On October 9, 2025 the President of Mexico proposed a bill to Congress that creates the General Waters Act and reforms different sections of the National Waters Act.

The bill’s end is to improve the water administration and regulate its use, in order to avoid the water monopolization and establish hydro justice, eliminate the transmission regime of water’s rights to end speculation, incorporate rainwater regulation and its implementation in the Mexican states, and introduce a new civil and vulnerable groups model involvement in the decision making, and other aspects that we do not abord in this analysis.

Rainwater and its regulation

A novelty the bill introduces is the rainwater regulation. In other words, is not the rain handling but the runoffs generated by it what the bill wants to managed. This type of water is not expressly contemplated in article 27 of the Mexican Constitution, so it cannot be considered a national resource that can be controlled by the federal government, but it can be inferred that the contribution or reduction of the runoffs in national waters is the legal objective of the bill, meaning, the keeping of a national waters’ stream as a protected good.

One might ask whether, given the enumerated powers by our Constitution, we can assume in who relies the power to regulate rainwater. Congress could clarify this authority if they recognize that rainwater cannot be regulated by the federal branch, according to the limit stipulated by article 73, section XVII of the Mexican Constitution.

Our current law already answers this need to protect the national water bodies, through the effluents, rivers and streams that flows and discharges in them. The law regulates these as runoffs that comply whit a specific morphology (at least 2 meters of width and 0.75 meters of depth) which drains its waters in a national body of water. They are considered a national public good, because of the level of impact in the quality and flow in the national waters.

The proposed statute only establishes the requirement to obtain an authorization to capture rainwater not related to domestic use (reform of the article 82 Bis of the National Waters Act). Furthermore, the bill sets as its goal the avoidance of any obstacle to the flow of rainwater into national waters, by preventing any human interception before the rainwater reaches to the national body. However, this statutory provision is not very clear, because not all the rainwater drains in national water bodies; many of the rain drains in state or private waters. Additionally, the rain interception is not the only factor that can reduce the flow of national waters, the increase of natural vegetation, for example, can also be a factor to retain the volume of rainwater caused by run off.

It is appropriate to question the proportionality of the policy, if it does not guarantee the end it wants to achieved. The expected benefit —the supposed increase in the flow of national water bodies —, will not have any causal relationship, and the excessive burden for the people, by requiring rainwater’s authorizations, will produce more harm than it seeks to prevent.

This authorization requirement (and the respective payment of fees) for the water capture that has not flowed off to the federal domain yet, constitutes a regulatory overreach that generates undue burden for the governed; in other hand, the pursued goals to protect national goods and the environment, are already regulated in the current law, by the effluents’ protection and the Environmental Impact Assessment for hydric projects at the different government levels.

So, as we shall see later, the Reclaimed Waters Fund intended to be established, will complicate the measurement of the rainwater policy’s success in increasing available volumes of water. The fund would undermine the average availability measurement model, since it stipulates to not count the volumes effectively recovered in favor of the water body.

Rainwater can represent an asset, but its regulation must be based on a government’s duty to capture, conduct, value, use or filter it with quality for urban public spaces and private entities; the governed should only be constrain to do the same, if they wish to capture it too. These basic rules must be followed to protect human health, if the end is the consume of the water, and the preservation of ecosystems, soils, and aquifers if the rain flow offs.

However, the bill chooses not only to regulate rain catchment, but imposes some hidden obligations, such as a supposed “state’s support”, whom are constrained to regulate the installation of rainwater harvesting systems for domestic or urban purposes. The provision implies an implicit duty on the people, by establishing as a principle of proportionality, that the fiscal appraisal of the property constitutes the maximum enforceable investment for the rainwater system. In other words, the investment will not be freely determined by the individual, but imposed by the authority’s valuation with a limit set based on the property’s value. The wording of the articles leaves much to be desired if this is not the legislator’s intention, as it appears to be, because it seems to be that the real goal is the transfer of public water services—which is a duty of States municipalities and Mexico City—to citizens and housing developers, in accordance with the obligation to satisfy the water demand of their real estate projects. Therefore, the use of the word “support” in the new General Waters Act, results as misleading if it is accompanied by economic impositions to assure a right that the government is responsible for guaranteeing.

Furthermore, it is important to mention that the measure is inoperable in a country with Mexico’s climatic diversity. In rainless areas, water demand could never be satisfied. For example, on a 200 m2 plot of land with a 50 mm annual rainwater capture, such as parts of northern Sonora, 10,000 liters can be catch; when according to CONAGUA data, a person needs 66,430 liters per year to live. Imposing this burden on the governed may end up not only denying access to water in those places where the government abandons its public service duty, but it can also restrain the right to a dignified and decent dwelling, by depriving the access to quality public services and forcing private individuals into imposed shortage.

These provisions should address structural problems, such as: (i) imposing the government capture, conduction, treatment, valuation, use or quality filter of rainwater in public spaces; (ii) financing or investing in the separation of the drainage network into blackwater, greywater, and especially rainwater networks to maintain their value and quality; (iii) establish criteria for capture, conduction, treatment, valuation, use or filter for private rainwater systems.

Not every transmission implies speculation. The risk in the industry’s continuance

On the other hand, the bill seeks to “eliminate” the free transfer of concession titles between private parties. The reason for this is that some transmissions resulted in simulations, in which the modus operandi consists in informing the authorities the free transferring of the concession titles, when behind doors private parties agree the sale of the water title, creating a black market which the bill seeks to abolish it. This situation allows speculation without rules beyond those set by the seller and buyer, thus incentivizing water hoarding. While the diagnosis of the problem is accurate, the proposed solution might not be as effective as anticipated.

For example, there are cases where the transfer or assignment of the concession title is essential and cannot be considered either monopolization or speculation, such as in the case of mergers and spin-offs, the sale of a business or real estate, or a need to change the ownership title when none of the concession’s characteristics are needed to be changed. In these instances, it is necessary—and even a vested right—to guarantee the continuity of the volumes to exercise the right to work, do business and to housing.

Absolute prohibitions could clash with the principle of proportionality, by establishing a restriction on rights without demonstrating a correlative benefit for the community. In the case at hand, the hoarding and speculation of an asset as vital as water is a valid policy objective, but profit is not sought in all cases involving concessioned water. The bill will limit the corporate and commercial rights of many companies and businesses, removing the value provided by the operational guarantee of a concession that can be transferred with their own enterprises.

Companies that currently base their production on a water concession could lose all possibility of including those water volumes and their title, that protects them, as a transferable vested right, limiting the continuity of their projects, plans, and investments; because it would keep an input like water from being considered in changes of corporate ownership or control. An alternative to address these bill’s ends and objectives could be the allowing of changes in the concession ownership, but the restrain in the permit use, the water body concessioned, the water volumes allowed or the extraction point, in order for the assignment/transfer to proceed. This would guarantee the end of any water speculations while permitting the normal operations of businesses.

 

A non-regulated fund could create a serious problem

The problem is exacerbated by the new water bank/fund model proposed by the bill. This main conflict lies in the impossibility of adding the water volumes that are recovered, for the count of the water body’s Average Annual Availability. This measurement unit can be understood as the average annual volume of runoffs or infiltrations in a basin, minus the volume already committed. So, even though the water is physically recovered and is no longer being exploited, it would not be recognized as part of the water system’s availability. This omission could lead to serious consequences in the formulation of public policies, since the Average Annual Availability (DMA as is it known in Mexican law) is an essential technical criterion for resource planning and allocation.

For instance, according to the current law—which is its wording is not proposed to change—availability must be considered for granting new water concessions, for staying or reducing existing titles (when there is a risk to water availability for human consumption), and for establishing bans. Therefore, if these decisions are based on an artificial availability that does not reflect the uncommitted volumes in the water body, injustices could be committed, and rights could even be reduced or cancelled due to a water stress that exists only in numbers.

Another function that could be compromised is water planning and programming, which they not only define the water availability, but also are the source for making policy decisions, measuring their effectiveness, and fulfilling their purpose, as established by law in accordance with article 13 Bis 3, section XVI of the current National Waters Act.

Moreover, the fund proposal only addresses its creation, leaving its operation and functioning rule to the regulatory sphere. It is important that Congress establishes the operational statutes for this fund, making it clear how water volumes will be assigned and under what criteria. Currently, the concession or assignment of volumes follows the same principle as in public goods procedures: first in time, first in right. Changing this principle, established in the current act, for one whose content will be defined by the executive branch in his regulations, postpones the possibility of analyzing the proportionality of the new concession system and assignments until a future time. In addition, by lacking a series of guiding principles for the policy decision, the allocation of national waters may be left to the executive’s discretion, and volumes may be assigned based on criteria such as the number of voters, the competitiveness of the party in power, approval ratings, or any other criterion distinct from those pursued by the law.

As well, the bill also fails to clarify the reassignment’s rules, or the elements that CONAGUA must take into account when issuing its resolution on the matter, leaving all these issues to be determined by executive’s regulations or the authority’s discretion. Although it remains to be seen how the fund will be implemented, or if it undergoes changes in the legislative process, which could de facto suppress the water black market, an alternative without objective operational criteria, or at least without legislative permanence (as the system is only left with the statues issued by the executive), will remain at the discretion of the authority in power and their willingness to stop speculation and the monopolization of water volumes.

 

Involvement and access to information in the water management

Another aspect to consider in the General Water Act bill is related to enquiry and access to environmental information. Despite the text aiming to update the legal framework in water matters, its institutional design still fails to fully align with the international standards recognized by Mexico through the Escazú Agreement, the International Labour Organization’s Convention 169, or with constitutional obligations regarding citizen participation, transparency, and enquiry.

The bill broadly incorporates “social and citizen involvement” into water management, but it does so more as an enunciative principle than as a right with effective mechanisms to exercise. Article 38 of the act, for example, only stipulates the promotion of inclusive and transparent participation mechanisms, mentioning the enrollment of vulnerable sectors in the planning and evaluation of water policy. However, from the perspective of the Escazú Agreement, this provision is insufficient, as it does not establish stages, procedures, or binding obligations that guarantee effective participation from the earliest moments of the decision-making.

In a similar way, article 39 addresses access to environmental information under equitable conditions, but without specifying the means, deadlines, or differentiated measures to guarantee it. Articles 5 and 6 of the Escazú Agreement say that States must adopt updated, accessible information systems under the principle of maximum publicity. In the case amparo en revisión 544/2022, Mexican Supreme Court reaffirmed that the State has the obligation to generate and diffuse public and accessible environmental information; a duty that is not met, due to the lack of clearly delineating the procedures to request this information, and the null consideration of technical assistance for sectors facing structural access barriers.

In other hand, article 37 of the General Waters Act alludes to dissemination, education, and collaboration with academic institutions, but its wording lacks the force required by article 10 of the Escazú Agreement: strengthening capacities and promoting the creation and training of social and community actors, as a condition for exercising the rights of access to information, involvement and environmental justice. Without training programs, resource allocation or inclusive measures, participation is reduced to a right without a remedy.

Regarding indigenous enquiry, the contrast with the constitutional framework is clear. Article 2 of the Mexican Constitution and the Supreme Court’s binding criteria 34/2025 recognized that indigenous query must be knowledgeable, culturally appropriate and conducted in good faith, especially when decisions may affect indigenous communities or historically vulnerable groups. The bill, by lacking the regulation of a particular procedure, leaves to uncertainty the way in which this right can be enforce in hydric cases. However, the Supreme Court already stated that the absence of law cannot be an excuse to not uphold the right, but it is important that the proposed act recognize the scenarios that would impose the mandatory enquiry.

In a nutshell, the bill does not stablish specific query mechanisms in hydric matters, nor does it expressly refer to other environmental laws’ statements. This omission creates a legal gap that could difficult Mexico’s compliance with international commitments and the constitutional right of involvement. So, it is necessary that the act clearly defines the procedural route for enquiry on water issues: either through a unique procedure with stages, deadlines, and differentiated measures for vulnerable groups, or by expressly referring to mechanisms provided in the General Ecological Balance and Environmental Protection Act, particularly those related to the Environmental Impact Assessment.

An adjustment of this nature would allow a standardization in the legal criteria, the avoidance of legal overlaps, and the strengthening of the institutional design of the water sector in the country. Also, it would represent a substantive step towards the effective fulfillment of the Escazú Agreement and the consolidation of knowledgeable, transparent, and truly influential citizen enrollment in the management and use of water in Mexico.

Franco Lammoglia Ordiales

María Fernanda Hernández Garibay Carillo

Jorge Manuel Rodríguez Moreno

 

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