New Mexico Geological Society Annual Spring Meeting — Abstracts

If current environmental conditions portend a drier and hotter climate for New Mexico, an immediate and costly response must be implemented to ensure the state’s vitality. In March 2013, the New Mexico state legislature unanimously approved a joint memorial recognizing that “climate change and drought are having a significant negative impact on available water resources . . . that local, state, and federal laws, policies and ordinances are inadequate for the purpose of proactive water resource management under existing environmental conditions . . . [and] that sustainable economic development is contingent on sustainable water resource management.” House Joint Memorial 9. While this joint memorial refers to the Upper Pecos River basin, it could just as well apply to the entire state. To address New Mexico’s “new normal” of a significantly reduced water supply, a special legislative session should be convened. First, the legislature should mandate a fundamental change of policy, by establishing experimental and applied hydrology as a fully-funded cornerstone for state action, including using state-of-the art technology for hydrographic surveys and monitoring of compliance throughout all of New Mexico, and incorporating the tools of adaptive management to meet the challenges of the resource’s changing circumstances within the framework of the constitutional mandate of the prior appropriation doctrine (public ownership, beneficial use, and the better water right given to earlier appropriators). See Hydrology and Water Law: Bridging the Gap (2006). Second, in order to effectuate a key component of the State Water Plan, the legislature should set the goal of ensuring completion of all current general stream adjudications within ten years. Third, in drafting legislation to govern new adjudications, which should be completed within ten years after commencement, the legislature should examine the Appropriative Rights Model Water Code, adopted by the American Society of Civil Engineers, along with ideas that have already been presented by the State Engineer and the Administrative Office of the Courts and any new suggestions from stakeholders and independent hydrologists. Among other proposed statutes in the Model Code, the legislature should consider adopting the Model Code’s requirement for existing water rights (pre-1907) to be declared within one year or be deemed forfeited. In addition to effective mediation mechanisms to be made available to all water rights claimants in a general adjudication, the legislature should set forth procedures for Native American rights to be handled through negotiation rather than litigation, as recommended by the Western Governors Association. Fourth, and most critically, the legislature should submit by joint resolution to New Mexico voters a constitutional amendment to cover the costs of this massive undertaking, of which the expenses of scientific research and adjudications are only a part, namely, an amendment transforming the severance tax permanent fund into the permanent water fund, the income from which would be used solely for water-related matters, and allowing the legislature by three-fourths vote in each house to withdraw a percentage from the corpus of the fund for emergency allocations, which might occur frequently as New Mexico adapts to its changing environment.