by the Governments to the Commission for investigation and report. The United States Section by Acts of Congress, approved June 30, 1932 (47 Stat. 416), and July 1, 1932 (47 Stat. 481), has assumed the powers, duties, and functions of the American Section of the International Water Commission, United States and Mexico. In this connec tion the Commission operates some fifty stream-gaging stations to assist in the accumulation of data acceptable to both Governments with regard to the international rivers of the Mexican boundary for the purpose of study and report on the equitable use of such waters. In Mexico a similar coordination of functions has led to renaming the Commission in that country the “International Boundary and Water Commission.”
Under the provisions of the Act of Congress approved August 19, 1935 (49 Stat. 660), together with executive action taken thereunder, statutory authorization is provided for the cooperation of the American Boundary Commissioner with representatives of the Government of Mexico in studies relating to the equitable use of waters of the Lower Rio Grande, Lower Colorado, and Tia Juana rivers. Provision is also made for the conduct by the American Commissioner of technical and other investigations relating to the defining, demarcation, fencing and monumentation of the land and water boundary; and construction of fences, monuments, and other demarcation of the boundary line as well as sewer and water systems and other enumerated structures crossing the international border. The act further embraces statutory authority and administrative provisions for the construction, operation, and maintenance of treaty and other boundary projects.
4 Joint surveying commissions were provided for in the treaties of 1848, 1853, and 1882, with Mexico. This latter treaty was revived and extended by subsequent treaties in 1885, 1889, and 1894, to permit the completion of the work of relocation and remonumentation which was not actually begun until 1891. For accounts and reports of the work of these commissions, see Bartlett, J. R., Personal Narrative of Explorations and Incidents in Texas, New Mexico, California, Sonora and Chihuahua Connected with the United States and Mexico Boundary Commission, During the Years, 1850, '51, '52, and '53, New York, 1854; Report of William H. Emory, Major, First Cavalry and U. S. Commissioner, Washington, 1857 (House Ex. Doc. 135, 34th Cong., 1st Sess.); Report of the Boundary Commission upon the Survey and Re-Marking of the Boundary between the United States and Mexico west of the Rio Grande, 1891 to 1896, Washington, 1898 (Senate Doc. 247, 55th Cong., 2nd Sess.).
5 See Joint Report of International Boundary Commission, dated January 15, 1895, at pp. 176–178, Vol. I of Proceedings of the International Boundary Commission, United States and Mexico, etc., Washington, 1903.
6 Convention for the Elimination of the Bancos in the Rio Grande from the Effects of Article II of the Treaty of November 12, 1884. Malloy, Treaties, etc., I, 1199; U. S. Treaty Series, No. 461; 35 Stat. 1863; this JOURNAL, Supp., Vol. 1 (1907), p. 278.
7 Ibis., Art. II.
8 Ibis.. Art. IV, which provides that “The citizens of either of the two contracting coun tries who, by virtue of the stipulations of this convention, shall in future be located on the land of the other may remain thereon or remove at any time to whatever place may suit them, and either keep the property which they possess in said territory or dispose of it. Those who prefer to remain on the eliminated bancos, may either preserve the title and rights of citizenship of the country to which the said bancos formerly belonged, or acquire the nationality of the country to which they will belong in the future.
“Property of all kinds situated on the said bancos shall be inviolably respected, and its present owners, their heirs, and those who may subsequently acquire the property legally, shall enjoy as complete security with respect thereto as if it belonged to citizens of the country where it is situated.“
9 See the following issues of Proceedings of the International Boundary Commission, United States and Mexico: Elimination of Fifty Seven Old Bancos Specifically Described in the Treaty of 1905, First Series-Nos. 1 to 58, Washington, 1910; Elimination of Bancos, Treaty of 1905, Second Series-Nos. 59 to 89, 1913; Elimination of Bancos under Con-vention of March 20, 1905, Colorado River Nos. 501 and 502, Rio Grande Nos. 90 to 131, inclusive, 1929; Elimination of Bancos under Convention of March 20, 1905, El Paso Juarez Valley, Rio Grande Nos. 301 to 319, inclusive, Fourth Series, 1931.
10 The Reclamation Act was extended to Texas, June 12, 1906 (34 Stat. 259). Construc tion of the Elephant Butte Dam in New Mexico, about 150 river miles above El Paso, was authorized by Congress and $1,000,000 appropriated for the beginning of construction work, March 4, 1907 (34 Stat. 1357). The dam was completed May 13, 1916.
11 Convention Providing for the Equitable Distribution of the Waters of the Rio Grande for Irrigation Purposes. Malloy, Treaties, etc., I, 1202; U. S. Treaty Series, No. 455; 39 Stat. 2953; this JornaeL, Supp., Vol. 1 (1907), p. 281. This treaty provides for the annual delivery of 60,000 acre feet of water to Mexico in the river at the headworks of a Mexican canal about one mile below the point where the river becomes the international boundary line. The United States Section of the Commission is charged with the execution of the terms of this treaty, which provides for the distribution of the waters of the Rio Grande as far as Fort Quitman, Texas, at the lower end of the El Paso-Juarez Valley.
12 Proceedings American Society of Civil Engineers, December, 1933, Vol. 59, No. 10, p. 1552. is Report on Rio Grande Rectification, by Special Committee of Engineers, El Paso Chapter, American Association of Engineers, June 5, 1922;
13 Report of Conditions of the Rio Grande on the Rio Grande Project, by L. M. Lawson, Engineer, United States Department of the Interior, March 10, 1925; Channel Improvements of the Rio Grande below El Paso, by Salvador Arroyo, Mexican Federal Civil Engineer, March, 1925. Statement to the United States and Mexican Governments and the International Boundary Commission on Rectification of a Portion of the Rio Grande, Juarez and El Paso Valleys, by Salvador Arroyo and L. M. Lawson, April 25, 1925; Joint Report on the Preceding Report, by Ar-mando Santacruz, Jr., and Randolph E. Fishburn, Consulting Engineers of the International Boundary Commission, May 12, 1925; Effects of Rio Grande Storage on River Erosion and Deposition, by L. M. Lawson, Project Superintendent, United States Bureau of Reclama-tion, El Paso, Texas, May, 1928; The Present Regime of the Upper Rio Grande and the Problem the River has Created in the El Paso-Juarez Valley, by Salvador Arroyo, Chief Engineer of the Juarez Flood Control Commission, May, 1928; Statement Regarding Rectification of the Rio Grande, by J. L. Savage, Designing Engineer, United States Bureau of Reclamation, November 28, 1928; Report on Preliminary Estimates, Rectification of the Rio Grande El Paso-Juarez to Quitman Canyon, by Salvador Arroyo and C. M. Ainsworth, December 1928; Proposed Rectification of the Rio Grande from El Paso-Juarez to Quitman Canyon, by R. M. Priest, Superintendent of the Yuma Project, United States Bureau of Reclamation, May 2, 1929. An acknowledgment to the above listed studies is contained in the Joint Report of the Consulting Engineers of the Commission, dated July 16, 1930, and annexed to the Rectification Treaty of 1933 (See below).
14 “The Mexican Department of Communications and Public Works and the city and county of El Paso have expended in the last few years over seven hundred and fifty thousand dollars ($750,000) to protect the cities of El Paso-Juarez and the Valley lands from floods.”(Joint Report of Consulting Engineers, dated July 16, 1930, Mexico, D. F.)
15 Minute No. 111 of the Commission, dated Dec. 21, 1928, reported on the necessity of international action, presented a preliminary plan of the necessary works, and recommended that the Commission be authorized by the two Governments to proceed to a more detailed study of the matter.
16 Annexed to, and made a part of, the Rectification Treaty. II. S. Treaty Series No. 864; 48 Stat. 1621.
17 Ratifications exchanged at Washington, Nov. 10, 1933. For text of treaty and Minute No. 129 of the Commission, but with the Consulting Engineers' Report, maps, etc., omitted, see this JOURNAL, Supp., Vol. 28 (1934), pp. 98–107. The treaty, together with all annexes, Is published in U. S. Treaty Series, No. 864, and in 48 Stat. at 1621.
18 “… beginning at the point of intersection of the present river channel with the located line as shown in map, exhibit No. 2 of Minute 129 of said Commission (said intersection being south of Monument 15 of the boundary polygon of C6rdoba Island) and ending in Box Canyon.”
19 Art. III. The proportions to be borne by the United States and Mexico are 88 per cent. and 12 per cent. respectively. See paragraphs 7 and 8 of Minute No. 129. In paragraph 12 of the minute it is set forth that costs non-proratable and “properly and practically chargeable to each Government separately” are those necessary for the purchase of rights of way and segregated tracts, as well as for changes in irrigation works.
20 In Exhibit No. 5 of the Consulting Engineers' Report the grand total cost is estimated at $6,106,500, and the proratable cost at $4,932,000, but subsequent estimates have increased these figures by a few hundred thousand dollars.
21 Art. V. Article II of the Treaty of 1884 provided that avulsive changes in the channel of the river would not produce a change in the location of the boundary line. The Treaty of 1905 provided for the exchange by the two countries, within certain limitations, of areas segregated by such avulsion and known as bancos. See supra, notes 6 and 7. In the Rectification Treaty, however, there are no stipulations limiting the individual parcels that may be exchanged, with regard to area or number of inhabitants. The requirement that each Government obtain “full ownership” of lands to be transferred obviates the necessity for any provisions looking toward the protection of private national rights or interests. With regard to areas, there is the general principle that within the rectified section of the river the total area segregated from one country must equal the total area segregated from the other.
22 Art. VI.
23 Art. VII.
24 The principle of establishing a federal zone along the frontier for protection against the smuggling of goods found its first application in the United States, May 27, 1907, with the presidential proclamation of Theodore Roosevelt which reserved all public lands within sixty feet of the Mexican border within the State of California and the Territories of Arizona and New Mexico for that express purpose (35 Stat. 2136).
25 Art. I. Minute No. 144 of the Commission, signed at Juarez, Chihuahua, June 14, 1934, presents the agreed final location of the rectified channel. Minute No. 145, El Paso, Texas, June 11, 1935, contains regulations for the elimination of areas cut from one country and to be transferred to the other. Minute No. 148, Juarez, Oct. 28, 1935, contains a de tailed distribution of the work to be performed by each of the two Governments and is entitled: “Work which each Government shall undertake on the Rio Grande Rectification Project in accordance with the Convention of February 1, 1933.”
26 Art. IV.
27 Art. VIII.
28 Art. IX.
29 Art. X.
30 Art. XII.
31 Art. XI. The annual appropriation of funds by Congress for the United States Section of the Commission for the fiscal year 1937 includes an item of $21,000 to meet the costs of this requirement on the American side. (Act approved May 15, 1936, Public No. 599 74th Congress.) It is estimated that, when completed, the maintenance costs of the project on the left bank will be about $100,000 a year.
32 Art. VI.
33 Mexican Minister for Foreign Affairs (Puig) and American Ambassador (Clark), Feb. 1, 1933. U. S. Treaty Series, cites, p. 53; 48 Stat. at 1668.
34 Mexican Minister for Foreign Affairs (Puig) and American Ambassador (Daniels), Sept. 8, 1933. U. S. Treaty Series, cites, p. 54; 48 Stat. at 1668.
35 The Public Works Administration made a second allotment to the United States Section of $500,000 for the rectification project, July 17, 1934. At present the construction work is being prosecuted with funds provided by a regular congressional appropriation of $1,200,000 for the fiscal year 1937. (Act approved May 15, 1936, Public No. 599-74th Congress.)
36 The Commission has also been engaged in the joint construction of two international flood control projects at other points along the boundary, both of which developed as the result of investigations and engineering reports by the Commission, and which were authorized by executive agreements between the two countries. These projects are located at Nogales, Arizona, and Sonora, and in the Lower Rio Grande Valley between Rio Grande City and the Gulf of Mexico.
37 Numerous parcels of land have been separated by the construction of the new channel, mapped, and transferred to the other country, under Art. V of the convention. The formal transfer of these parcels was effected by the following minutes: Minute No. 146, Juarez, Aug. 20, 1935, “Action on Parcels Nos. 141 to 151, Inclusive, Rio Grande Rectification Project in El Paso-Juarez Valley“ Minute No. 147, El Paso, Sept. 24, 1935, “Action on Parcels Nos. 1, 9, 10, 24 and 25, …”; Minute No. 150, El Paso, Dec. 13, 1935, “Action on Parcels Nos. 2, 3, and 4, …“ Minute No. 151, El Paso, Dec. 16, 1935, ”Action on Parcels Nos. 107, 108, 109, 110 and 111, …“ Minute No. 152, Juarez, June 3, 1936, “Action on Parcels Nos. 130, 131, 132, 133, 134, 135, 136, 137, 139 and 140, …”