What the Court of Appeals did not consider in its decision on Water Utility rights

When the New Mexico Court of Appeals ruled Monday on the Albuquerque Bernalillo County Water Utility Authority’s water rights for its drinking water diversion, the headline was the uncertainty over the legitimacy of the utility’s big drinking water diversion project. But as water lawyers and others in New Mexico ponder the implications of the 71-page ruling, a couple of other points jump out.

While the ruling itself focuses on a narrow point – does the utility have the necessary permit to be pulling native Rio Grande water out of the river so we can flush our toilets – some deep and unsettled questions in state water management and law are on display:

This review gives us pause to consider that there are substantial  issues awaiting consideration with regard to future policies governing water that has yet to be developed. Owing to our rulings in this Opinion, these issues concerning future overall management of the Rio Grande Basin and its water resources remain largely unresolved by this action.

And one of those chief unresolved questions, as the court notes elsewhere in its decision, is the lack of “adjudication” of the Middle Rio Grande, the legal process by which the courts determines who is entitled to how much water from the river. The contention is that the river is “fully appropriated”, meaning there is no extra water available for new uses. But the court observed the problem in that argument:

The Middle Rio Grande Basin may be fully appropriated, but that issue has not yet been adjudicated.

Thus the state, as has happened in a number of other recent water law battles, is faced with the problem of administering that which it doesn’t quite know how to count.

In this case, the court suggests a path forward – that the Water Utility could get a “non-consumptive” water use permit, allowing us to use the water to flush our toilets (and other indoor uses) as long as we return it to the river via the sewage treatment plant when we are done. So the fix may be possible in this case, but the deeper problem remains.

Janet Jarratt, one of the plaintiffs in the case, has posted the full decision (pdf) on her web site (which also has a lot of other nice New Mexico water documents).