NM water laws were crafted a century ago when water was plentiful, the population sparse, and climate change far in the future. Laws were designed to protect “first users,” not to conserve water, protect the planet, or plan for the future. We are only beginning to pay the price.
NM Water History, Law, Use and Regulation: Some Background
Over decades, New Mexico’s legislature, our Governors and their appointed state administrators have turned a blind eye to what has become a critical failure of water stewardship in our state. To understand that failure, let’s first cover some state water basics:
- NM receives its surface water from rivers that flow from north to south, and the use of that water is regulated by binding U.S. Supreme Court decisions that require NM to deliver water received from Colorado to our pueblos and tribes, to Southern NM, to Texas, and to Mexico. We have not been living up to these agreements.
- As a state, we have not devoted the resources required to obtain an accurate picture of our water use, leaving policy makers, legislators and regulators with an inaccurate picture of how much water is being used and by whom.
- Despite an arid climate and extended drought, NM continues to allocate 80% of its water to agriculture, though agriculture comprises less than 5% of the state economy. And the largest agricultural crop is alfalfa, one of the most water-intensive crops you can produce, and for pecans, which also requires even higher levels of water.
- The alfalfa we produce is fueling the meteoric growth in our dairy and cattle industry, also large consumers of water and significant polluters of our water systems.
- Our water laws and regulations are 100 years old, created during a time of relatively plentiful water resources, a sparse population, and an economy that was just emerging. These laws are entirely ill-equipped to deal with the water needs of a growing population, an expanding agricultural industry, and sustained use of freshwater in fracking operations.
- This is all compounded by climate change, which is bringing reduced snowpack, early season runoff, increased water evaporation from warmer temperatures, and erratic precipitation.
- State leadership has failed to take responsibility for these conditions or to grapple with a torturously complex water law so that we can manage our water use in the 21st century, commit to water stewardship, and deliver what has been promised to pueblos and tribes and residents of Southern NM, Texas, and Mexico.
- The good news: Governor Lujan Grisham has outlined a 50-Year Water Plan and Rep. Melanie Stansbury has been hard at work to develop legislative fixes to the problems we will lay out below. Most unfortunately the legislature failed to approve MLG’s in 2019, but Retake will be pressing hard to have it funded in 2021, along with the measures advanced by Rep. Stansbury.
Water is life. We treat it as if it is endlessly renewable resource though we know it is not. As a nation, we burn unsustainably through water and other resources to fuel our thirst for economic growth and for our conveniences, privileges, and lifestyles that are simply no longer supportable.
There are some very complex laws that need to change so that we can manage our water better. But far more important, there is a fundamental cultural shift that must occur. We must learn to do with less, much less, and we must treat our water as the precious resource it is.
We speak often of a “just transition” and of preventing “sacrifice zones.” The kinds of changes that will be required to live with less will come with a cost. If we believe in a just transition and no sacrifice zones, then part of the planning to do with less must also focus upon those who have been farming and ranching for generations. We face the need to make significant shifts in our economy and our way of life. The cost of making those change must be shared equitably: a just transition means no sacrifice zones.
The question is, do we grapple with these issues now and treat water like the invaluable resource it is, or do we kick this can down the road so our kids and grandkids have to deal with it? To be fair, if we ignore this problem long enough, no generation will be able to repair OUR damage. This is not the legacy I want to pass on to our next generation.
To develop this report, we relied heavily upon input from Norm Gaume who is the former Director of the NM Interstate Streams Commission and one of the most respected experts on water quality and water management in the state. He reviewed several drafts of the report, a report that took two weeks to develop.
We also relied heavily on two documents:
- A 2018 report, Making the Case for Change, published by engaged citizens in response to House Memorial 1 in 2017, which called for a task force to improve New Mexico’s ineffective water planning programs.
- A 2010 publication, New Mexico Water Basics, a publication of the Business Water Task Force.
House Memorial 1 (2017) was prepared by a group of water planners from across the state who were dissatisfied with water planning in various geographic regions of the state. It passed unanimously. But the executive branch of state government ignored the memorial’s specific requests. Citizens who advocated for HM 1 then wrote Making the Case for Change, naming four major problems and five general solutions. It is a good, readable primer regarding what the state and its citizens face and must do to improve the unacceptable lack of sustainability of New Mexico’s water use.
New Mexico Water Basics is a useful document because it presents necessary-to-understand basics, but it is marred by self-serving solutions of the land development industry through its “business water task force.” The publication was sponsored by the Bank of America; NAIOP, a politically active commercial real estate development arm, and the Economic Forum of ABQ. Authors include a knowledgeable economist, a water resources engineer, and a hydrologist. But the task force was chaired by the president of an Albuquerque engineering company specializing in land development and a driving force behind the massive Santolina development in Bernalillo County.
Not surprisingly, some parts of the Water Basics document are jaded, such as the statement that water should be a standardized commodity. It presents markets as the necessary solution to managing water use (not a good idea). It fails to admit that New Mexico’s water planning program never has faced the facts, which have grown much worse in the decade since the report was published. Perhaps most importantly, it fails to acknowledge that in most areas of New Mexico we are currently using substantially more water than can be sustained. And clearly, the intent was to present the argument that continued economic growth and commercial and real estate development should not be affected by water concerns.
Nonetheless, the vast majority of the publication is factual and clear. It lays out the history, regulatory parameters, and even some reasonable “next steps.” And while the report was published in 2010, sadly not much has changed in terms of developing policies or advancing actions to help NM better manage its water.
What has changed is:
- The rapid advance of climate change;
- An ongoing U.S. Supreme Court lawsuit brought by Texas and the US.. against New Mexico for failure to deliver water legally committed to Texas;
- Overuse of water throughout the state that, unless curtailed, will bring another interstate lawsuit in the near future;
- Dangerous depletion of groundwater supplies in southeast New Mexico;
- An exponential increase in the amount of water used in fracking operations and the resulting surge in volume of oil and gas wastewater that is not being safely disposed of;
- The expansion of water-intensive alfalfa production that fuels our swiftly expanding dairy and cattle industries.
The focus of what follows is to provide context, the rules of the game, and how those rules impede our capacity to manage any of the above.
When the first Spanish explorers reached the Middle Rio Grande in 1540, they found indigenous Pueblo people irrigating fields of corn, beans, and squash from community ditches carrying water from the river. Spanish colonists during the 17th and 18th centuries combined their irrigation experience, developed during the Moorish occupation of Spain, with the customs and knowledge of the Pueblos. The result was community acequia (ditch) systems governed by law – the oldest European-style water management institutions in the United States.
In 1851, the first legislative assembly of New Mexico Territory confirmed that water was primarily to be used for agriculture and they recognized acequias as part of the state’s water system. Users shared available surface and spring water. The present water code has been in force since 1907, before New Mexico was a state. After that, the state Constitution recognized pre-1907 surface water rights. The code grandfathered in all existing uses, including tribal uses and acequias, but didn’t specify who owned water rights and in what quantity. In 1931, the state adopted groundwater laws and declared that the public owned underground water.
The Impact of Climate Change and Drought
As a result of climate change and our historical overuse of groundwater and surface water, we have no choice but to proactively adapt to living with less water. If we choose to plan our adaptation and manage our water effectively, we will address the interwoven conditions creating the crisis: altered precipitation patterns, reduced snowpack with early runoff, increased evaporation, and increased water use by agricultural crops, all compounded by rising temperatures.
Together, these factors conspire to make the challenge of managing water more difficult and more urgent. When our water laws were created, climate change had not yet been conceptualized, water was relatively plentiful, the population was sparse, and the economy in need of development. What’s more, in the 80s and 90s NM experienced the wettest decades in the last 1,000 years and that is what many came to view as “normal” rainfall in NM. But NM “normal” is much closer to the kind of precipitation we’ve experienced over the past 4-5 years, something we describe as “drought.” The truth is, this “drought” is normal for our arid climate, and climate change is only going to make precipitation more erratic and drought more persistent. What we need more than anything is for the general population, legislators and regulators to begin to realize the scope and scale of our challenge and to develop the political will and the popular demand that we change our laws and our administration of them to implement statewide water conservation and live with less.
Below is a U.S. Drought Monitor map showing that as of Sept 15, 2020 almost 1/3 of the state is in extreme drought, 1/3 is in severe drought, 1/3 is in moderate drought, and less than 1/5 of one percent of the state is only abnormally dry. In other words, over 99% of the state is experiencing at least moderate drought and two-thirds is experiencing severe to extreme drought. We must move forward with a plan to manage and conserve our water resources.
How Do We Use Our Water?
The chart below is from the 2010 New Mexico Water Basics report. The state produces similar updates every five years. But those updates are not reliable because the state devotes no resources to measuring water use with any precision., But this data is the best we have to work with. With data from 2005, the report can’t possibly reflect the huge uptick in fresh water use for fracking operations, which despite protestations from the NM Gas & Oil Association, consume a far greater proportion of water than reflected in this chart. Despite this obvious failing, the important takeaway is that agriculture consumes the vast majority of our water, and public use consumes relatively little. In other words, our personal water use is not the source of the problem.
The acreage used for different agricultural products is from the New Mexico Annual Bulletin 2018, with their data coming from the USDA, National Agricultural Statistics Service
- Alfalfa (160,000 acres)
- Corn (145,000 acres)
- Wheat (105,000 acres)
- Hay (85,000 acres)
- Cotton (50,000 acres)
- Pecans (45,000 acres)
- Chiles (8,700 acres)
Clearly agriculture consumes the largest portion of our water. Agriculture in NM is now almost a $4 billion industry, a good deal of revenue for the state. But with a state economy of just under $100 billion ($94.89 B in 2017), that $4 billion represents only 5% of our state economy, yet producing that revenue consumes 80% of our water. And, as we will see, our agricultural products are largely high-water use crops, most of which fuel the industrial beef and dairy sectors.
According to the New Mexico State University’s College of Agriculture, Consumer and Environmental Sciences, in 2012, New Mexico’s top six agricultural commodities accounted for 89% of total agricultural revenues: cattle and calves ($1.751 billion), dairy products ($1.409 billion), alfalfa ($172.3 million), pecans ($110.5 million), chile ($65.4 million), and onions ($56.1 million). Pecans and alfalfa are very high-water use crops. The reason for the explosive growth in alfalfa production is its inextricable link to industrial beef and dairy industries, industries that themselves consume enormous amounts of water and, as we report below, spew pollution into our streams and groundwater.
New Mexico water law does not encourage or require water conservation. It also doesn’t have mechanisms to require agriculture to operate within the limits of our state water budget or the realities of our dwindling water resources. If the state was able to mandate water conservation and the agriculture industry reduced its annual depletions of water by just 10%, that would be enough to double the amount used by the public… or even better, contribute to meeting our legal obligations contained in the compacts discussed below.
As we noted, the alfalfa industry is driven by demand for feed from the dairy industry, an industry that experienced explosive growth in NM over the last ten to 20 years. An underlying cause of this growth is the industry’s exit from California––it determined it did not want to adhere to California’s efforts to hold the industry accountable for significant environmental impacts resulting from industrial scale dairy production. They knew it would be easier to comply with NM’s lax regulations and enforcement because they are virtually non-existent.
Since expanding its operations in NM, the industry has been in court for five years to block implementation of serious regulation that would prevent the industry’s pollution of our groundwater. Sixty percent of New Mexico’s dairies are polluting groundwater, according to the state Environment Department’s Groundwater Quality Bureau. What’s more, many dairies are located precisely in the same southeast NM counties that are already consuming huge amounts of water for fracking operations and where considerable groundwater contamination from spilled toxic waste, aka “produced water,” routinely occurs at the rate of more than two spills per day. Incredibly, these spills are not illegal in New Mexico.
The point here is that the state seems unable to regulate industries most responsible for endangering our water supplies, and this is why significant attention needs to be brought to the issue. At some point, NM needs to recognize that just because fracking and dairy produce significant revenues doesn’t mean we can continue to turn a blind eye to their individual and collective impact on a diminishing supply of water and the pollution of that limited water supply.
To achieve the kind of reduction we need in our use of water and other resources, we face formidable political opposition from the industries that exploit those resources for their profit. Just as the New Mexico Oil and Gas Association produces glossy printouts and one-pagers extolling jobs and revenue resulting from their operations, so does the NM Hay Association, which offers this view of NM on the home page of its website:
“The New Mexico alfalfa producer has turned the arid desert into an oasis for top quality alfalfa hay production. Freed from the constant worry of unkindly rain, the farmer can control irrigation, cutting and baling to meet the exact specification for premium hay.”
“Unkindly rain”? That is some seriously strange industry rhetoric.
Now let’s explore the current state of our laws and regulations to manage our use of water.
The Office of the State Engineer is responsible for administering New Mexico’s water laws to control and limit use of the state’s water. According to the NM State Constitution, all NM water is public. The right to use it is called a “water right.” The person who has water rights doesn’t own the water, but legally those rights are considered private property that can be sold or leased, with permission from the State Engineer.
New Mexico is a “prior appropriation” state, which means that the person who first made use of the water has priority and has “senior water rights.” All subsequent water rights are junior rights to this senior, in a pecking order. The State Engineer is responsible for protecting senior water uses from diminishment by juniors. This becomes very important during a drought when water flow is diminished. In practice, however, the OSE seldom intervenes in water use disputes.
Another important term central to NM water law is “beneficial use.” While not defined statutorily, beneficial use is interpreted to mean any use that is not waste. All beneficial uses are considered equal. So, for example, fracking and cooling plutonium pits are every bit as “beneficial” as watering your organic home food garden.
Waste of water is not monitored by the state, and failure to conserve is not considered waste. In theory, the state requires adherence to applicable water conservation laws in order to maintain water rights, but water conservation is not systematically measured––some would say it is not measured at all––and certainly there is no enforcement of consequences for actions that do not comport with water stewardship.
This brings us to another key NM state water law principle, “use it or lose it.” Failure to use the amount of water to which you are entitled may result in the loss of rights to the amount of that unused water. Hence the phrase “use it or lose it.”. In other words, whether you are a senior or junior water rights owner, you are required to use all of your water allocation to maintain your water rights to that amount. It doesn’t take a rocket scientist to recognize that this use it or lose it provision is a strong disincentive to reduce water use.
Among the myriad problems with NM State water law, perhaps the most egregious is this “use it or lose it” provision. Thirteen western states have the same provision, which obviously creates a disincentive for farmers to implement water conservation techniques, as they then risk losing a portion of their water rights equal to the amount of water saved. In 2017, the state of Washington introduced and passed SB 5010, which extends the period of time for required water use levels to five years. In doing so, it allows a farmer implementing water conservation techniques (e.g. drip system rather than flood irrigation) more time to arrange for the lease of its surplus water rights in a market transaction that prevents an increase in overall water use.
Another problem with the “prior appropriation” constitutional provision is that it was crafted over 100 years ago to protect those who had historically first enjoyed the use of specific water streams, a noble notion 100 years ago when water was available, the population sparse, and climate change not even on the horizon. But today, we face new challenges and unacceptable constraints on the state’s capacity to manage water, especially given that “beneficial use” of water doesn’t imply, encourage, or require conservation of water or efficient use of water. When “prior appropriation” was first established, we did not have urban growth, nor did we have industrial scale dairy, cattle, and farming operations.
The water laws described above have been impeding our ability to manage our water effectively for decades. But there have been two recent developments that could potentially begin to disentangle these laws and create a path forward:
- A key plank to Governor Michelle Lujan Grisham’s election campaign was to create a 50-Year Water Plan. In 2019, she sought $750,000 from the legislature to fund the development of the plan, but the legislature failed to fund it. Funding for this plan must be approved in 2021, especially given recent news that our state economy is not nearly as depressed as we had projected just three months ago. We will need to educate and urge our legislative leadership to prioritize this expenditure.
- We have at least one NM State Legislator, Rep. Melanie Stansbury, who has been deeply steeped in water policy and water legislation for many years. She is in the process of developing a package of legislation for the 2021 session that is promises to be another step in the right direct. We will report on this legislation as it advances beyond the draft stage.
So, while NM state water law is hopelessly antiquated, there are signs that some Democratic leaders are paying attention. It will be up to us, as activists and constituents, to ensure that our legislators, governor, and the administrators of state water regulatory and planning agencies understand that we do not want this can kicked down the road.
There is an obvious worry that the state is draining its aquifers by not taking proactive steps to manage its water. But the State Engineer’s failure to administer water has also put us out of compliance with legally binding water compacts with other states and with downstream areas in New Mexico. We are not delivering the allotments we promised. This was a big problem on the Pecos River, which resulted in a $200 million taxpayer-funded solution. It’s a huge problem on the Rio Grande south of Elephant Butte Dam, and an even bigger potential problem to the north.
New Mexico shares river systems with other states and Mexico. Historic disputes regarding overuse by upstream states led to the negotiation of eight interstate stream compacts that prescribe how much water we can take and how much we must deliver downstream. Each compact, approved by Congress, has the force of federal and state law; the U.S. Supreme Court has determined that compact delivery requirements are superior to all state water rights on the river. States that don’t comply with compact requirements face serious economic and legal consequences, just as New Mexico paid on the Pecos River, apparently without really learning its lesson.
The compacts are:
- Colorado River Compact of 1922 between Colorado, New Mexico, Utah, Wyoming, Arizona, California, and Nevada;
- La Plata River Compact of 1922 between Colorado and New Mexico;
- Rio Grande Compact of 1938 between Colorado, New Mexico, and Texas;
- Costilla Creek Compact of 1944 between New Mexico and Colorado;
- Upper Colorado River Basin Compact of 1948 between Colorado, Utah, New Mexico, Wyoming, and Arizona;
- Pecos River Compact of 1948 between New Mexico and Texas;
- Canadian River Compact of 1950 between New Mexico, Oklahoma, and Texas;
- Animas-La Plata Project Compact of 1968 between Colorado and New Mexico.
By one state official’s estimate, at the end of this year we could face a shortfall of 100,000 acre feet of water that is required to be delivered to Elephant Butte under the Rio Grande Compact. Over half of this net arrears would be used by New Mexicans south of Elephant Butte Dam, and the other half is promised to Texas. The current net shortfall has accrued in just two years. It has been estimated that over the next two years, our water debt could increase to 200,000 acre feet, and if this occurs, would almost certainly result in a crippling financial penalty and an absolute mandate to comply with the compact in the future.
From the 2018 citizen advocates’ report, “Making the Case for Change: Seeking Solutions to Important New Mexico Water Problems”::
“Many observers expect the penalties and costs that the U.S. Supreme Court will impose to hold New Mexico accountable for its past and require its future Rio Grande Compact compliance will be dramatically larger than in the Pecos.
Complying will mean our Rio Grande water use will be cut back and our future water use will be explicitly limited. The attendant adverse consequences and risks not only include a demand to deliver more water but carry a potentil billion dollar damage assessment.
Six years after the N.M. Supreme Court upheld the AWRM law [Active Water Resource Management] and the State Engineer’s general rules for its implementation; the OSE has not implemented specific rules in the Lower Rio Grande (LRG). This leaves the State unprepared to limit total water use in the LRG to the Rio Grande Compact requirements. This failure is a strike against New Mexico’s good faith and ability to be accountable.
Both seem essential components to any settlement of the Texas litigation.”“Making the Case for Change: Seeking Solutions to Important New Mexico Water Problems”
By not taking responsibility for managing our water more effectively, the state is essentially exposing itself to a huge penalty and will need to develop a plan to comply with the U.S. Supreme Court’s order and prevent future penalties or contempt of court.
Some have suggested that treating brackish, or “produced” water and reintroducing it where fresh water is currently used might at least contribute to our meeting compact requirements. But current methods of treatment and desalinization would be much too costly to significantly impact the imbalance between our supply and use of water. Rather than pinning our hopes on fanciful solutions, we must face the obvious: live with less.
“Water planning at all levels must identify opportunities for conservation and seek to stop waste and non-conserving uses. To minimize the impact of climate change and build resilience, it is imperative that New Mexico plan for dealing with variable water supplies, including a focus on water-energy nexus, drought planning and preparation for extreme precipitation events to minimize their adverse impacts.”Making the Case for Change
There is a good deal that needs to be addressed to fix the thorny nature of regulatory limitations handcuffing the state. But there are some starting points to untangling the knots and enabling the state to better understand its sources, uses, and water obligations:
- Fully fund the Governor’s 50-Year Water Plan and provide executive direction to the Office of the State Engineer and the Interstate Streams Commission to meaningfully address the gaps between our water supplies and our water use in each major aquifer or river basin segment and to ensure that the plan that unfolds incorporates resources to effect a just transition for those farmers and ranchers whose agricultural practice might change.
- Strengthen water management leadership. The appointment process needs to be reformed so that the Interstate Stream Commission is nonpartisan, composed of qualified individuals representing the State’s diversity, and confirmed by the Senate. The Governor’s appointments and the Senate’s confirmation of the new state engineer and ISC director are crucially important.
- Provide an executive mandate and adequate resources to the OSE to actually manage our uses of stream and river water. New Mexico needs the State Engineer to limit our total water uses on interstate rivers to our legal entitlements as proscribed by our compacts. As the highest of priorities, the State Engineer must complete the rules and prepare to implement Active Water Resources Management in the Lower Rio Grande and the Middle Rio Grande. These are legally binding compact agreements and should be treated as such.
- Begin managing water as if there is a problem of unsustainable use levels. Address statewide and regional water management problems, unsustainable water use, climate change impacts, watershed health, and water conservation opportunities through implementation of meaningful water plans.
To have any hope of implementing these actions, all New Mexico voters should:
- Support Rep. Melanie Stansbury so that she can continue her leadership for transformative change in the way NM deals with its water.
- Support new Democratic leaders who are in election battles to join the State House and Senate, such as Neomi Martinez Parra, Pam Cordova, Siah Hemphill, Katy Duhigg, Harold Pope, Claudia Risner, and Brenda McKenna. When you do support these campaigns, make sure the candidates understand your expectation that our water laws must be reformed, the new regulations enforced, and that our failure to be good water stewards is simply unacceptable.
- Contact your state legislators to request that they devote attention to understanding and addressing our water crises and take action to thoughtfully and perceptively implement needed transformative change in water planning and governance, including fixing and funding New Mexico’s broken water management agencies. You should consider sharing this report with your legislators.
- Request that the Governor implement her water policy campaign positions, with priority attention to the creation of a 50-year water plan that focuses on defining and addressing the gaps between water demand and sustainable water supply in the various river basins and aquifers of New Mexico.
- Contact Speaker of the House Brian Egolf and Senate Majority Leader Peter Wirth to make the prior two requests.
- Continue to pay attention to our water crises. It will not be quickly or easily resolved.
- Seek to understand where your water comes from and to assess the sustainability of the water resource that provides your supply.
- Support journalists and journalism that reports on the facts and science of our water supply and climate change adaptation imperatives and challenges.
- People who live in the Middle Rio Grande (Santa Fe to San Antonito) and elsewhere in NM should review the information on mrgwateradvocates.org and sign-up for newsletters and updates from the Water Advocates.
Below we provide links to the primary sources for this post, New Mexico Water Basics published in 2010, and Making the Case for Change from the House Memorial 1 Task Force.
The bottom line is that NM is operating as if it has an unlimited supply of water. Our agriculture, dairy, grazing, and gas and oil industries consume unfathomable amounts of water as if the tap will never run dry. It will run dry and it will be future generations that are forced to deal with our own inability to live within our means. The same can be said about our nation’s inability to understand that economic growth can’t continue in a world with limited resources. The consequences of our inability to live within our means are everywhere. Sadly, the evidence of our unwillingness to grapple with this challenge are also everywhere.
We will continue to work to improve our understanding of NM state water law and what needs to be done to meet current challenges. In the meantime, please share your thoughts below.
Paul & Roxanne
Categories: Climate Change, Agriculture, Land Use & Wildlife