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Defining ‘Beneficial Use of Water’

SOCORRO – There is something quaint yet enduringly sturdy about the notion of “beneficial use” at the center of New Mexico water law.

“This most precious of resources belongs to all of us. Don’t be frivolous with it,” the drafters of the state’s Constitution seemed to be saying when, drawing on at least a half century of western legal tradition, they wrote this: “Beneficial use shall be the basis, the measure and the limit of the right to the use of water.”

Legal scholar Janet Neuman has called it an “incantation,” “an accepted catechism in Western water law.”

The old Socorro County Courthouse felt like we had stepped into an old church of Western water law last week when a bunch of Catron County residents (the ones in boots and jeans) and a small posse of water lawyers (mostly in suits) gathered beneath slowly turning ceiling fans in the spacious upstairs courtroom No. 1 to take another crack at hashing out one of the most interesting water law and policy questions facing New Mexicans today.

The question: whether the owners of the vast Augustin Plains Ranch near Datil can sink wells and pump groundwater – a lot of groundwater – maybe to irrigate their own crops or maybe to be piped to the Rio Grande Valley, where it could be sold to as yet unnamed users.

All those “maybes” make up the core of the legal dispute before Judge Matt Reynolds of the state’s 7th Judicial District. The ranch’s owners, represented by attorney John Draper, contend they should be given the right now, on paper, to claim the water, filling in the blanks later about where it goes and who uses it later “within a reasonable time” as the project is developed.

Attorney Bruce Frederick, representing the project’s opponents, argued that is about as far from the catechism as you can get: “We can’t be certain how or where or by whom this water might be used.”

Even if Draper wins the argument, it is only the first step. The state then must consider whether pumping the water would harm the neighboring community of Datil, where residents fear it will suck their own wells dry. But it has proven a difficult first step.

Herein lies the quaint, almost archaic-sounding notion of beneficial use at the heart of New Mexico’s water law.

The core idea is that the water belongs to the public. A water right is a legal right to use the public’s water. It has some of the characteristics of a property right, like owning the land beneath your house, but with a twist – the beneficial use doctrine says you have to put it to good use, in service of society’s interests, without wasting it.

The doctrine’s history is bound up in the ideas of the generation of European immigrants who swept across the region in the 1800s, establishing what became United States law.

“The climate is dry,” a Colorado judge wrote in 1882, explaining the concept, “and the soil, when moistened only by the usual rainfall, is arid and unproductive; except in a few favored sections, artificial irrigation for agriculture is an absolute necessity. Water in the various streams thus acquires a value unknown in moister climates.”

In New Mexico, the meaning of beneficial use is not defined crisply in law, instead “maintaining a flexible meaning dependent on the current concepts of public interest, waste and reasonable use,” then-state Assistant Attorney General Alletta Belin wrote in a 1998 opinion. But until now it has meant someone specific – a farmer, a rancher, an irrigation district, a homeowner, a municipality – has a need for water, a specific beneficial use in mind.

Draper is trying to persuade Judge Reynolds that such specificity is not required, something water experts say would be new in New Mexico, and which Frederick has been arguing would amount to illegal water speculation.

“Speculation in water has never been tolerated in Western water law,” Frederick told the court.

In times of drought, with long-term climate change expected to cut into supply even as New Mexico’s population grows, it is not hard to think of hypothetical uses. A drive along the river valley after last week’s hearing offered practical examples of what beneficial use means – a truckload of hay in San Antonio, the last alfalfa cutting sitting in fields, some irrigation ditches still running full despite this year’s drought.

But after a mostly dry decade on the Rio Grande, there is talk about the implications of another dry winter on the Rio Grande – the potential for shortfalls hitting farmers who depend on the water for the livelihood, and the risk that Albuquerque might have to dip into its emergency reserves of groundwater if surface water flows lag.

With Elephant Butte Reservoir near empty, there is serious talk about what might happen if New Mexico is unable to meet its water delivery obligations to Texas under the Rio Grande Compact, a potentially very expensive and legally sticky problem.

The question Judge Reynolds faces is whether such hypotheticals look enough like “beneficial use” to allow the Augustin Plains Ranch proposal to proceed.

UpFront is a daily front-page opinion column. Comment directly to John Fleck at 823-3916 or jfleck@abqjournal.com. Go to www. abqjournal.com/letters/new to submit a letter to the editor.
— This article appeared on page A1 of the Albuquerque Journal

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