Water consultant: Use it or lose it

By Lif Strand

El Defensor Chieftain Reporter

lstrand@fasterhorses.com

   "Every day that goes by that you don't sink your well and put it to beneficial use is one day less of seniority should Arizona apply for water rights in your area."

   Howard Hutchinson, consultant for Catron County and member of the Soil Conservation Board, knows that his words are not idle threats. Hutchinson has been working with the county and the state of New Mexico on water planning for years, and is well aware that in the West, the first to use the water have the first right to it.

   Right now Catron County's northern water basins have yet to be adjudicated. Rights to the county's portion of 18,000 acre-feet of water shared with Grant, Luna and Hidalgo counties in the southwest corner of New Mexico are not secure.

   Hutchinson points out that this means that it is possible for water rights for these two areas to end up belonging to Arizona, Nevada and California -- water hungry states that are eyeing New Mexico's water very closely.

   Hutchinson attended a meeting recently with Grant County officials to discuss proposed legislation in the Senate and House right now regarding a settlement act for Arizona water lawsuits and reassignment of Arizona allocation waters.

   "It is possible that New Mexico could lose the 18,000 acre-feet of water or this legislation could become such an obstacle that we just couldn't get the water," Hutchinson told Catron County commissioners on Aug. 20.

   "The suggestion from legal analysis and Interstate Stream Commission staff is that we need more of a regional water authority to be the contracting entity with the Bureau of Reclamation for the four counties."

   Hutchinson contends that there are pitfalls with contracting with federal entities regarding water that could be avoided by the creation of a regional water authority which would be a fiscal agent for contracting and dealing with state and federal funds. Hutchinson recommended that the commissioners adopt a policy statement regarding participation in such a regional water authority with the other counties and municipalities, and he will bring the same proposal to the next Southwest Council of Governors meeting in Reserve on Sept. 4.

   "Luna and Grant counties probably are the ones in the most dire straights because they are totally dependant on groundwater," Hutchinson said.

   Hutchinson was involved with development of the area's original regional water plan in 1983 and feels that Catron County was well represented in that plan.

   "We sent 1,700 surveys out to every property owner in the northern part of the county," Hutchinson said. "We got back over 50 percent, which is a phenomenal response."

   Using statistical methods based on the data received and anticipating a percentage of ranches that would be subdivided in the future, we calculated water needs projections," Hutchinson said. "The revision will be more accurate."

   "Catron County still has a lot of black holes in its data on underground water," Hutchinson said. "The U.S. Geological Survey has done some fairly extensive studies, especially on the San Augustin Plains, Little Colorado and Pie Town aquifers. Information is coming in from hydrology reports on well depths and pumping capacity of subdivision wells. The regional water plan contractor has been tapping into N.M. State Engineer water data. But underground water always is a best guess. Our deteriorating forest conditions have contributed to the drop in water delivery."

   "I have made it clear to drafters of the regional water plan that Catron County has its own water plan," Hutchinson said. "As we get data updated, we will have to modify the county's plan based on population increase, economic development, etc."

   "Without a water supply there can be no industry or population growth, thus no economic development," Hutchinson said. "Economic development schemes must be incorporated to ensure water. It is not unreasonable to say to industrial park businesses, for example, that there must be a 50-year water supply without adversely affecting Rancho Grande Estates. The county should not incur liability for a big chunk of change for water. We need to think about if water isn't there, how do we get it there? We need to look at the infrastructure. Should we have a water pipe?

   Hutchinson believes that the prior appropriations doctrine -- "first in time, first in right" -- is so important to understanding water in New Mexico that it should be taught to school children from kindergarten on up.

   "At the last Blue Ribbon meeting I said we need to educate about prior appropriations, how our waters work," Hutchinson said. "There is no guarantee -- people have to understand that someday the state engineer may come out and say you have to cut your use because your neighbor has first rights."

   And it might not be just your neighbor who has first rights. If water has not been allocated via county, regional and state water plans, then other states can apply for those rights.

   "If our water planning region has identified that water for county use, the State Engineer can deny exportation on that basis without fearing a loss in federal court if Arizona should attack," Hutchinson said.

   But if the water, even though allocated, is not actually being used, it is vulnerable to forfeiture.

   "The only real danger would be Arizona sniffing around," Hutchinson said with reference to the water rights the county owns that is not currently being used. "It would be better to lease it even for a dollar a year -- get that water out and being used."

   "Prior appropriations is not to prevent waste, but to be sure all water is placed to beneficial use for all society," Hutchinson said. "The idea is to have that water working for benefit of all people."

   "I don't see that it would be good to get rid of 'use it or lose it," he said. "Phelps Dodge has thousands of acre-feet and their mines are closed down. They have pledged their water value for future reclamation. Now, does that constitute beneficial use, to just pledge the value of the water? Most water attorneys say no. That water could be forfeited and become unappropriated. Water rights are not like regular personal property, they are based on performance. Do we want thousands of acre feet of water locked up and sitting there doing nothing?"

   "Other states are looking at our water," Hutchinson said. "Proper appropriation applies across state lines. Arizona could appropriate Phelps Dodge water and transfer the right to Arizona."

   Draft copies of the regional water plan will be available at all public libraries after Labor Day (at a location in Quemado to be announced). The public is encouraged to review the draft.

   "When people see the draft, if we haven't identified current and potential use, contact me or the commission as soon as possible," Hutchinson said. Public meetings to discuss the draft will be held in Quemado, Reserve and Glenwood in September. Contact Hutchinson for more information or questions at (505) 539-2709 or e-mail aznmc@gilanet.com.