Hayton, Robert D.

English

University of New Mexico

Volume 33 
Issue 2 The North American Experience Managing International Transboundary Water 
Resources: The International Joint Commission and the International Boundary and Water 
Commission, Part 2 
Spring 1993 
The Matter of Public Participation 
Robert D. Hayton 
Recommended Citation 
Robert D. Hayton, The Matter of Public Participation, 33 Nat. Resources J. 275 (1993). 
Available at: https://digitalrepository.unm.edu/nrj/vol33/iss2/3 
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ROBERT D. HAYTON*
The Matter of Public Participation
PRELIMINARY OBSERVATIONS
The first serious attempt to make close comparisons topic-by-
topic between the two North American binational water resources com-
missions, the International Joint Commission (IJC) and the International
Boundary and Water Commission (IBWC), offers the opportunity to
appraise the functioning of each of the bodies from various points of view.
This paper will not step back and review the historical record, or assay the
commissions' strengths and weaknesses, except in the specific target area
assigned to this working session: Is the public participation process ade-
quate? If not, how can it be improved?
Other dimensions of the commissions' roles and their historical
and legal records have been ably and amply set forth in the earlier papers.
In the interest of gaining maximum input for the annals of this meeting
from the commentators and the participants present, this author proposes
(after these brief prefatory remarks) to dispense with the customary flurry
of footnotes and focus immediately on the matters that concern those of us
interested in what is called 'public participation.' For years there have
been exhortations for strengthening on this score, directed not only to the
Canadian, Mexican, and United States governments, but also directed to
developing countries with international water resources institutions, with
very disappointing results to say the least, as part of the persistent policy
of concerned public international organizations, such as the United
Nations.
We are dealing here with two venerable, respected, and viable
intergovernmental agencies, as compared with most of the rest of the
world. That they could stand improvement should be taken for granted.
Whether the policy and institutional changes requisite to the better
achievement of our goals of more rational and responsive management of
transboundary water resources and related interests are practicable or
even wise in the long run poses, we must realize, different, difficult ques-
tions. Careful weighing of any change in the light of political reality, larger
border region issues, budgetary impacts and aptness for the purpose, is
not to be slighted. That is not to say, however, that administration officials,
*Robert D. Hayton is Professor of Law and Political Science Emeritus, Doctoral Faculty,
City University of New York. He is also former Rapporteur on international groundwaters
and a former ILA Committee member on International Water Resources Law.
NATURAL RESOURCES JOURNAL
legislators, or officers of competing agencies, no matter how vocal, should
suffice to quash advocacy of well-thought-out reform measures. If it takes
15 to 25 years to plan and build a dam, why should we believe that insti-
tutional progress should take any less? As it is said, "the times are chang-
ing." The vexatious dynamics of frontier affairs have in fact already
created pressures for more responsive, effective, and forward-looking
courses of action by the governments. This need is nowhere more clearly
expressed than in the demand for increased and more appropriate access
by concerned public and private persons to the problem assessment, plan-
ning, and implementation process. Indifferent or ill-advised politicians
may over time become persuaded. Or they can be replaced. Still, a pro-
posal must commend itself to the informed, in order to generate the requi-
site support.
With caution and with courage, let us begin to explore this busi-
ness of public participation by these two commissions: al grano.
THE CHARGE OF THE TOPIC
The. planning committee and our two distinguished principal
investigators, Professors Len Dworsky and Al Utton, have suggested that
this working session address four salient questions:
(1) Is public participation having an impact on governments? On
commissions?
(2) Is the opportunity for public participation adequate? Should
more opportunity be made available? If so, how?
(3) What publics should provide input to decisionmaking: non-
governmental organizations? local government officials? state
officials? national agency representatives?
(4) Has experience provided a new foundation for future expecta-
tions from public participants?
Before we attempt to answer those questions expressly, we can
make a general overview and comparison of the present status of public
participation as practiced by the two commissions being studied here. The
scope of the jurisdiction and the powers conferred on each commission are
deemed beyond the mission of this working session, though these may
need to be considered in an ancillary fashion, because there are some link-
ages between jurisdictional reach, authority to act, and a commission's
willingness or capacity openly to involve interested persons in its work.
These connections have, in fact, already been demonstrated in some of the
other papers presented at this conference.
[Vol. 33
THE MATTER OF PUBLIC PARTICIPATION
THE IJC AND THE IBWC BROADLY COMPARED
The International Joint Commission
With respect to public participation, the Canada/United States
International Joint Commission (IJC) is justly renowned for this aspect of
its activities. Considerable attention is paid to the informing function. The
Commission (jointly) publishes a monthly newsletter, Focus, which is dis-
tributed widely, reporting on Commission meetings, conferences (some-
times co-sponsored by the IJC), meetings of experts, articles on work in
progress (for example, on the preparation of remedial action plans for the
designated areas of concern in the Great Lakes Basin), agreement summa-
ries, and other topics of interest to the frontier region's interested public
and state/provincial and local officials. It publishes a sleek, very readable
and illustrated annual, bilingual report on its activities, made available to
the public; all its projects are listed and described; the various technical
boards (control, advisory, et cetera) are listed and described briefly, along
with their personnel. Its biennial reports to the Parties under the Great
Lakes Water Quality Agreement (and executive summaries thereof) are
similarly made available. In short there is a major 'public relations' pro-
gram, befitting the highly interested and sophisticated audiences the IJC
has on both sides of the border.
Seminars, workshops, and panels are conducted by technical
staffs or others with IJC participation. Commission hearings are publi-
cized in advance in order to encourage attendance and participation by
interested individuals and groups, of which there are many, especially
concerning the water quality and water levels problems of the Great
Lakes. This is a two-way street: the Commission is informed of diverse
views and needs, and in turn, its people inform the public about plans and
progress on projects.
The IJC's special boards, which are the chief vehicles of the Com-
mission in the field, are made up of engineers, hydrologists, and other
technical experts, drawn usually in equal numbers from each country,
often state and provincial personnel. This is a very important 'public par-
ticipation' by the technical people involved locally in dealing with the
problem that is under the purview of the particular board. These boards
and special task forces make reports and studies addressed to the Com-
mission, which are also published.
One recent example of the unflagging commitment in this area is
worth mention. As Phase II of the IJC Reference Study into ways to allevi-
ate problems associated with fluctuating Great Lakes/St. Lawrence River
water levels, the Commission's Study Board sent out to a mailing list of
persons with demonstrated interest, a letter saying the Study Board wel-
comes a public comment on its Plan of Study. Recipients were invited to
Spring 1993]
NATURAL RESOURCES JOURNAL
continue their involvement by offering opinions on that Plan; the com-
plete 24 page Plan (with appendices) would be sent on request (French or
English). Responses were to be "recorded and included with questions
and concerns from other interested citizens and groups that will be regu-
larly tabulated and conveyed to the 11-member Study Board and taken
into account in their deliberations."
Finally, the IJC is expressly directed in its governing treaty, with
respect to any inquiry, proceeding or question within its jurisdiction, that
"all parties interested therein shall be given convenient opportunity to be
heard." Thus, the mission of providing public participation is part of the
IJC's formal terms of reference.
The International Boundary and Water Commission
What has just been pointed out briefly about the Commission
serving its Canadian and United States border area constituencies stands
in rather stark contrast to the public participation situation of the Interna-
tional Boundary and Water Commission (IBWC). Not only is little sub-
stantive public information made available, but the tradition of hearings,
open meetings, workshops, and briefings, bringing interested persons and
groups into interaction with the Commission and its staff, is lacking. The
IBWC clearly evolved in a quite different binational context.
The IBWC nonetheless is widely regarded as one of the most suc-
cessful international water resources commissions in the world, for other
reasons. Its reputation stems in particular from its engineering skills, its
efficiency, and its quiet mediation proficiency. It has always preferred to
work out of the spotlight. But there is no institutionalized public review of
the Commission's operations or public participation generally. It is autho-
rized to obtain public input as it deems necessary, but it is not required to
provide public participation. The United States commissioner in practice
informally does confer with border-area congressmen, and certain high-
level officers of the involved states and water resources agencies.
The Commission feels that its responsibility is to the respective
federal governments, and not to the border area people. This is particu-
larly true of the Mexican national section. Those are the constituencies that
it must please and respond to. It has worked effectively in 'private' carry-
ing out its public mission- some would say "in splendid isolation." Tra-
ditionally, information and data, plans and studies were not available so
that there could be informed public reactions or expressions of views.
This situation has begun to change, now that environmental con-
cerns have intruded. The United States National Environmental Policy
Act, and the United States Environmental Protection Agency are very
much part of the new scene. Impact statements are required now by gov-
ernments' legislation, which will finally bring some public scrutiny. That,
however, is not the public participation that meaningfully involves all
[Vol, 33
THE MATTER OF PUBLIC PARTICIPATION
interested persons throughout the Commission's labors and under-
takings.
The 1983 La Paz Agreement between the United States and Mex-
ico on Cooperation for the Protection and Improvement of the Environ-
ment in the Border Area, and the subsequently agreed annexes thereto,
als6 pose a disquieting challenge to the IBWC's accustomed reactive func-
tioning. Although the fine work of the IBWC is acknowledged, and the
Commission is regarded as part of the Agreement's institutional machin-
ery, new forums will now encroach on the Commission's jurisdiction. This
may result in forcing the IBWC 'out of its shell,' at least partially. The sys-
tematic dissemination of some information and a more active role in
multi-agency public studies are possible, even though the Commission
has up to now felt comfortable circumscribed by its rather limited mission.
Without substantial, formal amplification of its terms of reference, includ-
ing the requirement of hearings and studies with participation from out-
side the conventional close circle, major opening up is unlikely.
BALANCE SHEET AND
RECOMMENDATIONS FOR THE IBWC
Based on the description above of the IBWC's grave shortcomings
in the field of public participation, it will come as no surprise that some
affirmative recommendations will here be made for institutional reform in
that regard.
In truth this matter was very closely weighed in connection with
the substantial augmentation of the provisions of what is now called "The
Bellagio Draft Treaty" on transboundary groundwaters, which constitutes
something of a 'model' agreement, but began and remained rather site-
specific to the Mexico/United States border region. Prior versions of that
draft agreement had not gone so far as to take up public participation,
though the 'commission' designated in the draft was always expected to
be, in the United States/ Mexico case, the IBWC.
Thus, Article XIII of the Bellagio Draft was elucidated as follows:
INQUIRY IN THE PUBLIC INTEREST
1. The Commission shall by general notice invite written state-
ments and information from all persons professing interest in
the groundwater-related conditions and activities in the por-
tion of the border region for which a Transboundary Ground-
water Conservation Area declaration, a Comprehensive
Management Plan, a Depletion Plan, a Transboundary Trans-
fer, or a Drought Alert or Emergency Declaration is under con-
sideration.
Spring 1993]
NATURAL RESOURCES JOURNAL
2. All submissions received pursuant to Paragraph 1 shall be
taken into account by the Commission.
3. Whenever the Commission deems that public interest war-
rants, it shall schedule and conduct hearings open to the pub-
lic in appropriate places and facilities in the border region, and
shall make and publish a record of such hearings.
4. Any person professing an interest may also petition the Com-
mission at any time requesting the Commission to schedule a
hearing or to invite written statements and information con-
cerning groundwater conditions in the border region, or urg-
ing the Commission to take a particular action under this
Agreement.
5. When deemed useful by the Commission, technical meetings,
workshops and briefings relating to transboundary ground-
water matters may be held under the auspices of the Commis-
sion or in cooperation with authorities and organizations
concerned with the welfare of the border region:
It will be noticed that a broad spectrum of public participation is
elaborated (and obviously expected) of the Commission under this article;
recognizably, some patterning after the practices of the IJC was made. It is
risky to attempt institutional transplants, but the relevant experience of
others similarly situated must at least be contemplated; in the case of the
IBWC, there was little to build on.
Nonetheless, the proposal retains the authority of the Commis-
sion to decide whether public hearings are warranted, and when technical
meetings and such would be useful. It was felt that both governments
would be more comfortable with this 'reservation' of decisionmaking,
given the IBWC's habitually seclusive way of conducting its affairs. But,
that is admittedly barely half of the recommendation. The Commission
would be obliged to invite written contributions when major decisions are
being considered; if hearings are held, they would be public and the
record would be published. Interested persons could petition the Com-
mission, which exposes it to pressures and to criticism should it not be
receptive.
One of the values of public participation is to inform the Commis-
sion about the interests and views 'out there,' including those of experi-
enced professionals and specialized private associations. State and local
governmental authorities also would be accorded the same guaranteed
access to the Commission on the same terms. Those who participate with
written contributions or make oral statements at hearings should, more-
over, feel that the Commission is endeavoring to respond to their con-
cerns. Health emergencies, as we well know, cause serious anxiety and a
clamor for somebody qualified to do something.
The public participation provisions here put forward for the
IBWC will sound far too ambitious, even preposterous to many conscien-
[Vol. 33
THE MATTER OF PUBLIC PARTICIPATION
tious students of United States/Mexican relations. At least they provide
adequately for public participation- something everyone says is increas-
ingly important.
BALANCE SHEET AND RECOMMENDATIONS
FOR THE IJC
A long dissertation here about the advantages of some reform of
the way the IJC goes about fulfilling its public participation duties would
in the end be out of place. In good conscience, at least with respect to this
particular matter, major overhaul is definitely not called for. Minor tam-
pering with the practices would not be worth the effort or be likely to yield
significant positive results. Thus, for the International Joint Commission,
the evaluation is that it is more than satisfactory. Indeed, its public partic-
ipation functions are without equal in the world. The IJC long ago
adopted and internalized a sense of mission with regard to openness,
characterized by enhanced public participation.
CONCLUSIONS AND PROSPECTS
Those who expected recommendations for change of the IJC's
practices can only be disappointed with the result of this student's evalu-
ation. On the other hand, those who are extremely cautious about attempt-
ing any institutional alterations, and rightly so, the bold proposal for the
Mexico/United States Commission will be depressing, if not shocking. It
must be remembered that the likelihood of such proposals being imple-
mented is remote, at least today. The day may be coming, however, when
the pressures for openness and participation, will no longer be able to be
denied. At that time, something akin to what has here been put forward
will be needed, if even as a preliminary "working document."
Praise has been heaped on both Commissions from many quar-
ters. Most international water commissions in this world are not in the
same league with our IJC and IBWC, even with their deficiencies and fail-
ings. These are trying times along the border, however, and there is grow-
ing demand and need for planning and initiative. Governments could
improve both Commissions' effectiveness and responsiveness, but that is
a matter of political will in the context of many competing developments
and issues, which is beyond the aspect of public participation. Through
ample public participation, however, strengthening of the Commissions
may be facilitated or made patently necessary. These Commissions are far
too useful to their governments, and to their border communities, to be
allowed to languish.
Spring 19931


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