CEC Secretariat recommends development of a factual record on Lake Chapala

In their submission to the CEC Secretariat from 15 August 2003, the Fundación Lerma-Chapala-Santiago-Pacífico, Sociedad Amigos del Lago de Chapala, Instituto de Derecho Ambiental, Vecinos de la Comunidad de Juanacatlán, Jalisco, Comité Pro-Defensa de Arcediano, Amigos de la Barranca, Ciudadanos por el Medio Ambiente, Amcresp and Red Ciudadana (the Submitters) assert that the government of Mexico is failing to effectively enforce its environmental laws conferring water management functions upon the federal executive branch and empowering the public to participate in the development and execution of the country's environmental policy and in the enforcement of environmental laws. The submission asserts that the public participated in various consultations on basin problems, but that the results of those consultations are not reflected in the implementation of plans and policies intended to maintain the environmental integrity of the watershed. It asserts further that federal authorities have allowed decisions of the Lerma-Chapala Watershed Council (Consejo de Cuenca) to take effect, but without formally adopting them so groups like the Submitters can challenge them in administrative proceedings. The Submitters also claim the Arcediano dam project on the Santiago River should not have been approved prior to addressing the pollution of the river, and assert that the authorities did not properly process complaints of Juanacatlán residents with respect to monitoring and remediating pollution of the river.

In its response, Mexico argues that the submission should be dismissed and states that part of its contents should be deemed confidential. It argues that criteria for the sustainable use of water were considered in the Arcediano dam project, in that the project was required to comply with measures set forth in its environmental impact statement and ruling. Mexico further claims that it enforced these criteria, for example by deciding to locate the dam on the Santiago River instead of the better preserved Verde River. Mexico notes that both rivers contain polluted waters. With respect to water quality monitoring in the Santiago River, Mexico asserts that it relies on the National Water Quality Monitoring Network (Red Nacional de Monitoreo de la Calidad del Agua), and that it has developed a comprehensive basin cleanup program that includes the Santiago River. Mexico asserts that it enforces the law through the Office of the Federal Attorney General for Environmental Protection (Procuraduría Federal de Protección al Ambiente—Profepa) and the National Water Commission (Comisión Nacional del Agua—CNA), and that the Watershed Councils cannot make binding decisions on behalf of the National Water Commission.

After reviewing the submission in light of the Mexican government's response, the Secretariat notified the Council that it believes that the development of a factual record is warranted. The Secretariat found that the submission raises central questions on the Mexican government's effective enforcement of the environmental laws on the operation of the Levma-Chapala Watershed Council, on whether the Watershed Council's decisions are given authoritative effect without formal action by the National Water Commission, and on what measures have been adopted to restore the balance of the Santiago River ecosystem based on the monitoring of the river's water quality. A factual record would shed light on the functions and effects of the Watershed Council and its agreements, focusing on cases referenced in the submission, and whether public participation requirements are met through the Watershed Council or other means. The factual record would clarify how the opinions of groups such as the Submitters are considered not only in the adoption but also in the implementation of plans and policies. As regards the restoration of the balance of the Santiago River ecosystem, the factual record would provide information on the measures taken in response to the anomalies found during the monitoring of river water quality, including, as applicable, information on the Arcediano dam project.

The CEC was established under the North American Agreement on Environmental Cooperation (NAAEC) to address environmental issues in North America from a continental perspective, with a particular focus on those arising in the context of liberalized trade. The Council, the organization's governing body, is composed of the top environment officials of Canada, Mexico and the United States.

The citizen submissions mechanism of the CEC enables the public to play a whistle-blower role on matters of environmental law enforcement. Under Article 14 of the NAAEC, any person or nongovernmental organization may submit to the Secretariat a claim alleging that a NAFTA partner is failing to effectively enforce its environmental law.

The Secretariat informed the Council of its recommendation on 18 May 2005, and now, five business days having passed, is able to provide public notification of the determination and to present its reasons in the public registry. The Secretariat will prepare a factual record in connection with the submission if the Council, by a two-thirds vote, instructs it to do so.

For additional information, see the Citizen Submissions on Enforcement Matters web page at <www.cec.org/citizen>.