I forgot my usual Inkstain link last week to a piece I wrote for the newspaper about the strange world of rainwater harvesting law in New Mexico. David Zetland was on about this last September, asking about the legality of rainwater harvesting in various U.S. states. My short answer, in the comments, was, essentially “kinda sorta maybe” for New Mexico.
My longer answer, in last Tuesday’s Albuquerque Journal, was that it depends on what you’re using the water for (some sort of sub. or ad maybe req.):
This goes back to the first part of the state’s policy: the rule that when you’re capturing rainwater, you can’t reduce the runoff that would have come off your property “in its natural, pre-development state.”
In the strange world of water law, the portion of the rain and snow that falls on your property that would have run off before it was developed isn’t yours. It belongs in a legal sense to the myriad water rights holders downstream from you. It can be used by farmers and cities that have a pre-existing right to draw water from the state’s rivers and streams for their use. Or the water can be used to meet New Mexico’s legal obligations under the Rio Grande Compact to deliver water to Texas.
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In the strange world of water law, the portion of the rain and snow that falls on your property that would have run off before it was developed isn’t yours.
I have a few questions.
1. Since the portion that ran off before development was probably never measured, how can you know if you are changing it.
2. Is the portion that ran off a ten year rolling average? If so, what years? Drought years? Wet years?
3. Can you claim that the water that you captured did not come from the run off but from the water that would have evaporated or would have soaked into the ground? Can you claim ‘microclimate’ to say that your runoff differs from your neighbors?
4. What does ‘developed’ mean? Does it mean having a house on the land? Having a ranch? Using the land for pasture? Before a particular arroyo formed, whose formation was driven by events outside the stated land? Or, as an extreme case, before humans came to North America from Siberia. These humans changed North America significantly. They ‘developed’ it by killing off most of the large mammals, predators and prey. Water patterns changed. Does development extend back to when Mexico owned New Mexico, as a number of water rights laws do?
Can someone explain the legal meaning of the sentence quoted at the top of my comment? Thanks.
Eric, Colo water law is more convoluted than NM. But your questions are not germane to the time the laws were implemented, as such questions were not asked then. Nonetheless, we sorta know how much impervious affects infiltration and evaporation, complicated by lawns which are semipervious. Likely one can only claim microclimates after the property owner provides a study.
Best,
D
So I guess you’re free to install an exempt well on your property that may impact downstream senior water rights, but don’t try to capture rain falling on your property to augment the aquifer below you. Seems kinda backwards to me. NM is supposed to have unified system of rights for surface and groundwater. You would think that type of system could figure this one out and get it right.
Chris –
That’s a great point re the wells, though the New Mexico courts are close to fixing the domestic well exemption. But I think the story’s closing quote pretty much captures the problem. It’s from a 1968 National Research Council report on Colorado River issues: “Laws, like dams, can be altered or removed, but with obviously greater difficulty than was associated with their creation.”
Eric –
Those are all great questions, which are unanswered in the law. One of the fine traditions of western water law is to sort these sort of issues out in court, because of the difficulty of amending laws in response to changing conditions. See the NRC quote.
Amusing to consider that in the UK, a lot of flooding is blamed on the run-off from hardened urban surfaces being too fast compared to what was previously the case.
James –
We have that problem here too. There’s a bit of tension between the issue of hardscape runoff and the apparently conflict water law provisions I describe in my story.