Western Water Laws, Regulations, and Policies Assets or Liabilities to New Mexico’s Future? Dr. M. Karl Wood Director Water Resources Research Institute New Mexico State University

Beginning Assumptions: Water and wildlife belong to the states Water is not water until it gets into a conveyance system such as a stream, pipe, or ditch Federal laws trump state laws The Supreme Court may not always be right, but it is always supreme

“Riparian Water Law” Based on “Common Law” of England Land must touch a stream Based on equal share and reasonable use Right exists whether water is used or not Because of ample water, no reason to sell or transfer water rights Best adapted to wet eastern U.S. states

Primarily Riparian With many statutes for users of large quantities

Primarily Riparian All new uses by administrative permits

“Prior Appropriation Water Law” Roots in three western civilizations: 1. Spanish Conquistadors (Acequias) some yrs old 2. California miners (about 1847) 3. Utah Mormons (about 1847)

“First in Time, First in Service” or “First Come, First Served” First to file! State owns the water, private person or company has right to use it. Land does not need to touch stream Can sell and transfer water rights Water must be put to “Beneficial Use” If water is not used, the right can be lost Water regulated by State Engineer State Engineer can make a “Priority Call” Best adapted to dry western U.S. states “Prior Appropriation Water Law”

Example Users Farmer 1: 900 acre-ft (1906 filing date) Farmer 2: 750 acre-ft (1903) Farmer 3: 300 acre-ft (1979) Farmer 4: 450 acre-ft (1936) Village 5: 2600 acre-ft (1978) 5000 total Year 1 Available: 6000 acre-ft Year 2 Available: 3000 acre-ft Who gets water? Yes! No! Yes! Only 900

Mostly Prior Appropriation – Some Riparian Law “California Doctrine”

Simon-Pure Prior Appropriation Law “Colorado Doctrine”

“Federal Laws Trump State Laws” “Winter’s Doctrine” –1908 –Milk River in Montana –Indian reservations are entitled to the water needed to create a permanent homeland –Supreme Court ruled in favor of tribes giving them a “Reserved Right” ? ?

“Federal Laws Trump State Laws” “Endangered Species Act of 1973” –Allows federal government to secure water for endangered species from states and the private persons or companieswho have rights to it? –Federal judge in Albuquerque has ruled that non-native waters from the San Juan-Chama project can be secured by federal government to protect the endangered Silvery Minnow ?

“Federal Laws Trump State Laws” “U.S.-Mexico Treaty of 1906” Gives priority of the Rio Grande to lands below Elephant Butte Reservoir “The only river I ever saw that needed irrigating.” Will Rogers

“Federal Laws Trump State Laws” “U.S.-Mexico Treaty of 1906” This means that the lower Rio Grande has senior rights over: –Northern acequias –Cities (like Albuquerque and Santa Fe) – Northern irrigation districts

Characteristics of the 1906 Treaty Recognized that an average of about 750,000 acre-ft reach Elephant Butte each year Division based on acreage in irrigation in 1906 In an average or above-average year, Mexico gets 60,000 acre-ft

Characteristics of the 1906 Treaty Texas gets 43% of remainder New Mexico gets 57% of remainder In below average years, Mexico get reduced proportionately Elephant Butte holds about 2 million acre-ft or about a 3 year supply when full

Today’s Situation The Juarez Irrigation District City of Juarez & others about 2 million people The El Paso Irrigation District City of El Paso & others about 1 million people The Elephant Butte Irrigation District (southern New Mexico) Las Cruces & others about 200,000 people

Today’s Situation continued… Mexico wants more Rio Grande water! –Claims that it violates the Kyoto Protocols –Claims that it violates the Helsinki Accords –Claims Mexico could help better keep it citizens in Mexico if it had more water along the border –Tries to put shame on the U.S. Neither signed by U.S.

Today’s Situation continued… Texas wants more Rio Grande water! –Claims division should be based on today’s human population, not irrigation acreage of 1906 New Mexico likes the present division! –Should not have to compensate Mexico and Texas because they couldn’t control their own growth

Today’s Situation continued… City of Juarez – 100% from wells of uncertain future Juarez Irrigation District - 40% from Rio Grande –40% from City of Juarez sewage water (primary treatment) –20% from wells (poorest quality) Mexican federal law allows taking water from agriculture for municipal uses City of Juarez will most likely treat river water for municipal use in future

Today’s Situation continued… City of El Paso uses 50% well water and 50% river water El Paso Irrigation District has monopoly in selling river water to City of El Paso City of El Paso would like to get cheaper river water from New Mexico farmers (This would break the monopoly) El Paso has even bought a 300 acre farm in southern New Mexico

Today’s Situation continued… New Mexico water right holders were forbidden to sell or transfer their water rights to Texas by the New Mexico State Engineer The U.S. Supreme Court declared this violated federal interstate commerce laws (Nebraska v. Colorado 1981)

Today’s Situation continued… City of El Paso’s desire to obtain New Mexico farmers’ water is being delayed by a state law passed after 1981 that required applicant to show these factors: 1.The supply of water available to the state of New Mexico 2.Water demands of the state of New Mexico 3.Water shortages in the state of New Mexico 4.Feasibility of transport 5.The supply of water available in state to where New Mexico water is to be transported 6. The demands placed on the applicant’s supply lack of an adjudication

Today’s Situation continued… Question: What is an adjudication? Answer: An official title after a hydrologic evaluation by the State Engineer, negotiations with the water right claimant, and declaration by a state judge After U.S. Supreme Court decision, the New Mexico State Engineer dragged his feet for many years in completing an adjudication on the lower Rio Grande N.M. State Engineer started adjudication process on lower Rio Grande after Arizona got tired of waiting, sued, and won the assistance of a federal judge to make declarations on the Gila River N.M. State Engineer decided it was better for his office to conduct an adjudication than relying on a federal judge to do it for the rest of New Mexico Interstate transfers also being delayed by lack of adjudication

Today’s Situation continued… Adjudication in the Mesilla Valley started a few years ago near Radium Springs Not expected to reach the south end of the Mesilla Valley near the Texas border for a decade or more City of El Paso can’t wait a decade for new water so is building the largest inland desalination plant in the country (30 million gallons per day) that will use brackish groundwater in east El Paso It also plans to import groundwater from basins up to 150 miles east of El Paso

“Pecos River Compact” Gives priority of the Pecos River to lands below Brantley Dam Lower Pecos River has senior rights over northern acequias, cities (like Roswell), and northern irrigation districts Delivery to Texas based on one year’s flow (1948) which happened to be an above-average year (about 80,000 acre-ft) “Federal Laws Trump State Laws”

Pecos River Compact continued… Delivery to Texas is high in salts from the naturally occurring salt deposits in the Malaga Bend just before the state line Texas farmers using salty Pecos River water from New Mexico could be bought

Pecos River Compact continued… Presently State Engineer has bought water from Carlsbad farmers to meet delivery obligations to Texas costing $ millions each year Why? State Engineer has not figured out how to make a priority call as most priority calls would be futile and affect areas of high population like the City of Roswell Texas uses New Mexico’s desire for fairness in the Pecos River Compact as leverage to opening what it thinks is the unfairness of the 1906 treaty on the Rio Grande

Future Sources of New Water Desalination – 75% of New Mexico’s groundwater is brackish Conservation from better land management –Xeroscaping in cities –Improved irrigation efficiency –Forest harvest

Obstacles to Forest Harvest Knowledge Money Endangered Species Act Clean Water Act National Environmental Policy Act (The healthiest forests in New Mexico are on tribal lands that are not subject to these three federal laws that are meant to protect the forests)

Conclusions Western water law is: 1. Very complicated 2. Constantly evolving to solve inequities and present needs 3. A huge battle between state and federal rights 4. Long on lawyers and short on science

This is a sunrise, not a sunset! A new day! “Smooth seas do not make skillful sailors” African proverb