by John R. Brown
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 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.,  New Mexico’s indigenous tribal communities, as well as its historic acequias, offer examples of self-organization and adaptive cooperation. 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. 
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.
 Garrett Hardin 1968. The Tragedy of the Commons. Science 162:1243-8.
 Elinor Ostrom 1990. Governing the Commons. Cambridge University Press
 J. R. Brown and Rivera, José A. 2000. Acequias de Común: The Tension between Collective Action and Private Property Rights. Conference Paper. PDF. Constituting the Commons: Crafting Sustainable Commons in the New Millennium, the Eighth Biennial Conference of the International Association for the Study of Common Property https://dlc.dlib.indiana.edu/dlc/ https://hdl.handle.net/10535/1869
 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.