Water Administration and Law in New Mexico

Border GovernorsOctober 21, 2005

Marilyn C. O’Leary

Utton Transboundary Resources CenterUniversity of New Mexico

School of Law

New Mexico Water Law Basics

Prior Appropriation

• Surface Water

• Ground Water

• Conjunctive management

• Water is a property right

First in Time = First in Right

Beneficial use

Dual Aspect

• Private use

• Public right– All water belongs to the state and is subject to

appropriation for beneficial use

• Is a use right that is a property right

Beneficial Use

• Beneficial Use is the Basis, the Measure, and the Limit of water rights in the West.

– The Basis: A water right is based on when and how much water is first put to beneficial use.

Beneficial Use (cont’d)

– The Measure: The amount of water of the right is determined by the amount put to beneficial use.

• New Mexico water administration is partly administrative (state engineer) and partly judicial (adjudications)

Water management structures that have evolved in New Mexico

• Acequias• Conservancy Districts and Irrigation Districts• New Mexico Office of the State Engineer • Interstate Stream Commission • Interstate Compacts • National legislation – ESA, CWA, NEPA • Tribal Waters • Water Markets

Office of the State Engineer

• Engineer

• Appointed by the Governor

• Administers water rights– surface water– groundwater 

ACEQUIAS

Ground water

• Declared basin– Reasonably ascertainable boundaries

• Overdraft issues

• 7 binational aquifers, 4 subject to administration by State Engineer

Surface water

• 8 Interstate compacts

• 2 international implications– Rio Grande– Colorado

Interstate Compacts

• Like a treaty between states.• Control the quantity of water coming into

and leaving the state.• New Mexico is a party to 8 interstate

compacts.• The Rio Grande Compact, The Pecos River

Compact and the Colorado River Compacts are the most significant.

Interstate Compacts (cont’d.)

• Rio Grande Compact– Colorado, New Mexico, Texas– Colorado delivers at Otawi gage– New Mexico delivers at Elephant Butte

• Storage and delivery issues

• Effect on recreation and fish

Interstate Compacts (cont’d.):

• The Colorado River Compacts – The City of Albuquerque owns 48,200 acre feet of the

San Juan-Chama water.

• Constructing infrastructure to divert, filter, and deliver water from the Rio Grande.

• Project includes an inflatable, adjustable-height dam which filters-out fish and diverts San Juan-Chama water from the Rio Grande, and miles of underground delivery infrastructure.

• Expected completion - 2007.

Interstate Compacts (cont’d.)

• Pecos River Compact - Texas and N.M.– Signed in 1948.

– New Mexico failed to meet its delivery obligations.

– Texas sued New Mexico.

– Court orders New Mexico to repay Texas in water.

National Legislation

• National Environmental Policy Act (NEPA)

• Endangered Species Act (ESA)

• Environmental Protection Agency regulations (EPA regs.) – Safe Drinking Water Act– Clean Water Act

NM Environment Department

• Sets water quality standards

• Surface, ground, and drinking water

• NM Environmental Improvement Board

• NM Water Quality Control Commission

Programs and Initiatives

• Paso del Norte TF – NGO– NM, Chih. Tx.

• SWCERP – NGO– Ground water quality– Socioeconomic conditions – Along border

State

• Water Trust Board– Grants for water projects

• NM Border Health Council

• NM Chihuahua Border Commission– Water Table

Federal

• IBWC– Implements treaties and minutes– Provides funding for assessment studies

• BECC, NADBank, Border 2012

• Good Neighbor Environmental Board

• Gov. Richardson interested in state and local initiatives

Issues

• Mimbres Valley Basin– Palomas, Columbus– Large transnational aquifer

• Good candidate for binational cooperation

• Local effort

• Water quality and infrastructure concerns

Issues

• Transboundary Aquifer Assessment Act

• Purpose– To understand hydrogeology of transboundary

aquifers

• Priority aquifers in NM– Hueco Bolson and Mesilla

Cooperative efforts

• Border aquifer map

• Data sharing– Sandia National Labs water portal– Bingaman bill

Water Markets

• There is a market in water rights.

• Seen as a way to reallocate water.

• Water banks exist.