24th Annual New Mexico Water Dialogue

Balancing Our Water Needs: Adjudication and Alternatives

By Lucy Moore

Water users and managers from all over New Mexico met on Jan. 11 at the Indian Pueblo Cultural Center for the best lunch around—and also to discuss how to balance the water needs in our state. After 24 years this informal gathering, open to all, has developed a special culture based on mutual respect, appreciation for the needs of others, and commitment to open, inclusive, creative dialogue.

This year we tackled adjudication and looked at alternatives, hearing panel presentations in the morning and breaking into discussion groups in the afternoon. Below is a synopsis of some of the breakouts to give a flavor of the richness of the dialogue.

Tribes and the State Water Plan: Tribes are separate sovereign nations but share a lot with their traditional rural neighbors. Like these communities, they have a lot of challenges related to the economy, education of their children and health of the environment. Their culture, economies and daily lives depend on an adequate supply of accessible, clean water. Yet many tribes do not participate, or participate minimally, in the state water-planning process. Those at the Dialogue meeting offered reasons:

There are so many competing priorities, deadlines and emergencies to deal with, planning can slip from the top of the list.

The long and often painful history between the state and tribes has resulted in a level of mistrust that can keep tribes away from the planning table.

Some tribes may fear that the adjudication of their water rights might be adversely affected by their participation in water planning or by sharing water data with the state.

Those in this group agreed that tribes can play an important role in water planning if they choose to participate. By offering their cultural and traditional values to the process, the product will be a more accurate reflection of the richness of the state.

Shortage Sharing Strategies: In recent years, water availability has been unpredictable at best and non-existent at worst. This group identified two causes of water shortages in New Mexico: periodic drought and over-appropriation of water—and noted that a shortage crisis has been the driver for voluntary shortage-sharing agreements on the Pecos and on the Lower Río Grande. Cities, communities, farmers, environmental interests, tribes and others can come together to figure out how to share water that is limited by Mother Nature, by the interstate compact with Texas, by an endangered species, or other federal or state actions. The crisis may provide the impetus, but there are other reasons to come to agreement on sharing water, such as a more secure future and to build relationships and a sense of community with fellow water users.

The group suggested that shortage sharing agreements could develop from the grassroots up, as water users get together out of necessity and create their own solutions. Or, they can be mandated by political leadership. In any case, said participants, those negotiating for water sharing, need to develop shared objectives and have a respect for the needs of their neighbors. One strategy is water banking, where water is stored during times of surplus and then shared by users in dry times. There are technical challenges in the effective, safe storage of water, and there are institutional challenges to storing water, for instance, water that is accounted for in compacts with other states.

Instream Flow: This group tackled a slippery subject, instream flow, whose status is unclear in New Mexico. It is not one of the listed beneficial uses in water law, which include municipal, agricultural, industrial and domestic, but it is seen by many as a legitimate use that needs recognition and protection that comes with beneficial use designation. The benefits from instream flow—simply a natural flow in the river—are enhancement of quality of life for people who enjoy the sight and sound of the river as well as the inherent value to the ecological system and habitat for fish and wildlife. In addition, there are economic benefits in increased tourism and property values. Finally, it can be argued that the river itself has a right to be flowing. The challenge, of course, is finding rights for instream flow in a state where water is already over-allocated. Participants said that management and timing of flows and deliveries, as well as transfers and dedications of existing water rights, could create water for the river. “If there is agreement among water users that instream flow is needed, there is a way to make it happen,” they concluded. The challenge is building that coalition of interests to push for it.

There are three keys, they concluded, to making instream flow a reality:
Collaboration to support instream flow as a beneficial use
Legislation to solidify instream flow as a right
Tools for implementing instream flow—rights transfers, agreements, dedication, etc.

Meaningful public involvement: This group spoke from experience. A variety of approaches are necessary; there is no “one size fits all.” They did identify keys for successful public involvement in water planning:
Begin public involvement as early as possible in the development of a plan/project.
Plan in advance for a well-funded, well-publicized event with good materials and presenters.
Reach people where they’re at and connect in ways that are comfortable and appropriate in terms of language, location, timing, subject and media outreach.
Make sure the public can participate fully, that they are educated on the topic, have support such as transportation and childcare, and are welcomed into a respectful, comfortable atmosphere.
Give feedback so that participants know that their contributions make an impact.

Although many processes, such as NEPA (National Environmental Policy Act), legally require public involvement, the group concluded that there are better reasons to include citizens in decision-making: It is the right thing to do in a democracy; it results in a better outcome; it creates dialogue and relationship among different interests.

Other topics covered in the breakout groups:  What does “impairment” mean? There are several kinds of impairment—legal and practical to both quality and quantity of water, to our compact delivery obligations to Texas—and as many causes, including climate change, demands of endangered species and compacts, salinity from irrigation, groundwater pumping, etc.

Infrastructure in settlement agreements: Many water rights settlements are sweetened with badly needed infrastructure projects to treat, pump or deliver water. Leadership and political will can make these projects a reality, and often it is an option preferable to litigation and can include other benefits besides those related to water. Two examples: San Juan Water Rights Settlement (New Mexico and Navajo Nation) and El Paso Water District and Elephant Butte Irrigation District.

Data acquisition and management: Lack of good water data makes decision-making a game of chance. Problems include lack of funding, poor coordination among data gathering agencies and groups, lack of access to the data, the rural nature of the state, and, in some cases, a reluctance to share data for reasons of confidentiality or fear that it will be used against the data provider in some way. There is vast knowledge and information among traditional communities, and citizens may be willing to be trained in water data collection techniques.

“Adjudication Lite”: Would it be possible to streamline or make more efficient our long and cumbersome adjudication process, perhaps through collective adjudications of the smaller claims, or by convening the large water users to reach agreement before the adjudication begins? Or perhaps effective administration of water rights could minimize the need for adjudication. Most users are more interested in “wet water” than in the paper right.

Policy considerations in the 2018 State Water Plan: The Interstate Stream Commission offered updates on its water plan development, including highlights from the New Mexico First Town Hall on water planning, where the need for good, accessible data, infrastructure funding, collaboration and communication among agencies was discussed.

What does it mean to own a water right? A water right is not just a “right” but a privilege and a responsibility, and its meaning is changing all the time. Look back 50 years or ahead 50 years; it is a very different picture. Today more than ever it is critical to be realistic about saving and sharing water.


Rogue topics

Participants chose their own topics, including:
“Sharing the pain” of shortages and the need for equity
Need for better decisions on conserving and distributing a finite resource
The need for better education, outreach and communication among experts and citizens
How to come to agreement on the “value”

Complete summaries of each breakout group can be found at

Lucy Moore, facilitator and co-founder of the New Mexico Water Dialogue, is a mediator and author.

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