2006 10th Annual Water Assembly

Adjudication – Curse or Salvation?

Adjudication affects and is affected by drought, transfers, priority administration, banking, markets, compact compliance, treaty obligations, cultural values, and environmental concerns -- for both urban and rural residents in the Rio Grande Valley.

 Agenda for 2006 Water Assembly

1. Welcome and Introduction  [9:00 - 9:10] link to presentation
   Annual Report Of The Assembly  link to presentation
   Janet Jarratt, immediate past Assembly President
2. Summary of Regional Water Plan &  Link to Adjudication [9:10 - 9:20]
   Elaine Hebard, Water Assembly volunteer  link to presentation  (1159 kb)
3. Considerations as to why It matters [9:20 - 9:30]
   Janet Jarratt, water right owner link to presentation
4. What is Adjudication?  MRG Status?[9:30 - 9:50]
   DL Sanders, Chief Counsel
   NM Office of the State Engineer link to presentation
5. Pueblo Perspective [9:50 - 10:15]
   Ernest Coriz
   former Chair, Six Middle Rio Grande Pueblos Water Coalition link to presentation

Break [10:15-10:30

6. Current Process & Proposed Legal Construct [10:30-10:50]
   Jerald A. Valentine, Presiding Judge
   Lower Rio Grande Adjudication  link to presentation   (151 kb)
7. Summary Of Lessons Learned From Recent Adjudications, and Summary Of      Previous Adjudications [10:50-11:30]
   Peter Shoenfeld, NM Board Certifie Water Law Specialist link to presentation
   Susan Kelly, UttonTransboundary Resources Center link to presentation
8. Selection of Advocacy Representatives [11:30 - 12:00] link to presentation
   In order to ensure a balance among interests in our deliberations, we annually       select a Board of Directors with two representatives and an alternate chosen       from each of six advocacy areas.

Lunch [12:00-12:45]

9. Lessons learned from the Jemez [12:45 - 1:30] link to presentation
   Voices of the Jemez River (film)
   Gilbert Sandoval, chair Jemez River Basin Water User's Ass'n
   Peter Pino, Zia Pueblo Trial Admininstrator
10. Facilitated General Discussion (Lucy Moore) [1:30 - 3:00] link to presentation
    Questions we might consider:
    What should we do?
    What recommendations can we make?

  For adjudication in our region:
*  how do we minimize the time?  the cost?
*  what suggestions would we make?
*  what steps or process might we recommend?
*  what should be done – when and by whom?

11. Wrap Up & Adjourn [3:00 - 3:15]

Saturday, June 10
8:30 am to 3:30 pm
Dane Smith Hall
University of New Mexico

Assembly Flyer (pdf 193 kb)

Adjudication?

Adjudication affects and is affected by drought, transfers, priority administration, banking, markets, compact compliance, treaty obligations, cultural values, and environmental concerns -- for both urban and rural residents in the Rio Grande Valley.

Can we get beyond the incendiary word — adjudication-- and find incentives for a comprehensive water accounting? Can reluctant stakeholders be convinced that such bookkeeping is in their best interest? How can the multi-million-dollar, multi-decade adjudication process be streamlined? Unless this fearsome subject is confronted and tamed, there will be no means of implementing key portions of our hard-won water plan, and still further reduced likelihood of regional sustainability.

The Historical Context

Regional Water Planning – The all-volunteer Water Assembly was the key entity in coordinating and developing the Middle Rio Grande Regional Water Plan for Sandoval, Bernalillo and Valencia Counties. The plan (available at www.WaterAssembly.org,) was accepted in 2004 by all 19 local governments in the region and by the New Mexico Interstate Stream Commission. The Water Assembly is now focusing on key implementation aspects of the plan.

Not Enough Available Water - The Eighth Annual Assembly in 2004 identified an Urgent Shortfall Reality, namely that continued uses, even without drought, will eventually prevent us from meeting the State’s critical Rio Grande Compact obligations to deliver water downstream.

Uncertain Ownership – The Ninth Annual Assembly in 2005 dealt with the Overallocation of Water in the region, because the State of New Mexico has committed through permits and dedications substantially more water than there is or will be in the foreseeable future.

Doing Something About It - Now, the 2006 Tenth Annual Assembly will address Adjudication – Curse or Salvation? Participants will examine the nature, history, problems, and implications of water adjudication (or lack thereof) and then be asked to suggest less adversarial and less protracted processes for reaching agreement about who is entitled to how much water, and with what priority. If we succeed, we may have a chance of bringing water management in the Middle Rio Grande back to sanity.

Background on the Adjudication Issue

Introduction - The Middle Rio Grande is home to nearly 800,000 people and a fortune in high-dollar real estate. Politicians refer to the region as “New Mexico’s economic engine,” and yet, those who live here have no guarantees when it comes to the most basic of all necessities—water.

Ownership Uncertainty - Who owns what flows down the river? Who owns groundwater? Who gets to divert? Who gets to pump? How over-allocated is our fixed water supply, and what kind of confrontations are on the horizon regarding the legal right to this utterly essential resource?

The Priority Issue - New Mexico’s constitution declares that in times of shortage, water will be administered by priority: those who have the oldest rights—those who used the water first—have seniority over later appropriators. On the early side are Native Americans and acequia parciantes who first coaxed water from the river or its tributaries to irrigate crops in valley floodplains. On the junior end are teeming urban residents of Albuquerque, Rio Rancho, Bernalillo, Los Lunas and Belen, who are often uninformed about the life-giving liquid that spills from their taps with a flick of the wrist.

Adjudication Description - The law presumes that the rights of all water users in a specific basin will be determined by a judicial process; that the date the right was perfected and the specific amount of water to which each user is entitled will be set forth in a legal decree; and that ranking each right according to priority will preserve peace among the basin’s human inhabitants as well as the integrity of the hydrologic system.

No-Adjudication Description - But what if no judicial determination takes place? What if a set amount of water is subsequently parsed and divvied and shuffled to new uses without ever ascertaining the rights of the system’s senior users? Such is the present situation in the Middle Rio Grande, where the process of ‘adjudication’ has not begun, and where there are apparently no plans to initiate it in the foreseeable future. Instead, water transactions are handled piecemeal by the State Engineer, who grants or denies requests to transfer water rights with no assurances: the validity of the transferred right may or may not be upheld in a future adjudication, leaving both senior and junior appropriators in jeopardy.

Why No Adjudication - Why has adjudication been ignored in the MRG? State agencies generally cite the immense fiscal costs and time constraints that adjudication entails, but a greater stumbling block may be the prospect of discovering that too many junior uses have already been approved, and that in reality, there is not enough wet water to meet the guaranteed rights of seniors. There is no doubt that more water use permits have been issued than the basin can actually support, but until recently, the insufficiency was camouflaged by a wetter-than-average precipitation cycle, and supplemental flows from the San Juan-Chama Project and from groundwater pumping. It was the diligent effort to produce a water budget for the Middle Rio Grande by regional water planners that eventually revealed the deficit in 1998. Now we know that we are consuming between 55,000 and 110,000 acre-feet a year more water than is renewable.

Undetermined Obligations - So far, New Mexico has managed to remain in compliance with its Rio Grande Compact delivery requirements, and urban centers in the middle valley continue to grow on credit. But the policy of granting water transfers in the absence of cumulative accounting could be silently impairing all un-adjudicated senior rights, including those of the Pueblos. It could also be undermining federal endangered species and water quality mandates, as well as widespread efforts to preserve and restore the riparian ecosystem. Worst of all, it may well be erasing the options of future generations by saddling them with an impossible debt to the hydrologic system, and many more mouths than nature can provide for.

Doing Something About It - Toward implementing the Regional Water Plan and in keeping with its tradition of addressing challenging themes, the 10th Annual Middle Rio Grande Water Assembly will confront the bogeyman known as Adjudication.

 Following completion of the Regional Water Plan, the all-volunteer grassroots Water Assembly is now tackling yet another difficult challenge for the Middle Rio Grande Region:

How to Avoid the Impending Water Wars
How to Avoid Interminable Non-Productive Litigation
How to Talk Like Grownups about Water