The first day of Rio Grande deliveries of runoff to Elephant Butte in November from Albuquerque’s Central Ave. Bridge, shot on Atlanta Film Co Euphoric 100, Olympus OM10. Photo copyright Rin Tara

A guest post from my Utton Center colleague and Colorado River research collaborator Rin Tara, staff attorney and water policy and governance analyst at the Utton Center, University of New Mexico School of Law.

By Rin Tara

Over the last year, I had the joy of working with John on a law review article addressing potential risks to New Mexico’s San Juan-Chama Project water supply. The paper, titled Last Call: The Limitations of New Mexico’s Existing Water Management Framework in the Face of Reduced Colorado River Water Deliveries, was published earlier this month in the Colorado Environmental Law Journal.

The purpose of the project was to dig into the law surrounding the New Mexico’s San Juan-Chama Project, which imports Colorado River water into the Rio Grande Basin that has become vital to water supplies in Santa Fe, Albuquerque, and New Mexico’s Middle Rio Grande Valley. Our goal was to understand the durability of New Mexico’s annual Colorado River deliveries. The short summary of our learnings is that these deliveries are vulnerable to provisions built into the legislation. The sections below are pulled from the paper, which I (self-servingly) recommend everyone read in full.

In 1962, Congress passed an Act authorizing the construction of the Navajo Indian Irrigation Project and the beginning stages of the SJCP. 76 Stat. at 96. The Act states that:

[T]he Secretary shall operate the project so that there shall be no injury, impairment, or depletion of existing or future beneficial uses of water within the State of Colorado, the use of which is within the apportionment made to the State of Colorado by article III of the Upper Colorado River Basin compact, as provided by article IX of the Upper Colorado River Basin Compact and Article IX of the Rio Grande compact.

This passage references two sections of the UCRBC. Article III of the UCRBC establishes percentages of the annual Colorado River flow allocated to each Upper Basin State.153 New Mexico, as noted earlier, is entitled to 11.25 percent of the Upper Colorado River Basin Colorado River allocation. Colorado, in contrast, receives 51.75 percent. Although the Upper Basin states are subject to significant Colorado River curtailment within the Upper Basin should they exceed their UCRBC percentage allocation, sometimes referred to as the “penalty box,” New Mexico may be forced into curtailments before exceeding their full 11.25 percent allocation. This Act is worded such that New Mexico is not only prohibited from exceeding its 11.25 percent cap on Colorado River water usage, but New Mexico may also be required to curtail its SJCP water usage if the SJCP water diversions interfere with Colorado receiving its full 51.75 percent of the Upper Colorado River allocation. This language is significant because it permits Colorado to require New Mexico to reduce its SJCP water use if Colorado determines that the SJCP diversions are impeding Colorado’s ability to make full use of its Colorado River water.

We note

that there will never be a priority call for SJCP water because the SJCP allocations exist outside of the prior appropriation system. Instead, priority calls are possible for users whose SJCP allocation has been reduced so much that the water users’ other water rights are insufficient to meet their needs. A loss of SJCP water would create a cascade of water shortages, since users would be drawing more completely on other sources, which would create water stress on allocated water that originates in the Rio Grande Basin.

As anyone who follows this blog knows,

the broad challenges of meeting possible Colorado River shortages are mirrored in New Mexico’s water management obstacles. Just as prior appropriation does not serve the Colorado River Basin broadly, it does not serve New Mexico. New Mexico has a cultural history of water shortage sharing, which draws a strong contrast from many other western states like California. As water shortages in the West continue to worsen, shortage sharing will be a critical part of water management. While prior appropriation has been durable up until this point, we have no past data that reflects our current reality. If existing norms are no longer effective for managing water shortages, then existing legal structures will also be ineffective. Fortunately for New Mexico, within the state, there are flexible systems of water management that allow water users to adapt collaboratively to reduced water availability. Acequia water management presents a community-centric model for shortage sharing, repartimiento. Similarly, the MRGCD also exemplifies a collaborative water governance system that does not rely on priority calls. Instead of priority calls, the state can instead look to these water-sharing models that more accurately reflect the cultural values of the state and share the inevitable economic burdens of reduced Colorado River water deliveries.

Although these discussions tend to raise blood pressure, I believe they are worth having now, before water stress makes these conversations feel all but impossible. New Mexico is uniquely situated to handle these challenges with creativity and set a new standard for handling the continued Colorado River shortages, basin-wide.