I want to link you to another article on the settlement of the Texas v. New Mexico and Colorado case and what it means for us in the Lower Rio Grande Basin, which extends from Elephant Butte to El Paso and Mexico. But I realize that readers may not be familiar with New Mexico water law. As an introduction to this article, then, here are some basics on the laws that allow you to drink your next glass of water in Sierra County.
States are supreme in the United States. That is why the states created the federal government in the 18th century (not the “people,” as the US Constitution rhetorically says). Water law is state, not federal, law. New Mexico enshrined its water law in its constitution, the foundational document of state law.
There in Article XVI, §2, it says, “The unappropriated water of every natural stream, perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.” And in §3, it says, “Beneficial use shall be the basis, the measure and the limit of the right to the use of water.” If you read closely enough, these three sentences are all you need to know, except that the state legislature added groundwater to the meaning of “natural stream,” which, of course, it is, in a way.
Reading closely means that you notice that public ownership of water applies to “unappropriated water,” not all water. If someone steals the jug of water you just dipped from the stream, it’s a theft of private property. The thief could have dipped his own jug in the stream and avoided being a thief. This example, by the way, comes from a medieval explanation of Roman water law.
Besides establishing ownership of water, public and private, these three sentences define the right to use water. Notice that the right to use water is not water itself. Publicly owned water can be turned into privately owned water “in accordance with the laws of the state.” Those laws all stem from the constitutionally defined “right to use water.” And that “right” is defined by an appropriation, a use which is beneficial (the right’s “basis”), a way or method of achieving that beneficial use (the right’s “measure”) and a quantity of water that is beneficially used (the right’s “limit”). Furthermore, water rights are not equal but are better or worse depending on priority, which implies that rights are dated according to when the beneficial use first occurs.
This bundle of characteristics means that water rights have several elements, as they are called by the courts: they have a designated use, a location of use, a location where the water is appropriated (commonly called a “point of diversion”), a quantity of flow (not a quantity of water but a quantity of water over a given time, since an appropriation and use of water are dynamic actions in time), and a priority date of when that first appropriation took place.
I have said in other articles that we in Sierra County are facing two different but related water crises: we have a shortage of wet water and a shortage of dry water (the rights to use water). The almost unprecedentedly long drought, an extensive history of overuse (caused mostly by our desire to live in the desert but also live as if the desert has plenty of water), and the equally self-created warming of the climate have reduced our normally small water supplies. Now, the settlement of Texas v. New Mexico and Colorado asks us to acknowledge that the state has granted rights to use other people’s water in vast quantities and requires us to repay that theft.
That repayment will have serious consequences which will cost us money as well as lost rights. How these will be apportioned, we do not yet know. Everything is still in the air. That is the gist of the following article: Compliance is the only “Certainty” the Lower Rio Grande Settlement Provides – New Mexico Water Advocates. Just remember that the basic law of the state says, “Priority of appropriation shall give the better right.” If the state must administer water by priority, all rights are on the table. There will not be enough wet water to go around.
Take as an example, the City of Truth or Consequences. Kathleen Sloan has just reported that T or C has rights to 2,751.28 AFY of groundwater. Since a lot of that water is not used, one might think that T or C can lose those rights. It’s what the law we just reviewed says. You get the right through beneficial use. No use, no right. But the state has made it possible for cities to hold unused water rights for future development for 40 years. These rights are still under the requirement of use-it-or-lose-it, but they have a grace period to allow development.
But will that grace period protect those rights under the Texas v. New Mexico and Colorado Agreement? Will they be available for development during our dry water crisis? We don’t know, because T or C’s rights have a priority of 1939. That may seem old to us, but it nowhere approaches the priority of river water. If the state must go into some kind of priority management of its waters, T or C may find that its rights useless or curtailed. That might mean not only that there’s no extra water for development but there’s not even water for drinking much less water for those new trees people are so happily planting.