BRINGING WATER RIGHTS ADJUDICATIONS INTO THE 21 ST CENTURY: THE NEED FOR SWIFT DETERMINATION IN AN AGE OF LOOMING DROUGHT The Albert E. Utton Memorial Water Lecture by Jim Dunlap New Mexico Water Resources Research Institute 2018 Annual Meeting Las Cruces, New Mexico October 17, 2018
[No. 1: Title Slide] Good afternoon! I would like to thank the New Mexico Water Resources Research Institute for their invitation to present the Albert E. Utton Memorial Water Lecture this year. This is an honor that I very much appreciate. I had the privilege of working with Al Utton when he and I served on Governor Gary Johnson’s Blue Ribbon Task Force on Water. I considered him a good friend, and I soon found that when Al Utton spoke, we all listened. [No. 2: FAQ Adjudication Slide] Soon after I took office at the ISC, I decided one of my main goals would be supporting the completion of water rights adjudications. We need to have an inventory of water rights in every water basin. We need to know exactly who owns what in terms of water rights, including the amount of their rights and their priority dates. In my opinion, the State Engineer cannot adequately administer water rights without that information, and the best way to get it is to adjudicate all of the water rights in the state. If we do not get our adjudications moving and complete them in a reasonable time frame, our state may not be able to meet its compact obligations to other states. Nor will the State Engineer be able to authorize the quick transfers or exchanges of water rights that will be necessary to handle water shortage crises as they crop up in our state. We can no longer stick our heads in the sand and hope we can continue getting by without priority calls or other State Engineer administration. [No. 3: Water Rights Slide] 2
New Mexico and other Western states follow the doctrine of prior appropriation, which essentially means that the first person to spend money to divert and use water gets to use it. The second person to spend money to put water to beneficial use has the second best right, and so on. Once a water source is fully appropriated, no one else can obtain a new right to use it. If they want to use water, they must lease or buy someone else’s right. Also, in times of shortage, the person with the oldest water right gets to use water first. In other words, he can receive all of his water before the water right owner next on the priority date timeline receives one drop. In New Mexico, the most senior water right holders are the Indian tribes and pueblos, followed by acequias and farmers. Municipalities and industrial users tend to hold more junior rights. [No. 4: Surface and Groundwater Basins Slide] The prior appropriation doctrine was the custom before the State, or even the Territory, was established. The prior appropriation doctrine is embodied in the Water Code, which was adopted in 1907. Originally the Water Code applied only to surface water. New Mexico has six major surface water basins. All surface water in the state is fully appropriated. Because water is owned by the state, you usually need a permit to use it. Permits are issued by the State Engineer. Any surface water rights used before 1907 were grandfathered in and do not require a permit. Today, “pre-1907” water rights are the most valuable. The Groundwater Code was passed in 1931 at a time when farmers who used wells needed a permit establishing their water right in order to satisfy bankers that they would be able to keep farming. The State Engineer obtained jurisdiction over groundwater only when he declared a groundwater basin. The State Engineer declared the last groundwater basin in 2005, so he now has jurisdiction over all 39 groundwater basins in the state. 3
[No. 5: Hydro Connection Slide] In most areas of the state, groundwater is hydrologically connected to a surface water system. Beginning in 1963, state courts recognized this connection and authorized the State Engineer to place conditions on groundwater permits in order to protect surface water from the effects of pumping groundwater. [No. 6: AWRM Slide] In response to a very dry year in 2002, the Legislature, in 2003, directed the State Engineer to promulgate regulations for water right administration. State Engineer John D’Antonio then developed the Active Water Resource Management regulations. Adopted in December 2004, these regulations provide for the creation of water districts, the appointment of water masters and other tools to be used in case of a priority call or in lieu of a priority call. If a priority call or other administration is required, water rights are administered by the State Engineer according to court adjudication decrees. AWRM regulations provide for alternative water management to extend water supplies and avoid priority calls by authorizing water sharing through water banks and allowing expedited transfers. State water right adjudications provide an important, and in my opinion, necessary inventory of water rights in each stream system. That inventory can be used to implement State Engineer priority administration in times of shortage when alternatives fail, such as shortage sharing agreements, water rotation, water banking or water right transfers. [No. 7: Adjudication Slide] Adjudications determine who owns what water rights within a particular stream system or underground water basin. The legal framework for adjudications is set out in sections 72-4-13 through 4
72-4-19 of the New Mexico statutes. Practically speaking, a water rights adjudication is a quiet title action. Once it is completed, the ownership of water rights will be determined. In New Mexico, water rights adjudications are a function of the judiciary. The State Engineer does act as a technical expert in the adjudication. An adjudication decree is a “court blessed” and binding inventory of water rights, and it typically provides the best evidence of the existence of a water right. Both state and federal courts have exercised jurisdiction to adjudicate water rights in New Mexico. Under the 1952 McCarran Amendment, the federal government has waived sovereign immunity with respect to water rights adjudications. This is significant because the federal government lays claim to very large amounts of water, both in its own right and as trustee for Native American tribes. Most of those rights have the earliest priority dates and can now be adjudicated in state court. However, it is important to remember that, under the McCarran Amendment, a state water right adjudication must be a general stream adjudication involving all water users in the basin. Adjudications are run like ordinary lawsuits. A complaint initiates the adjudication, and potential water rights owners are joined in the suit. The complaint may be filed by any water right claimant or the state. Regardless of who starts the suit, the State will be the plaintiff and all other parties will be defendants. [No. 8: Hydrographic Survey Slide] Before or during the lawsuit, the State Engineer conducts a hydrographic survey to determine where and how water is used. State Engineer technical staff use aerial and satellite photos from various years, as well as records in water rights files, to determine historic beneficial use. Field investigations 5
verify historic and current water use. The hydrographic survey report filed with the court contains water right abstracts, maps and other information to describe each water right. Based on the hydrographic survey and other available information, the State Engineer sends offers of judgment to individual water rights holders. Each offer is part of a separate subfile, or mini lawsuit, and there can be thousands of subfiles within a single adjudication. [No. 9: Adjudication Slide Again] The water right owner can either accept the State Engineer’s offer or dispute it. If the offer is accepted, the court will enter a subfile order establishing most, if not all, of the elements of that particular water right. The elements of a water right include the owner, the amount of water, the point of diversion, the place of use, the purpose of use, and the priority date. If an offer of judgment is refused, that particular water right is litigated in a subfile proceeding. A subfile order establishes a water right between the individual water right claimant and the state. Once all subfile orders are entered, an errors and omissions phase ensures that all information contained in a draft decree is correct. The adjudication then enters the inter se phase, during which individual water right owners can challenge the subfile orders establishing the water rights of other parties. After the inter se phase, a final adjudication decree is entered, which determines the water rights of all claimants. If the adjudication is conducted in sections, the court will enter a partial final decree for each section. Significant water rights, such as the water rights of a tribe or pueblo, may be decided in an expedited inter se before all other subfile orders have been entered. This procedure was used to enter the water rights decrees for the Jicarilla Apache and Navajo Nations in the San Juan River Basin. 6
Recommend
More recommend
