A constitutional crisis

April 16, 2013


Suffering through this epic drought with the grim prospect of getting a mere tenth of its normal water allocation, members of the board of the Carlsbad Irrigation District voted unanimously last week to make a “priority” call on the Pecos River.

This may seem like an obscure event in an obscure region of what many consider the Nation’s most obscure and foreign state. But it is a drastic measure.

What happens in New Mexico around prior appropriation could have an impact that ripples through every state in the West.

It could see long drawn out law suits brought against the state and against Carlsbad by the oil and gas industry, the dairy industry, the cities and towns of Roswell, Hagerman and Dexter, and others whose water could get cut off by Carlsbad’s priority call. This could even evolve into a Constitutional crisis in New Mexico.

This is among the more significant moments in New Mexico water history. And because our climate is changing and drought is becoming more and more a normal condition of life here, how this matter is resolved foreshadows decades of water strife ahead.

And it puts tremendous pressure on the Governor and on her appointed State Engineer to get it right.

The New Mexico Constitution is crystal clear about prior appropriation. In Section 2 of Article XVI it states:
“The unappropriated water of every natural stream perennial or torrential, within the state of New Mexico, is hereby declared to belong to the public and to be subject to appropriation for beneficial use, in accordance with the laws of the state. Priority of appropriation shall give the better right.”

In other words, the date when water was put to beneficial use determines the seniority of a water right. And in times of scarcity, the most senior rights get their allocations first.

Section 3 slightly clouds the issue in some minds. It states “Beneficial use shall be the basis, the measure and the limit of the right to use water.”

It’s possible that the myriad lawyers who will represent the junior rights holders in the state – the municipalities, the developers, the industries – will argue about the “priority” of benefit, and try to show that use, not time, is the most important priority.  They would contend that it is more beneficial to more people to keep cities and industries watered than to irrigate a field of crops.

A priority call which allocates water to senior rights holders first – farmers and ranchers and Native American tribes – does not, of course, mean that they get all the water. It means they get all the water in the amounts that they have a right to.

I do not think that this has to evolve into a zero-sum game, in which there are winners who have it all and losers who have nothing.

Senior rights holders across the state do not want to force a constitutional crisis, one that amends Section 2 of Article XVI. They do not have the population to defeat the big city and big industry vote. And should prior appropriation be compromised or even eradicated, whole ways of life, whole cultures and rural communities would be threatened or destroyed.

And what would replace prior appropriation?

The Carlsbad Pecos River “priority call” may just make water enthusiasts of us all. This is a high stake situation. It needs to take place in full public view. And the public needs to keep itself informed.

This piece was written by:

V.B. Price's photo

V.B. Price

V.B. Price is editor and co-founder of New Mexico Mercury. He is the former editor of Century Magazine and New Mexico Magazine, former city editor of the New Mexico Independent, and long-time columnist for the late Albuquerque Tribune. His latest book is The Orphaned Land: New Mexico’s Environment Since the Manhattan Project. He retired as the editor of the Mary Burritt Christiansen Poetry Series at UNM Press in 2010. He has taught in the UNM Honors Program since l986.

Contact V.B. Price

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