The New Mexico legislature has repeatedly failed to grapple with the problem of who owns deep brackish groundwater, and how its use will be regulated. My colleague Sean Olson has a story in this morning’s Albuquerque Journal that illustrates the mess that has resulted, as folks with development interests elbow one another out of the way:

SunCal Cos. is now claiming sole ownership of brackish water beneath its West Side property, a claim Atrisco Oil and Gas made in July.
In an application to the Office of the State Engineer filed late last month, SunCal claims it retains all water rights on its land under an agreement with Atrisco signed in December 2006. The agreement was part of a $250 million deal for SunCal to buy the land formerly held by the Atrisco land grant heirs in its corporate successor Westland Development Co.
Atrisco CEO Peter Sanchez said New Mexico water law is clear that the water source belongs to Atrisco.
“I think their claim is an example of some of the confusion right now due to the lack of law and jurisdiction over these issues,” Sanchez said.

For an economically efficient property rights system to work, you need three things:

• exclusivity
• transferability
• enforceability

We seem to have none of that right now, but rather a situation that encourages people to drill and claim as fast as they can. This is a recipe for disaster.