One of the primary focuses of the New Mexico Water Advocates is advocating for critical support staff (capacity) and improved tools (such as modern computing capacity and software) for the Office of State Engineer and the Interstate Stream Commission. This past legislative session, the NM Water Advocates learned that two bills with the same purpose had been introduced in the House (HB348) and in the Senate (SB210), the main purpose being to raise the penalty for violations of State Water Law*. The existing penalty is a paltry $100/day, first set in 1907 and not updated since. Either bill, if passed, would have raised the penalty to $2000/day; for context, $100/day in 1907 is equivalent to over $3,400/day in 2025 dollars.
These two bills each cleared their first committee in the respective chambers in the first month of the 2-month session, but then stalled respectively in House Judiciary and Senate Judiciary, i.e., not being scheduled for a hearing.
The bills were bipartisan, with Republican Senator Jim Townsend joining as a cosponsor on both the SB and HB. NMWA appealed via email to the chairs of both of the Judiciary committees to schedule the bills; the HJC finally heard the bill on March 14, one week before the session ended and it passed unanimously with a couple of targeted, friendly amendments. When asked for a couple examples of water rights violations that this bill would help likely reduce, the OSE Chief Counsel cited illegal wells drilled to provide water to the O&G industry and illegal diversions of water to the cannabis industry. Additionally, there were only voices of support for the bill during the public comment period in HJC.
[aside: SB210 was never scheduled for a hearing in SJC, but that became moot when HB348 moved along quickly near end of session]
It was then passed unanimously on the House Floor two days later, assigned to the Senate Conservation Committee (SCONC), where it passed unanimously the next day, March 18, again with only voices of support from the public. Recently confirmed State Engineer Liz Anderson stated in the SCONC, “This is the most important bill for the agency (OSE). We can’t enforce against illegal water use with the current penalties. We need this (updated penalty) to modernize our administrative structure. “
With three days to spare before practical end of the session, HB348 seemed to have momentum. It was placed on the Senate calendar. NM Water Advocates expected the Senate Majority Leader to make sure the bill could get a vote by the full Senate. However, it unfortunately did not get scheduled for a vote before the session ended on Sat, Mar 22 and therefore the bill failed for another session. It’s a shame the urgency was apparently not communicated to Senate Majority Leader Peter Wirth.
OSE notes the maximum penalty for a water law violation was set in 1907 at $100 per day and has not been changed since. Analysis from OSE notes in most enforcement cases, the agency seeks payback of water rather than money. This is typically done through compelling the enforced-on party to reduce future diversions by the quantity of water which was previously over-or illegally taken or diverted. OSE has found this practice is a successful deterrent against future diversions or breakings of water law. The HJC amendment clarifies that OSE may not pursue monetary penalties (in the situations of over diversion of legally held rights, e.g., for farmers and ranchers,) and may only pursue repayment of water for over diversion of water rights.
It may have been Dwight Eisenhower who said that “plans are worthless, but planning is everything.” A plan, in other words, may become outdated or irrelevant nearly as soon as it is agreed to, whereas the process of planning never stops. Planning is a means—or rather a set of tools—that individuals and groups of people within a community (or a broader set of jurisdictions—a “region,” perhaps— can learn to use to govern themselves better.
The 1987 statute that authorized regional water planning asserted that each “region” should be able to “plan for its water future.” But this is not how it worked out. No criteria were established for constituting regional entities, defining their membership, or specifying the scope of their authority. A Regional Water Plan had to be “accepted” by local jurisdictions in the region and finally, by the Interstate Stream Commission (ISC). But acceptance did not imply that any elements of a region’s “plan” would ever be implemented by the agencies responsible. Once a regional entity’s work was done, State support (intermittent and inadequate at best) ended. No ongoing role for the regional entities was envisioned, nor was monitoring of the RWPs undertaken. Some of the regional groups survived; others did not. Some had to be reconstituted to update their regions’ plans.
In 2007 and again in 2015, the New Mexico Water Dialogue convened day-long workshops at the Sevilleta National Wildlife Refuge to enable ISC staff and regional water planners to address their concerns face-to-face. The Dialogue’s relationship with the ISC had been fraught from the outset, seen broadly as a struggle for control of the planning agenda between regional entities focused on the importance of planning for their regions’ water future, and State actors concerned with consistent methodology so that regional plans could be compared and “folded into” a State Water Plan.
The Water Security Planning Act (WSPA) of 2023 is designed to provide a bridge across this divide, by authorizing the creation of regional water security planning councils and investing them with authority to coordinate water planning and management actions within their regions. The councils are intended to be largely self-organizing and representative of all stakeholder interests in each region.
This degree of decentralization Is often referred to in political science lingo as polycentric governance. It involves sharing authority to create a system of co-responsibility between institutions of governance at the regional and local levels according to the principle of subsidiarity (i.e., the theory that decisions should be taken at the level closest to where they will have their effect) increasing the overall quality and effectiveness of decision making, while enhancing the authority and capacities of sub-state levels.
ISC duties include assuring regional water plans meet standards for approval, not merely accepting them for filing. The law says ISC’s approval of plans requires it to recommend the approved plans’ priorities for state matching funding.
Will it work? Governance is not the singular province of governments, and examples of effective collective action abound. Planning is process, demanding the ability to reconcile diverse values, beliefs, and expectations in pursuit of a common goal. After the basic facts about a problematic situation are agreed upon, success depends on the good faith efforts of a wide range of participants.
Governing, at sub-state, multi-jurisdictional scales is, at least in part, a problem of coordination among operators, regulators and stakeholders who share existential—but often competing— interests in a common source of supply (of a scarce collective good). The evolution of institutions for successful governance requires that actors adopt shared strategies for implementing plans and resolving issues, and that they make enforceable commitments to each other to carry them out. As their actions yield benefits and costs participants may adjust operating rules within the limits of their authority, including provisions for monitoring the resource as well as the behavior of actors who affect its condition.
Editor’s note: John Brown served as the Executive Director of the New Mexico Water Dialogue in the early 2000s and was heavily engaged in regional water planning under the 1987 law. John is a member of the NM Water Advocates Board and was a student of Prof. Elinor Ostrom.
This essay argues for an alternative to a mechanistic application of “priority administration” to allocate the “waters of New Mexico.” The 2023 Water Security Planning Act (WSP) provides flexibility at local and regional levels to move water and share shortages more democratically and intentionally. It allows us to think anew about how to govern our water resource: as a Commons.
“Conventional wisdom” (or more accurately, the ideology that there’s a “free market” solution to every economic problem) insists that to allocate scarce water efficiently to its “highest and best uses,” governments should leave buyers and sellers free to sort out through their market transactions who “owns” what “rights” to particular sources and flows of water. Taken to an extreme, and in the absence or weak enforcement of externally imposed rules, such a private ownership regime would make every water right owner (and claimant) their own governor. Each is incentivized to protect their interest in their private holdings. This scheme provides no incentive to protect the resource as a whole; nor does it account for water’s value in the context of its many critical functions in a social-ecological system.
Why would treating water as a Commons be better? At first glance, it would seem unlikely. A Commons (or common pool resource – CPR) is a shared “good” that under conditions of scarcity is subtractable—where one person’s use can take away from another’s ability to use it (that is, it can be depleted or contaminated), and limiting or excluding people from using (or overusing) it is difficult or costly.
The evolutionary biologist Garrett Hardin[1] declared it a matter of fact that people would “free-ride” on a good they have not helped provide or pay for, and thus a tragedy—where “freedom in a Commons brings ruin to all”—is inevitable. Hardin thought there were only two ways out of this dilemma: privatizing the resource, or strict regulation by the “Leviathan” (state control). But in this assertion Hardin was demonstrably wrong, as Elinor Ostrom and many others have shown. Thousands of cases of long-lasting and self-governing CPRs around the world provide empirical evidence that alternative institutional arrangements are feasible.[2], [3] New Mexico’s indigenous tribal communities, as well as its historic acequias, offer examples of self-organization and adaptive cooperation.[4] Can New Mexico’s water stakeholders (all of us) learn and benefit from viewing our water resources as collective goods, and governing them as such, in pursuit of a shared goal—in this case to thrive in a warmer, drier world?
Under provisions of the WSP Act, the NM Interstate Stream Commission (ISC) is given authority to “establish and conduct a regional water security program.” The Act requires the ISC to promulgate rules that establish regional boundaries, criteria for approving regional plans, and the composition of regional water planning bodies, as well as procedures for the regional entities to consider public welfare values and report any issues and concerns to the ISC. To what extent will those rules support self-organization and self-governance within regional planning entities? A great deal depends on how the ISC views its role(s) and those of each prospective regional water resilience planning entity in crafting them.
Would recognizing and constituting such entities merely add another “layer of bureaucracy” to an already top-heavy system? Or would it strengthen decision making by ensuring that values important to communities within each region are thoroughly considered? Here the concept of polycentric governance is relevant. It suggests that successful governance of scarce shared resources needs to operate at several levels or scales, on the premise that many social problems are best dealt with at the level most closely related to the problem. From this perspective, polycentric governance aims to create an adaptive system of multiple self-governing units of different scales interacting with each other.
Planning coordination within any region, including identifying and helping to resolve conflicts among community planning efforts and their implications for strengthening regional water resilience, ought to be an important aspect of a regional entity’s work. While subject to state law (the WSP Act), these planning entities should not be merely a creature of the ISC. Their composition should reflect the diverse preferences, interests, and concerns of all regional stakeholders—water users, providers, managers, and regulators—and ensure their representation in its deliberations and decisions. Face-to-face interaction in appropriate forums can have profound implications for building trust among heterogeneous actors, which is a vital resource to enhance cooperation for taking collective action.
Closely related to trust-building, a polycentric approach to governance emphasizes mutual learning and decentralized experimentation and takes fully into account traditional technical knowledge as well as 21st century scientific findings. Some functions of regional entities consistent with polycentric governance might include:
authority to approve or to recommend funding for grants and contracts to itself and/or to communities within the region for enhancing water resilience;
monitoring agencies’ and non-governmental actors’ activity affecting the region’s water supply and reporting issues to the public;
defining the public welfare of the region, and testing agencies’ policies, plans and projects against public welfare criteria it adopts;
executing governance arrangements (via memoranda of understanding) within our existing legal framework. [5]
For collective action to succeed, perception of the benefits of cooperation to the common good must outweigh in actors’ judgments the perceived costs of participating in the collective effort over the long haul. In the case of sustaining, protecting, and equitably allocating New Mexico’s scarce water resources, the stakes have never been higher.
John R. Brown is an active member of the Water Advocate’s board and was the New Mexico Water Dialogue’s Executive Director from 2002 to 2006. John is an independent public policy professional and has written several articles and papers on water planning and policy.
[1] Garrett Hardin 1968. The Tragedy of the Commons. Science 162:1243-8.
[2] Elinor Ostrom 1990. Governing the Commons. Cambridge University Press
[5] A regional entity might for example serve as a negotiating forum for developing a shortage sharing agreement for use in an alternative administration process under Active Water Resource Management.
New Mexico, the state with the least surface water, is facing a worsening water crisis. Since 1985, 25% of the Rio Grande’s water has been lost; experts predict similar lor greater losses in surface and groundwater by 2070. Rising temperatures intensify soil aridity, evaporation, and plant transpiration, further reducing water availability. Meanwhile, agricultural demands, industrial use, and reliance on dwindling aquifers continue to strain the state’s water supply. Despite water flowing from faucets today, New Mexico’s water crisis is a present and growing reality that requires urgent collective action.
The Need for Education to Secure Funding for Water Laws
Although New Mexico has enacted essential water management laws, many remain unfunded or only partially funded. Public and legislative education is crucial to build the political will necessary to fund these initiatives, which include:
The 2023 Water Security Planning Act (WSPA): Establishes regional water planning Councils under the Interstate Stream Commission (ISC). Needs full funding.
The 2019 Water Data Act: Supports water data collection to model availability and plan for future resilience. Needs partial funding.
Aquifer Mapping: Critical for planning, monitoring, and measuring available fresh and brackish groundwater. Needs partial funding.
The 2004 Active Water Resource Management Program (AWRM): Utilize water rights enforcement authority the Legislature passed in 2003 to ensure New Mexico meets its Rio Grande Compact water delivery obligations.
Without adequate funding, these efforts remain incomplete, leaving the state vulnerable to worsening water shortages. Education is essential to mobilize public and legislative support for full implementation.
Understanding the Water Crisis: The Need for a Paradigm Shift
Public awareness of water scarcity remains low, especially in areas where taps still run freely. Many do not realize that New Mexico is overusing its water resources, including accumulating debt under the Rio Grande Compact, which requires delivering water for all uses downstream from Elephant Butte Dam and limiting New Mexico’s uses of that water to its legal share. The Middle Rio Grande’s overuse and resulting water debt prevent upstream storage of Rio Chama water for later release. Without storage releases, the people depend solely on monsoon rains.
To foster sustainable water practices, New Mexicans must shift their perspective, recognizing water as a finite, cycling resource rather than an unlimited commodity. Understanding the long history of water formation—such as the 3-6 million years it took for the Ogallala Aquifer to develop—reinforces the need for careful and respectful use of water.
Lessons from Local Communities
Several New Mexico communities have already faced severe water crises and adapted accordingly:
Santa Fe: Residents changed their water habits following stringent restrictions imposed during severe shortages. They continue to conserve water proactively, treating it as a limited resource.
Clovis: After learning of its rapidly depleting Ogallala Aquifer, the city organized a water sustainability effort. Led by Dr. Ladona Clayton, residents partnered with Cannon Air Force Base and ranchers to implement rain catchment, conservation, leak repair, and monitoring efforts. Grants, including funding from the Department of Defense, have supported long-term water planning and resilience initiatives.
Portales: Lacking similar organized efforts, Portales has been under Level 3 water restrictions for an extended period, severely impacting families, businesses, and city services.
Regional Collaboration: Dr. Clayton and the Ogallala Conservancy have expanded their water resilience efforts to southeastern New Mexico and East Texas through regional water institutes.
These examples highlight how proactive water management can prevent crisis conditions and should serve as models for the rest of the state.
Existing Public Education Efforts
Various organizations and agencies provide water education in New Mexico:
State Agencies: The Office of the State Engineer (OSE) has conservation programs, and the Interstate Stream Commission (ISC) hosted statewide open houses in 2024, gathering input and answering questions on water planning.
Albuquerque Bernalillo County Water Authority: Offers conservation education for residents, landscapers, and students.
The Water Dialogue: Holds annual conferences on water issues.
Amigos Bravos & NM Acequia Association: Advocate for water rights, create public awareness campaigns, and produce educational media.
NM Water Advocates (NMWA): Hosts monthly workshops featuring experts on water management, policy, and legislation, with recordings and resources available online.
Despite these efforts, many New Mexicans remain unaware of the state’s water crisis or how to engage in solutions. Expanding and coordinating educational outreach is essential.
Educating Legislators: Building Support for Action
Legislators’ knowledge and priorities vary widely. Some recognize the crisis and have sponsored critical legislation, while others remain skeptical, delaying funding for solutions. Strategies to educate and engage lawmakers include:
Professional Training: NM Tech provides legislators with data-driven aquifer analysis and graphic-rich presentations.
On-Site Learning: Senator Mimi Stewart has organized educational sessions along the Rio Grande, allowing legislators to experience the river’s conditions firsthand.
Constituent Advocacy: New Mexicans must inform their representatives about local water shortages, conservation efforts, and funding needs. Reports of dried-up wells, farming restrictions, trucked-in water, and severe restrictions in rural communities can help legislators grasp the crisis’s real-world impacts.
Public pressure is a powerful tool in driving legislative action. Constituents who share their experiences can help lawmakers understand the urgency of fully funding water security initiatives.
Grassroots Water Conservation Efforts
New Mexicans are adopting a variety of conservation measures:
Urban Adaptations: Residents install drip irrigation, xeriscaping, rain catchment systems, and composting toilets. Some use gray water for plants, reduce red meat consumption (which requires significant water for production), and buy second-hand clothing to minimize water-intensive textile manufacturing.
Innovative Farming Practices: The Spirit Farm, near Gallup, uses regenerative farming with trucked-in catchment water. James and Joyce Skeets teach conservation techniques, composting, and sustainable agriculture methods.
Community Projects: The Little Sisters of the Poor showcase modern rain catchment systems. Zuni Pueblo is organizing 2025 Water Conferences to promote regional water sustainability efforts with the Honoring Water Group.
These individual and community actions demonstrate that water conservation is both necessary and achievable.
Preparing for the Future: Workforce and Education Development
New Mexico must expand its water management workforce to implement regional water planning and conservation initiatives effectively. Recommended steps include:
Higher Education Programs: NM Tech and other institutions should develop degree tracks in advanced water planning, management, and community engagement.
Community College & Journeyman Training: Establish hands-on training for infrastructure repair, water monitoring, and conservation system implementation.
Public & Decision-Maker Education: Workshops should educate officials and the public on becoming informed participants in regional water planning efforts.
Conclusion: A Call to Action
New Mexico is already in a growing Water Crisis. Without immediate action, communities across NM will face severe water shortages, restrictions and economic hardship. It is critical that legislators, water professionals, governing officials and residents respond thoughtfully instead of reacting without thoughtful consideration of what will help and hurt NM’s water crisis. We must work together to make the regional water security planning program all that the law allows and New Mexican’s need it to be. Rational water planning will help regional councils work together to develop systematic fact-based solutions to increase community water supplies resilience. Our planning process must consider multiple perspectives and responsive group interactions, which improve decision making processes even when voting is necessary. These skills also are essential in securing funding to more fully implement existing water laws, foster a culture of conservation, and prepare a more resilient water future for our communities.
New Mexicans must act now to ensure a sustainable water supply for future generations. By embracing a culture of stewardship, advocating for policy change, and adopting responsible water practices, we can collectively build a water-secure New Mexico.
New Mexico faces a growing water crisis, driven by climate change and overuse. Without swift action, water shortages could threaten our economy and way of life. Experts forecast that, within 50 years, our state will be 5-7 degrees hotter, with 25% less water.
Can those living in New Mexico successful save our existing and growing economies from some sort of future catastrophic collapses due to water supply shortages caused by climate change? Most do hope so, but action is needed very soon. It does not seem, however, that it is human nature to address pending crises before they become severe. For example, our state and local governments and communities are failing to address rapidly the present and ongoing realities of water supply overuse along the Rio Grande and elsewhere across New Mexico.
Cities and towns along the Rio Grande see almost daily new developments, apartment complexes, housing communities, office buildings, and so on being constructed. This would seem to be in response to the significant ongoing efforts by the local governmental development agencies to attract new industries and business to the New Mexico, especially to the Albuquerque area. While we have sometimes heard, “If we are not growing, we are shrinking,” we also have heard, “The bigger they are, the harder they fall.” Not an outcome most would desire.
Current State and Local Efforts: Are They Enough?
Yes, our state’s Interstate Stream Commission and Office of the State Engineer are grinding away slowly in a start to address the state’s present and pending water supply crises, an effort that some may call “too little, too late.” Many reports have been produced and necessary actions are being talked about. It will take years to establish and implement the need actions, perhaps too slow and too late for the magnitude of changes coming regardless of whether we act or not. But it is important to acknowledge that these efforts by our state’s agencies are severely constrained by major limitations caused the failure to the NM legislation to recognize the severity of the growing water supply crises and their failing to provide needed funding to rapidly produce needed management changes. So, will a better late than never water management update be adequate? Time will tell.
How Did We Get Here? The Prior Appropriation Doctrine
How did we get here? States west of the 100th meridian, including NM, generally have long managed surface water supplies, especially along rivers, using the prior appropriation doctrine. This gives to whoever first started depleting surface water for “beneficial uses” the right to divert the same defined volumes of surface water from that source for ever. Historically, this meant diverting surface water for agricultural uses, as water for domestic or other uses tended to be relatively minimal, even insignificant, in comparison. This system is also sometimes called, “first in right, first in use.”
A water right is the right to use water, not the right to own water. Under the NM Constitution (Article 16), all water in NM belongs to the public, that is, the State, and is subject to appropriation by beneficial use. Those with the most senior water rights include native tribes, pueblos, Spanish land grants, and other territorial water users established prior to the 1907 Water Code. Senior water rights users can continue to use the permitted quantity of water annually for their beneficial uses into the undefined future, if the water source can supply that quantity. Successive users who then have more junior water rights can take any remaining surface water from that source for their own beneficial use, but only so long that they do not impinge on the rights of the more senior users. At least that that is the way it was supposed to work.
The Reality of Over-Appropriation and Overuse
How well does it work? It seems, less than optimally. According to a report from the Western Water Network, in the 1880s the Rio Grande water “was fully appropriated for irrigation.” Then the 1889 drought cycle “aggravated problems of over appropriation [emphasis added] in the Upper Rio Grande.” In that report “Upper Rio Grande” means the river upstream from just south of El Paso, Texas, to the river’s headwaters in Colorado. Consider then with over appropriation, that is “overuse,” of the Upper Rio Grande occurring in 1889, how is use of the Rio Grande water not considerably stretched thinner today? Consider this now especially when facing the region’s diminishing annual water supply and warming.
Is the 1880s Water Management System Still Appropriate?
Here it is important to question how the water management system established in the late 1800s for New Mexico’s agriculture and mining dominated economy remains appropriate for water management in the 2020s and beyond. Under the 1880s system of water management, only those having water rights permits for specific surface water sources may divert water from those sources. As such, whenever a surface water supply shortage might occur for a source, access to the surface water can be limited to those holding the oldest or most senior water rights or permits. Potential harm can result affecting others with more junior rights who also depend on that water source.
Under that 1880s system, water rights holders, either senior or junior, can also potentially lose their permitted water rights through non-use of their permitted beneficial use, for example, by stopping to farm. Often too, what can happen in NM and in most western states, water rights permit holders can sell their water rights separate from the land. This is a common approach for how municipal or industrial users can acquire needed surface water supplies. However, for existing owners of pre- or post-1907 water rights permits to change their permitted uses, they must apply for that change to the NM State Engineer. Surface water rights of individual irrigators in federally established irrigation and conservancy districts cannot be sold for use outside the district by communities and industry.
Active Water Resource Management (AWRM) – A Modern Attempt
The concept of limiting overuse of water by agreement was adopted for Pecos River Compact compliance purposes by the 2001 Legislature when it codified the agreement negotiated between Carlsbad area and Roswell area surface and groundwater users. The 2003 Legislature passed a law that directed the State Engineer to administer water rights in the absence of a completed adjudication based on the best information available. This new law, authorized the State Engineer to issue rules for priority administration and rules for expedited water marketing and leasing based on appropriate hydrological models. This law requires that administration not interfere with adjudications, not impair water rights any more than necessary to meet downstream obligations and must not increase depletions. The legislation exempted acequias and community ditches. It required that rules for marketing and leasing water be consistent with current law governing changes of point of diversion, place of use, and purpose of use of water rights. The legislation was signed by the governor and became New Mexico law at §72-2-9.1. NMSA 1978.
Called Active Water Resource Management (AWRM), it broadened and formalized the Office of the State Engineer abilities to manage the state’s waters. Under the resulting new regulations, stream-system based district water masters were designated and directed to employ hydrology monitoring of water use with district-specific rules to administer and protect water rights. During times of water supply shortages, several administrative options were implemented to address user needs. These include direct flow administrationwhere water can be delivered only to those users having highest priority water rights. Storage water administration can be used to manage the distribution of storage water to those having water rights to these waters, but not to those having only an administrable water right to native stream flows. Alternative administration can be used to file a plan with the Office of State Engineer for a water use agreement between junior user(s) facing a cutoff and senior water right owner(s) who can share water not planned for use with the junior user(s). Such arrangements are called shortage sharing.
Groundwater Depletion – A Growing Concern
During those times of surface water supply shortfalls in NM and elsewhere across the West, groundwater is typically pumped and used to supplement water supply requirements. Groundwater also is used when no reasonable access to surface water exists, for example, for rural homes or agricultural production. Historically, groundwater use has not been regulated or otherwise controlled. This has increasingly led to the depletion of groundwater, as the communities of east New Mexico are now experiencing as the Ogallala Aquifer is drained by agricultural pumping without regard to the need for communities to maintain a secure water supply for domestic and non-agricultural economic activity.
It is important to emphasize that surface water commonly is connected to the underlying groundwater. The connection can be direct and strong or less direct but with a longer-term impact. As such, unregulated pumping of groundwater from an aquifer interconnected with a river reduces river flows. In addition, groundwater pumping creates empty space in the pores formerly filled with the extracted water. In some places and at some times the weight of overlying soil and whatever is on the surface causes compaction of the aquifer. This leads to the formation of sink holes and overall ground surface settling, called surface subsidence. Areas of northeastern Albuquerque, for example, are included among those potentially susceptible to future pumping induced subsidence.
Differences Between Western and Eastern Water Management
In contrast to practices in the western US, most eastern states mange water under the riparian doctrine. This doctrine allows water use by the owners of the land adjacent to the water. Riparian rights cannot lose their rights for non-use, as is possible for those under the prior appropriation doctrine. Some western landowners think they have rights to water flowing by their land or underneath it, but that legal luxury is not valid in the western US as water must flow past to downstream senior water right owners.
The Challenge of Managing Wet Water for Multiple Needs
It has been emphasized here that the water management system of prior appropriation used in NM and the West comes from the agrarian dominated economies of the late 1800s. Unfortunately for that system, about 150 years ago there was also an “Industrial Revolution” that, like COVID, started to significantly spread across the world, changing the population size and economic base of many communities. Yet, across most of the West water is still managed as being an agrarian water-rights dominated economy, those having water rights from 100+ years ago get water first. But today NM needs to manage wet water from its various sources to deliver water for multiple user needs.
Of note here, a State water expert recently and perhaps surprisingly commented privately, “NM has plenty of water,” then, added, “it just goes to agriculture.” In fact, the ISC “Water in New Mexico” handout shows that 76 percent of the state’s water is diverted or pumped for irrigated agriculture. That, coupled with NM’s historical water-rights base management system is, perhaps, our state’s main obstruction to wet water management for today’s changing water supplies and population needs under climate warming.
The Need for Modern Water Management Approaches
NM’s water management approach needs to be updated for modern climate-warming times. NM must start managing physical wet water rather than focus almost entirely on administration of paper water, that is water rights and groundwater pumping permits. In the end, municipal populations and economies, family food farms, home food gardens, and, certainly, Hatch chile farms need water. If economic municipal economic growth is going to continue then wet water management needs to prevail over water rights management. If that is to happen, remaining family-owned senior, land grant, and tribal water rights will require special consideration. Likely too, in the long-term, some or many junior water rights holders may require significant shorting or eliminating.
Conclusion: Wet Water Management for the Future
Until NM changes to an emphasis on managing wet water over paper water, we may be left with two extreme inconvenient choices in the years to come: (1) some or most years with considerably less or zero water for domestic, municipal, industrial, and agricultural uses, particularly for those agricultural users with newer, post-1907 water rights; or (2) an increasingly dry or even desertified municipal and industrial economies with increasing urban abandonment.
Land subsidence and recovery in the Albuquerque Basin, New Mexico, 1993–2014. Driscoll, J.M., and Brandt, J.T., 2017,: U.S. Geological Survey Scientific Investigations Report 2017–5057, 31 p.https://doi.org/10.3133/sir20175057
MainStream New Mexico. https://mainstreamnm.org/data-and-reports/ (This site provides links to many reports produced by various state organization on the state’s upcoming water crisis.)
The Upper Rio Grande – A Guide to Decision Making. S.J. Shupe and J. Folk-Williams. 1988. Western Network. (This report is difficult to find but provides considerable insight on the region’s water histories plus planning and management needs. This organization has produced other similar reports for water resources across the West.)
Water managers along the Middle Rio Grande (MRG) and across New Mexico increasingly feel as if they are staring into an abyss of water shortages for increasing numbers of users who depend on water supplies for drinking, for economic growth, and even for the survival of our present-day economy.
The reliable supply of NM’s surface water to our streams, rivers, lakes, irrigation systems, and other critical water needs depends primarily on winter and early spring accumulations of mountain snow.
As we have experienced in recent years, climate warming increasingly causes the over-winter loss of snowpack, markedly reducing the total annual water supplies available and causing snowmelt runoffs earlier in the spring before crops have had sufficient time to develop to when they could benefit from earlier watering.
Couple these changes to the long tendency along the Rio Grande and across NM to over-use surface water supplies. For example, early in the 1800s the annual water supply of the Rio Grande was declared to be fully allocated. Then, with the drought of 1888, it was then declared to be over allocated, a condition that is unchanged today. And we have added more and more water users over time.
With climate warming also producing changes in global atmospheric circulation patterns, future projections forecast that NM will become increasingly dryer due to total region-wide reductions in snowpack and increased water loss due to increasing evaporation rates.
In an attempt to have equitable water supplies from the Rio Grande for Colorado, New Mexico, and Texas, as well as addressing US treaty requirements to Mexico, the three states signed the Rio Grande Compact, which was then ratified by Congress in 1939.
Today, the claim that NM is and has long been shorting the agreed-to water supply deliveries to Texas is awaiting a final US Supreme Court decision. The original terms of the Compact effectively caused additional limits on the surface water supply available to MRG users. The final court decision might further constrain the MRG supply.
To fill the gap in limited surface water supplies, communities and individuals have increasingly depended on pumping groundwater to address their need for water. Today, many of NM’s groundwater aquafers are nearing depletion.
MRG water supplies have been augmented by diversion of water from the San Juan River in the upper Colorado River basin into the Rio Chama and then into the Rio Grande. Here it is important to recognize that the effects of climate warming are similarly affecting water supplies across the entire southwest into California as the Colorado River and San Juan River are seeing reduced volumes as well.
Multistate negotiations on how climate-driven water supply shortages from the Colorado river will be distributed to all of the affected southwest states are ongoing with no permanent plan in sight. How that final future plan will affect San Juan River diversions to the Rio Grande is unknown, but in recent years that diversion has been short of the originally anticipated supply.
How best to address the increasing water supply shortages across NM is an open question.
Can the many and different water users within each of NM’s river basins and water management areas somehow reach agreements on how best to equitably share these shortages, as has become the custom for over 100 years along NM’s acequia communities?
As a start, the Water Advocates for NM and MRG are working with water managers along the MRG, including the NM Interstate Stream Commission, the MRG Conservancy District, Bernalillo County, ABCWUA, the US Bureau of Reclamation, and others to start planning for our shortened mutual water supplies.
The NM Interstate Stream Commission is hosting several Water Planning Open Houses to hear water related concerns from communities across the state as first step to draft the rules and regulations for updated regional water planning. We encourage you to attend these meetings and make your voice heard. Without accurate information and community engagement, the abyss will only grow. Let’s back away from the abyss and create a sustainable water future for New Mexico and the Middle Rio Grande.
On April 9, 2024, I witnessed amazing progress in local governments’ approaches to water policies crucial for New Mexico’s future. Bernalillo County elected officials and staff clearly acknowledged in new amendments to a draft high-level plan that New Mexico and the Middle Rio Grande are in an acute water crisis and that water is a Bernalillo County land use constraint. This marks the first official acknowledgment of hydrologic reality in Bernalillo County in a long time.
The County’s sustainability director emphasized the importance of rural communities, farms, and public green spaces as core Bernalillo County values that are crucial to sustainability. Three elected County Commissioners voiced their active support and encouragement.
This progress is significant. I believe the April 9 hearing may mark a tipping point for the Middle Rio Grande’s progress to face its water future.
The Governor and the Legislature Step Back. However, our Governor diverted the attention of the 2024 Legislature in facing New Mexico’s water future. She demanded they authorizing borrowing half a billion dollars to support a private sector badwater treatment scheme. This move, supported by the House Appropriations and Finance Committee chair and vice-chair, failed. The 2024 Legislature stopped the water policy and actions momentum that they created by passing the 2023 Water Security Planning Act. This year, Legislative Finance Committee staff were justifying not recommending funding to implement this landmark new law by saying the work done under the old 1987 law was unproductive. It felt like one step forward and two steps back.
Despite having billions of dollars available, the 2024 Legislature allocated less funding to the Interstate Stream Commission’s water planning program than in 2023. It also appropriated only half of the funds requested to implement the 2019 Water Data Act and nothing to fund drilling aquifer research and monitoring wells allowing us to leverage available federal funding that will soon expire.
Neglected Priorities. Recently, I learned that valued State Engineer professional staff were considering quitting because they lack basic computer hardware capable of running sophisticated hydrology software models and tools. Office of the State Engineer computer servers are incapable of handling the staff’s routine work and are a serious hinderance to their productivity.
Their request for computers didn’t make it into the Governor’s budget, indicating that someone, undoubtedly a budget official, denied it. Who made this decision? Why? My diagnosis: New Mexico State finance officials do not know what they do not know – that water has become an acute problem demanding a solution if our descendants are to have water for their future lives in New Mexico. The bean counters apparently think our water problems are only squabbles. In fact, growing aridity and gross water overuse threatens New Mexico’s existence as home for the young and future generations of New Mexicans.
It’s up to us, as water advocates, to support Bernalillo County’s work and demand that the State of New Mexico do what is right based on the science and data in the authoritative reports previously cited. The perspectives publicly expressed by Bernalillo County elected officials and staff are essential for a thriving future in the Middle Rio Grande. However, the Governor and legislative finance committees’ pursuit of funding for flashy projects while denying state staff the basic tools they require to do their jobs is wrong.
Progress, Momentum and Tipping Points
Despite my disappointment with the 2024 Legislature’s water budget failure and Executive branch’s disinformation, I draw encouragement from Bernalillo County’s responsiveness to truth and data as described above.
Portales officials disregarded the same groundwater research that caused Clovis officials to act.
Building Local Solutions. We must learn from the successes of NM Water Ambassador Dr. Ladona Clayton’s remarkable achievements over the last decade leading the Ogallala Land & Water Conservancy, created by Curry County and the City of Clovis to secure water for their economy by gaining the willing cooperation of many large groundwater pumpers. We need to learn from Portales and Eastern New Mexico University running out of water in 2023 and facing a very grim, water short summer of 2024 and forever, because Portales officials disregarded the same groundwater research that caused Clovis officials to act.
Please thank Senate President Pro Tem Mimi Stewart for insisting on and funding the New Mexico Bureau of Geology and Mineral Resources at NM Tech to resume their great water education program for legislators. This highly successful program of the early 2000s is now reestablished, after our former Governor Susanna Martinez stopped it in 2011. Senator Stewart is a fully aware top state elected official. I hope she will demand more attention during the Interim Committee to our water crisis, which will lead to adequate water funding and new or revised statutes identified by the Water Policy and Infrastructure Task Force as state water policy priorities.
Most State Elected Leaders Are Unaware of New Mexico’s Water Crisis. I recently asked a candidate running for reelection to the New Mexico State Senate if they planned to attend the Water Leaders Workshop funded at Ghost Ranch on May 22-24. I have followed their good work as a New Mexico legislator for several terms. They said they did not understand the nuances. To us it is just basic facts of New Mexico’s crisis, such as gross water overuse everywhere and Portales running out of water in 2023, that that they do not know. They committed to attend.
Take Action. I implore everyone to amplify this message. Contact your State Senator and State Representative to urge them to educate themselves about New Mexico’s water challenges by attending the Ghost Ranch workshop.
Additionally, reach out to Legislative Finance Committee/House Appropriation and Finance Committee Chair Nathan Small and Vice-Chair Meredith Dixon. Tell them to fund water basics and to recognize the urgency of the crisis we face. Water cannot wait. The House Appropriations and Finance Committee’s and the Legislative Finance Committee’s long-standing refusals to fund water management and planning and their denial of New Mexico’s acute water crisis must stop.
Sweetwater is better than Badwater. As a grade school kid living ½ block from the main US highway from El Paso to Los Angeles as Interstate 10 was being built to bypass Deming, I remember being curious about places named Badwater or Sweetwater, sour water wash and gypsum draw. Google Maps shows three Sweetwater Streets in Albuquerque and Santa Fe today. Many places are named that across the West. Sweetwater is a generic goods and services brand, too.
The sweet waters of New Mexico are necessary for all life in our beloved state, in all our home places, our querencias. An acerbic senior ISC water engineer told me 25 years ago that we know where New Mexico’s water is. It is where we live, irrigate, water livestock, hunt and fish, and enjoy our heritage. He didn’t need to say “sweetwater.”
New Mexico’s sweetwater overuse and increasing scarcity not a State of New Mexico priority. New Mexico is in a water crisis. It is a crisis that begs for our actions this year, not next, which is simply not the way New Mexico’s elected leaders behave because they do not know. The crisis will be realized gradually on the human time scale of years and decades. Intentional informed action today will make tomorrow as good as it can be. Continued neglect will destroy New Mexico’s future, as we watch 40 years of water stewardship neglect continuing with little concern from the top.
Water can’t wait. Water scarcity is increasing. Pumps are everywhere without any control of pumping other than the permit to drill them. Surface water right owners do not have enough, and are granted state permits to pump out-of-sight, out-of-mind groundwater that is always there, accelerating groundwater overuse.
The only realistic opportunity to meet our needs and create a livable New Mexico with water for future generations of New Mexicans is much better stewardship of our remaining sweetwater. Someone reminded me of an adage that could have come from a southern NM uncle: if you are digging a hole and begin to wonder if you can get out or it will cave in on you, stop digging.
Why are we digging until all we have left is badwater?
New Mexico is pumping irreplaceable groundwater and has been at it for a century without an eye to the future. This summer, Portales ran out of water. Through neglect, that historic New Mexico community, home to Eastern New Mexico University, the pride of many east-side legislators, ran out of water.
What will the City fathers and the State do to keep Portales from becoming a ghost town, like others across New Mexico that dried up and blew away after exhausting resources? Where has the water gone, the scarcity of which threatens Portales’ very survival? Not for the greater good or the public welfare of the region, or of the State.
Public welfare of the state is the measure of state law for discretionary state engineer decisions. Public welfare of the region is a new legal term created by the House Floor Amendment prior to the 2023 Legislature’s unanimous approval of the Water Security Planning Act. We are the state most dependent on groundwater. We are mining it out, and when it’s gone, it’s gone forever. Since water is life, and without water, there is nothing, so will we. What is the public welfare of the state, and the public welfare of the region, in that light?
Formerly gushing wells are dribbling and well drillers can’t begin to meet the burgeoning demand for new and replacement wells. We are blowing off Rio Grande interstate water sharing agreements despite the clear trend toward a brand new decade-long lawsuit brought by the Texas. How much longer will we chase the water?
The New Mexico default answer is, until the rivers are all sand and the aquifers are empty. By their actions, our elected leaders show that water security, which requires stopping grossly unsustainable and low benefit water depletions, is not on their minds.
Badwater investment. Planned badwater treatment for use may be part of a future vetted water resources management portfolio but has no place in a wise water management strategy that begins with the end in mind, a livable future for New Mexicans throughout our state. And puts first things first.
Tremendous opportunity costs. Meanwhile, none seemed to recognize the dispute between the Legislature and the Governor was blocking state funding for State water agency work essential to New Mexico’s survival. This essential, foundation work would, after sufficient investment, tell us how much groundwater we have left and how fast we are using it up. We will wait to rev that effort up until a future day when we have more money? What?
Opportunity cost examples. No funding was provided for expanding the groundwater science staff at the NM Bureau of Geology and Mineral Resources nor drilling aquifer characterization monitoring wells to tell us how much water we have left, and the years remaining. New Mexicans deserve to know that.
The Governor proposed a few large appropriations of federal funds for water infrastructure, like drilling the monitoring wells and for an Indian Water Rights Settlement Fund. None survived the 2024 Legislature. One casualty was $4.5 million in federal ARPA funding allocated to begin a planned 10-year program to systematically drill and equip aquifer research and monitoring wells.
Failing to fund accelerated implementation of the 2019 Water Data Act is in my view the most egregious failure of the Executive and the Legislature to put first things first. The data required for all state funded regional water planning must come from full implementation of the NM Water Data Initiative. §72-14A-4 (7) NMSA 1978
Problems with the Legislature. Concurrently, Legislative Finance Committee staff reportedly were justifying not funding implementation of the 2023 Water Security Planning Act with their own internal longstanding misinformation blaming the ISC and regional water planners for producing shelf reports, shamelessly or without knowledge that shelf reports were exactly what was authorized by the “not-planning, not intended for implementation” statute passed in 1987.
The 2023 Water Security Planning Act replaced the narrow, useless 1987 statute. The Legislature’s appropriators again did not adequately funding implementation of that planning law passed unanimously last year commensurate with the urgent need. Their staff based this neglect on irrelevant uninformed criticism of the law that was. Who can explain this? I can. They simply don’t know what they don’t know about New Mexico’s water crisis.
Problems with the Executive. After recovering from my shock and anger witnessing the Senate Conservation Committee hearing of “dummy bill” SB294 approximately 50 hours before the 2024 Legislature ended, I asked myself if I was hearing misinformation or disinformation.
The Executive’s principal spokespersons for the badwater, so-called strategic water supply during the session, that emerged at the 11th hour as SB294, are knowledgeable, sophisticated professionals, one a professional engineer, the other a lawyer. Their facts and inferences were not reasonable or true, from my perspective. Their arguments were not rational. Did they intend harm through disruptive out-in-front support for an ocean idea imported to the high desert withholding all judgment as to feasibility and priority? Intention to harm is the criterion distinguishing disinformation from misinformation. Regardless, the initiative they were leading as the faces of the Executive created harm.
Produced water treatment was removed from the SB294 before introduction. The Governor put it back. Follow the money. Our state’s reins are held by oil and gas.
Parallel of the Gila Diversion Project modus operandi. The Executive pitch to date for the Governor’s badwater project shares characteristics with the New Mexico Interstate Stream Commission’s wasteful attempt to develop the known-to-be-infeasible Gila Diversion Project from 2004 to 2020. The parallels I see:
Throw money at the problem while avoiding a feasibility study
Facts are not favorable so are secret or immaterial
Disinformationpaints a fantasy word picture of an unfeasible outcome
Opacity hides the fatal flaws of the proposed project, its data, technology, costs, benefits, beneficiaries, and the self-serving participation of key players
Known Unknowns. I admired Senator Harold Pope, Jr.’s thoughtful critique of the dummy badwater project bill SB294 at the Senate Conservation Committee hearing about 50 hours before the session ended. The legislature’s streamed video recording is available here. Senator Pope observed we need answers to the many known unknowns about the project before it is fully funded.
Everything is unknown, including the basic feasibility and any assurance this project will be assessed to any reasonable public standard. It is ironic that the law imposes stringent proper planning, vetting and prioritization requirements on anything proposed by a regional water planning entity, but the same doesn’t apply to the so-called strategic water supply.
We can see the opportunity costs as described above. We can’t assess unintended consequences of the proposal because nothing is known.
South American public policy scholars. My thinking went back to the cohort of South American Fulbright Scholars I was privileged to work with at the University of New Mexico in June 2023. They loved getting to know New Mexico and learning about the Middle Rio Grande and our water. Water policy is not something they had considered previously because their federal government manages their country’s water resources and uses with more equity, appropriate prioritization, and realism.
After three weeks at UNM with international academic scholars and Peace Engineering leaders, the scholars’ water policy case study diagnosis and remedy get right to the point. Regular type is theirs; italicized is mine.
Research continues to find problems and propose solutions that don’t reach the people
New Mexico legislators are people.
Water is a community-problem. Community problems require community-driven solutions.
The only way to generate sustainable solutions is to understand water as a collective action problem and empower the people to take action
What concerns me most is that consequences on New Mexico of the fundamental hydrologic and climate reality we face are an unknown, unknown to most NM legislators
When Senator Pope talked about the known unknowns of a not-even-located desal or oilfield toxic wastewater treatment for reuse plant or any high tech, high energy required solutions, my mind went to the highly inconvenient truths of our hydrologic and climate reality that most NM Legislators do not know, or even know that they don’t know.
The Fulbright Scholars participated in meetings with VIPs, including local and state elected officials, the University of New Mexico Global Studies program had previously arranged. One aspect of New Mexico’s water problem is social, a public lack of awareness of the water crisis known to water science but unknown and unconsidered by almost all. A late 2021 Thornburg Foundation/Water Foundation-sponsored water attitudes poll questioned a cross section of urban, suburban, and rural New Mexico voters across New Mexico.
I included the poll interpretation and data in the scholars initial Middle Rio Grande case study orientation and suggested they consider using that approach in their prearranged meetings. They asked the VIPs about New Mexico’s most important problems. None volunteered that water is a most important problem. The scholars asked, what about water? All VIPs agreed it was important. None knew much about it. Most indicated someone else is working on it.
The poll report explains that was the public reaction to the pollster. But once asked what about water, look what they said:
The truth is that many scientists and state staffers are working on water without adequate resources in this time of crisis but huge budget surplus. Few lawmakers are. No state appropriators are commensurate with the crisis. The Governor is a little in, mostly out,
Unless addressed, New Mexico water problems are terminal across New Mexico. If our people and our leaders don’t learn, understand what we must face and deal with, we are going to evaporate our people and economy.
I remember a meeting not that long ago with David Abbey, the legislative key financial staffer who presided at the right hand of Senator John Arthur Smith. This was around 2019, when the Water Advocates tried to get regional water planning reform legislation passed.
Abbey said New Mexico’s water problems are chronic. What I argued, and he would not accept, was that while water is indeed a chronic problem, hydrologic reality is catching up with us and severe global warming has overtaken us. What may appear chronic to a budget expert with little knowledge of water is actually a worsening full-blown crisis enveloping us right now. Failure to recognize the crisis and act to mitigate it and adapt has consequences. Just look around at the scarcity emerging. This is not drought. This is permanent.
Phil King recently observed that as a species, humans have failed miserably for four decades to ignore the warnings of expert scientists that we must mitigate greenhouse gasses. Similarly, now we have no choice but to adapt to having much less water now or see our descendants as climate refugees. When we overpump our groundwater, we are eating our seed corn.
Sweetwater Bright Spots to Close.
Dr. Phil King also observes opportunities for effective action abound. We can do this. We have to start. We have to go big. We love New Mexico and its people. We love our home places. We will take action.
State Engineer Mike Hamman in 2024 broke the Governor’s and Legislature’s essential lock on agency staff capacity. He won 27 of the 31 new positions he openly requested, all associated with general categories of endeavor.
The Legislature funded priorities and projects of New Mexico’s environmental values community represented by the Water Task Force workgroup addressing river stewardship and watershed health but not aquifer health. The Legislature also funded communities and community infrastructure.
Two Legislators provided allocations of their junior money to water. Senator McKenna allocated $200,000 to the State Engineer to fund OSE implementation of the 2019 Water Data Act. Rep. Marian Mathews allocated $160,000 for implementation of the 2023 Water Security Planning Act, the only appropriations by the Legislature for those named purposes. Thank you to Senator McKenna and to Rep. Marian Mathews.
The NM Bureau of Geology and Mineral Resources at NM Tech received half of what the New Mexico Department of Higher Education requested to provide reliable actionable data and information for New Mexico’s more resilient water future. Emerita Director Nelia Dunbar, also a NM Water Ambassador, reported last week the NMBGMR would fully fund the water education program for Legislators. The Bureau of Geology will ask again in 2025 for aquifer monitoring and mapping staff and capital money to drill the wells to provide the data that will cause us to wake up and decide to act.
Now, to all our readers. Please! Write your Senator and your Representative and ask that they fully participate in all the Water Education for Legislators programs during the 2024 Interim. We must change course or perish. They Governor and Legislators need to learn about our water crisis and provide resources to the water agencies and the people to find the transformative change New Mexico’s survival requires.
Part II – Co-Creation of a Sustainable Water Future for the Middle Rio Grande
Introduction to Part II
The past two years have set the stage for accelerated progress in managing New Mexico’s water resources for much greater resilience, as described in Part I, a 2023 summary report. Part II is about 2024.
Two years of action have been productive. Under State Engineer Mike Hamman’s adept leadership since January 2022, New Mexico created and began implementing pivotal strategies recommended by consensus, most were unanimous, of the 2022 Water Policy and Infrastructure Task Force. Progress in 2023 demonstrates a crucial shift in New Mexico’s approach to water governance, moving from historical neglect to a proactive path focused on resilience and sustainability. More leaders know New Mexico faces a profound water problem and are taking action. Fewer are ignoring or denying it.
Water Advocates 2024 Action Plan
Generous board member and public donations to the Water Advocates in November and December and our intensive planning work last fall made it possible for the Water Advocates to prepare the illustration below. It shows creation of a Middle Rio Grande Water Planning Entity and a substantial amount of preliminary work to set the stage for the Entity to be immediately productive in 2026 after its collaborative creation in 2025.
Leaders of several state and local government water agencies and institutions have expressed support recently for the technical plan to implement the 2023 Water Security Planning Act in the Middle Rio Grande. The illustrated parallel approach, presuming substantive progress is made starting NOW could result in completion of the Middle Rio Grande regional plan before the next decade. A sequential approach that waits until 1) the New Mexico Interstate Stream Commission has completed rules for implementation of the statewide program, and 2) doesn’t complete technical mandatory work and analyses in parallel throughout 2024 and 2025 would not allow completion of the Middle Rio Grande plan until 2033, at the earliest.
Motivation for Change
The Middle Rio Grande requires effective changes now to the status quo management of the Middle Rio Grande’s water resources. Our state officials have already dealt with a Texas legal motion and brief to expand the US Supreme Court litigation to include the Middle Rio Grande. The Court said no. Texas will certainly sue to enforce the plain terms of the Rio Grande Compact requirements that define the Middle Rio Grande’s share if we violate them.
If we don’t act now, and if the State Engineer continues to not regulate Middle Rio Grande excess water uses and allows New Mexico to violate the explicit compact water delivery requirements, the US Supreme Court will step in. This would be a gross failure of water management because overuse in the Middle Rio Grande deprives New Mexicans who live downstream of Elephant Butte Dam of their full 57% share of the water that the interstate and federal compact, a binding water sharing agreement, requires New Mexico to deliver through the Middle Rio Grande. A violation will show New Mexico can’t solve its own intrastate water allocation problem.
Continuing unsustainable water depletions in the Middle Rio Grande hurts the region. Every year that the Middle Valley depletes more groundwater than is sustainable, and depletes the flow of the Rio Grande more than our legal share, also eliminates a slice of future Middle Rio Grande water sustainability.
“If your in hole you can’t get out of, first stop digging.”
Emergency Reactions Versus Planned Actions
The Middle Rio Grande is depleting more of its legal share of the Rio Grande, directly, and through pumping groundwater from aquifers adjacent to the Rio Grande. The trend is bad. Inaction or counterproductive actions by Middle Rio Grande water purveyors and our federal and state governments has allowed Middle Rio Grande unsustainable uses of the river and our aquifer system to threaten current compliance. Governments must immediately react to prevent the compact violation.
The State Engineer has two choices. He can continue to rely on facts and persuasion, which is not working, or he can regulate. Regulation means a priority administration. The New Mexico Supreme Court in 2012 upheld State Engineer rules promulgated in 2004, giving the State Engineer the clear authority to make a priority call based on the best information available to the State Engineer. Pueblo sovereign water uses are exempt by law. The water rights that will remain in priority are the oldest, for irrigation. Rights to water developed later will be out of priority.
Reaction implemented for the 2024 snowmelt runoff season to prevent another round of highly demanding and distracting US Supreme Court litigation lasting a decade or more is essential. The reaction can’t be a singular event. It must continue and undoubtedly will bring on much litigation by the curtailed less senior water users, which include the Middle Rio Grande’s cities and the water for much of New Mexico’s economy.
Action taken for water sustainability is available to the Middle Valley through the illustrated plan that would implement the 2023 Water Security Planning Act in the Middle Rio Grande. Creating an agreed set of sustainable actions is superior to always reacting. However we must accept that the current compact compliance status requires the State Engineer’s emergency reaction in 2024.
Collaborative creation of a plan for the Middle Rio Grande’s water, economic, cultural, and environmental survival will require a concentrated effort beginning now to complete our plan this decade, so the plan can be implemented over the next.
Middle Rio Grande self-organization to refine, share, and implement the illustrated vision will shave many years off a more passive, don’t-act-until-the ISC-completes-its-rules-and-guidelines approach. Future generations of New Mexicans depend on all of us to recognize and Do our Parts, because Agua es Vida! Each year we allow the status quo of unsustainable water uses to continue diminishes the Middle Rio Grande’s future.
Two Essential Ingredients
The Middle Rio Grande requires two ingredients to accelerate the progress of 2022 and 2023 and bring that acceleration to our region, our home. One is a Middle Rio Grande initiative to self-organize to refine, share, and implement the illustrated vision. The other is money.
Self-organization is building but it requires governmental support and funding. Bernalillo County appropriated $200,000 for expenditure before June to initiate implementation of the 2023 Water Security Planning Act in the Middle Rio Grande. That funding could provide the resources required to complete “Phase 0” of the illustrated plan by then and to begin a program of public education and outreach regarding the facts of our water governance situation.
The volunteer NM Legislature’s disregard for New Mexico’s Water
Why its so important Bernalillo County appropriated $200,000 of one-time funds in the Middle Rio Grande. It’s because the 2023 Legislature, with unprecedented revenue surpluses available in 2023 to appropriate, passed the landmark 2023 Water Security Planning Act but failed to authorize the staff or provide the budget required for timely Interstate Stream Commission and regional implementation.
This custom and tradition of New Mexico’s Legislature is called out by the 2022 New Mexico Water Policy and Infrastructure Task Force in recommendation 2.7. Nonetheless, the legislature continued the custom and tradition in 2023.
That is a custom and tradition of the State of New Mexico, as water sovereign, must leave behind. The NM Legislature must put its money where its mouth is. The list of critically-important-to-New-Mexico’s-future laws passed by the Legislature, such as the 2019 Water Data Act, but very poorly funded given their existential importance, is lengthy.
It’s as if one branch of the sovereign does not understand Water is Life! Everyone must do their part! Especially the sovereign, all three branches.
Although the Governor’s proposed budget for the 2024 Legislature’s consideration includes 27 of the 31 new positions requested by the Office of the State Engineer/Interstate Stream commission and other long-overdue increases, it contains nothing to support work within New Mexico’s water planning regions. Water planning regions are the statutory heart of future New Mexico planning. Water planning pursuant to this act doesn’t happen without regional self-organization, per the new law.
Dr. Ladona Clayton, Executive Director of the Ogallala Land and Water Conservancy, and I, worked together to develop our joint recommendations that we presented to the Legislature’s Water and Natural Resources Committee on November 7, 2023. She and I are both NM Water Ambassadors, the brand given by the State Engineer who convened and chaired the Water Task Force to its members. Our panel included ISC Director Hannah Riseley-White and ISC Planning Program Manager Andrew Erdmann.
Dr. Clayton and I fear the Legislature will continue to neglect the immediate needs of regions that are in crisis and have a critical need for collaborative solutions. She and I also would like to see immediate changes by the State Engineer to use his discretionary regulatory authority to stop accepting permit applications supplemental wells to drain the Ogallala Aquifer completely dry, immediately threatening the survival of Portales and Eastern New Mexico University. They literally ran dry this summer or were drastically short, with dribbling showers and faucets.
The Middle Rio Grande problem is not as “in your face,” and, therefore not a matter of front-of-mind public concern, but that may only be in Albuquerque.
In the Middle Rio Grande, the State Engineer policies of the last century governing transfer of surface water rights to wells that pump a reliably uninterrupted supply of wet water, must stop. These policies remain unchanged, unlimited by nature, and unsuitable for a sustainable water future despite the fact they don’t protect either the river or the aquifer. These transfers are damaging and further endangering the Middle Rio Grande’s future.
Invitation to Learn More and Engage
The Water Advocates for New Mexico and the Middle Rio Grande invite all to learn more and engage. Participate in our monthly workshops, respond to our calls to action, and share this news with friends, family, and colleagues today.
The Issue – Who gets water when there isn’t enough? At a simplified level, the current New Mexico “Priority Administration” regulations, if enforced when there isn’t enough water, would provide much of the water to irrigators first, leaving very thirsty cities and towns. And with desperately thirsty cities and towns, the New Mexico economy would wither, taking down those irrigators as well as virtually everyone else.
New Mexico law provides a workaround. It allows for a community of neighbors on a common water source to create an agreement on how to “Alternatively Administer” water. If done well, such agreements could equitably balance the impact of water shortfalls and minimize the pain to the overall community.
An Opportunity –The 2023 New Mexico Legislature recognized the risks, and unanimously passed the Water Security Planning Act (WSPA, a.k.a. 72-14A-NMSA). While some encouragement would be helpful, the 2024 Legislature is poised to provide funding to vigorously implement the unanimous 2023 Act.
WSPA provides a formal guide for regions of the state and their included communities to come together and develop programs and policies (agreements) to share water equitably, consistent with physical reality.
The Act concurrently provides a mechanism for the regions and their communities to identify current and future problems, to identify needed infrastructure projects, evaluate and prioritize such solutions, and then, with the state’s help, seek funding to implement the projects.
The Goal – Together, the programs, policies and projects will form a plan to deal with regional water in the future. To work effectively and to provide equitable results, the planning process must involve proper consideration of input from all stakeholders – at the regional level to meet region-wide constraints, and at the community level for addressing localized problems.
A Prime Case – Let’s consider the Middle Rio Grande Region (from the Los Alamos Highway to Elephant Butte Reservoir). That area encompasses a big fraction of the state’s population and its economy. The Middle Rio Grande has an urgent problem – risk of expensive Compact violation. Accordingly, we want to start the planning effort promptly, in parallel with the state’s rule-making process.
We all draw from the same water source: the Rio Grande and the aquifer that lies under the river, which in turn are fed only by precipitation (rain or snow). That precipitation is highly variable.
Over the past decade or so, the Region has been regularly using more water than it is entitled to use. If unabated, the rapidly accruing debit (see figure on following page) will almost surely lead to lawsuits, astronomical taxpayer costs, and potentially, federal Supreme Court control over New Mexico water. And with a warming climate, more of the incoming surface water will evaporate leaving even less for use, which will drive groundwater users to increase their impact on the already-damaged aquifers.
We (virtually all of us) have become spoiled, accustomed to having and using plenty of water. You might remember that the last two decades of the 20th century were the wettest in 2000 years, but the past two decades have been among the driest. And significant further climate-based reduction is projected.
What’s Coming? – With grant funding, state concurrence, and nationally recognized coordinators, the Middle Rio Grande Water Advocates are convening a collaborative, broad, multi-stakeholder process to establish the well-balanced regional water resilience planning Entity that WSPA calls for. That Entity will conduct a multi-year, publicly driven and scientifically based water planning process leading to a consensus plan for program and policy agreements along with evaluated and prioritized infrastructure projects ready for legislative and other implementation funding.
For the MRG to have a viable water and economic future under changed climates, we can’t continue in a siloed race to the bottom. All interests must be represented, collaboratively participate, and be duly respectfully heard. The process must keep water at the forefront and develop a consensus on the best solutions going forward.
Bob Wessely has worked with and led the Water Assembly, now Water Advocates, for twenty-five years. Partnering with the Middle Rio Grande Council of Governments, the Assembly coordinated the planning process that resulted in the 2004 MRG Regional Water Plan.
In Bob’s previous 30-year career, he co-founded and served as Technical Director of SciSo, Inc., an Albuquerque software system engineering and management consulting firm supporting diverse industries nationwide. Although Bob holds a PhD in Theoretical, Solid-State Physics, at heart he is a systems engineer who enjoys finding solutions for problems important to NM and its communities, especially water.
