I recently had the pleasure of speaking at a conference hosted by the Utton Transboundary Resources Center at the UNM School of Law in Albuquerque. The conference theme was “Water Resilience in a Time of Uncertainty,” and presentations addressed the need for laws, policies, and processes that can help the West prepare for coming changes that will place increasing stress on our water resources. The focus was on ways to make our water allocation, management, and governance regimes more resilient, so that the region will suffer less harm from the effects of climate change, among other things.
I spoke on “Resilience and the Law” along with Dan Tarlock of Chicago-Kent law school–one of the great gurus of water and environmental law–and our moderator was Melinda Harm Benson, a professor of Geography & Environmental Studies at UNM. We discussed the question of western water law in relation to the concept of resilience, focusing primarily on the foundational doctrine of prior appropriation, and asking if it helped or hindered the pursuit of resilience. Our brief remarks focused less on the letter of the law than on how it has been applied over time, and while I primarily addressed practices in New Mexico, I think my remarks are more or less relevant in other parts of the West.
Since I am certainly no expert on resilience thinking, II emphasized a quote from a recent article by two authors who are, Melinda Benson and Robin Craig: “[A] resilience approach would reorient current research and policy efforts toward coping with change instead of increasingly futile efforts to maintain existing states of being.” In my view, a top priority of western water policy–especially in New Mexico–has been maintaining existing states of being. Having allocated as much water as possible to some “beneficial use,” New Mexico and other states now mostly protect the water use status quo, even where changes would be legally sound, economically preferable, and environmentally beneficial.
New Mexico, especially, seems to have defined success in water policy for several decades based on a few key principles: make sure water is put to use, prevent established water uses from being restricted, and limit the role of government in water management. These principles are reflected in some basic facts of New Mexico’s water management: the state remains mostly unadjudicated, largely because these proceedings are stubbornly and incredibly slow; it has almost never administered water rights by priority, despite the language of the state constitution; and it largely avoids the subject of water conservation in the agricultural sector, even though irrigation accounts for the vast majority of the state’s water usage. These practices have been criticized, but if the goal is to keep government from messing with existing water uses, every one has been a big success.
Like some other states in the West, New Mexico’s constitution provides for water rights based on prior appropriation, but also declares that water belongs to the public. For many years state water law and policy have been geared toward protecting private rights to water–that is, ensuring that private water rights are secured and protected from any interference. In the future, however, New Mexico and other states will need to take a broader view, emphasizing management of a public resource for the long-term good of the entire state. That would be a fundamental shift in focus for water law and policy, and I see it as necessary for building resilience to meet the enormous challenges of the future.