Water Rights … and Water Wrongs

While the rules about them are extremely complicated, “water rights” are simply your permission slip from the State to use water, if you can find it (often a big “if”).  Water rights are often called “paper water.”  Separate and distinct from paper water are collections of dihydrogen oxide molecules (H₂O).  Such collections are affectionately known as “wet water.”  All too often, people conflate paper water and wet water. The results can be seriously misleading or worse. 

Wet water can be neither created nor destroyed (with very minor exceptions).  But it can change form, from solid (ice melting) to liquid to gas (evaporating), and back.  Most water users deal with the liquid form.  It comes to us as precipitation, where the gaseous form of water condenses into liquid or solid form as rain or snow.  And then it migrates:  coalesces into streams/rivers, seeps into the ground, and/or evaporates back into gas.  We obtain wet water for use by diverting it from streams/rivers (“surface water”) or by pumping it out of the ground where seepage has accumulated either recently or over millennia (“groundwater”).  In some places, pressure drives groundwater naturally to the surface as springs, where it becomes surface water.

Paper water (permission slips) has four attributes.  They are (1) a maximum quantity of water;  (2) a location or point of diversion from the stream/river/well;  (3) a purpose and place of use; and  (4) a priority date when water was first put to beneficial use in that place.  When there is insufficient wet water in the stream/river for all of the water rights holders, New Mexico law allocates the limited water among permission holders.  It says that the oldest priority date user (“most senior”) gets all of his/her water; the next oldest can draw up to his/her limit from what’s left over, and so on down the priority date chain until the entire stream/river is used up, regardless of their location along the stream/river.  In that “strict priority administration” regime, the recent date water permission holders (“junior users”) may get no water at all.  New Mexico law also allows an exception for permission holders on a stream/river system to enter into shortage-sharing agreements with a different plan of allocation (“alternative administration”).  New Mexico law also allows permission slips to be bought, sold, leased, and/or moved, subject to State approval, except for domestic wells.

Water permission procedures were established long ago when almost all water use was surface water.  In the mid-20^th century, use of groundwater started becoming substantial.  The state created a new form of paper water called “permits.”  These were permissions to pump limited quantities of groundwater from a specific well for a particular purpose.  Recognizing that substantial groundwater pumping would place a drain on the river stream systems, the state required groundwater permittees to purchase offsetting surface water rights, presumably maintaining the overall quantity of demand on water in the stream/river system at pre-groundwater historical levels.  There are no similar constraints to preserve available groundwater.  Anticipating minimal groundwater impacts, New Mexico law also provides an exception where domestic and livestock wells routinely are permitted without offsetting water rights.  There are now 160,000 or more domestic wells, according to the Office of the State Engineer.  

Paper and wet water have different availabilities.  Between permits and water rights, New Mexico has developed far more permissions for use than there is – or ever was – wet water. New Mexico has no shortage of paper water (water rights or permits).  However, wet water is another story.  Surface wet water flows are highly variable, seasonally, annually, and across decades.  For example, tree ring studies have shown that the last two decades of the 20^th century were the wettest in 2000 years.  The first two decades of the 21st century are among the driest.  Climate studies project that New Mexico is facing another 25% reduction in surface water flows over the next 50 years (due to increased evaporation from higher temperatures).  Groundwater studies (and dry wells) have shown that in many places within New Mexico, groundwater supplies accreted over thousands of years are dwindling toward extinction.  Now and in the future, there are and will be serious water shortages across New Mexico.

Action is needed.  Among other considerations, the state’s economic well-being depends upon a reliable wet water supply for individuals and businesses.  Paper water cannot quench these thirsts.  Strict priority administration cannot meet these dependencies either.  For example, the cities have mostly junior water rights, but also the most New Mexicans.  We must collaboratively develop shortage-sharing agreements that will equitably serve as alternative administration regimes for those times of significantly reduced supply of wet water lest our water and economic security suffer. 

Opportunity presents itself.  The 2023 Water Security Planning Act provides a medium for regional and community water planning.  It encourages individuals and stakeholders to collaboratively design and prioritize actions to equitably adapt to much less water, thereby optimizing the communities’, the regions’, and the State’s future economic well-being within the water availability.

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Bob Wessely has worked with and led the Water Assembly, now Water Advocates, for twenty-five years. Partnering with the Middle Rio Grande Council of Governments, the Assembly coordinated the planning process that resulted in the 2004 MRG Regional Water Plan.

In Bob’s previous 30-year career, he co-founded and served as Technical Director of SciSo, Inc., an Albuquerque software system engineering and management consulting firm supporting diverse industries nationwide. Although Bob holds a PhD in Theoretical, Solid-State Physics, at heart he is a systems engineer who enjoys finding solutions for problems important to NM and its communities, especially water.