Does our desert city have the right to drink from the Rio Grande?
by Christie Chisholm, Weekly Alibi, December 15, 2011
When people in Albuquerque turn on their faucets, a little bit of the Rio Grande comes pouring out. That’s because on Dec. 5, 2008, the city stopped relying solely on a rapidly dwindling aquifer. Our water utility flipped a switch, and the San Juan-Chama Drinking Water Project came online.
The idea behind using river water was to lessen the strain on our underground supply. If it worked, the aquifer would begin to replenish itself, and the city would avoid catastrophe. Without a change, severe water-quality problems and region-wide subsidence (i.e., sinking land) were estimated to be about three decades away.
The good news is the project seems to be working. The bad news is the New Mexico Court of Appeals just ruled the Albuquerque Bernalillo County Water Utility Authority doesn’t have the rights for the Rio Grande.
The Nonexistent Permit
Water rights in the desert can be tricky. For the Drinking Water Project, there are a few elements at play. First, the water used in the project is San Juan-Chama water that’s carried downstream from Colorado through the Rio Grande. The city owns all of the water it gets from the San Juan-Chama, which is as much as 48,200 acre-feet a year. (An acre-foot is the amount of water it takes to cover one acre of land with one foot of water.) That annual amount of San Juan-Chama water is more than 15.7 billion gallons, which is a little less than half of what the city was pumping from the aquifer every year before the project began.
But the city only has access to that purchased water through the Rio Grande, which carries it nearly 200 miles to New Mexico.
The utility mixes the San Juan-Chama water with an equal amount of Rio Grande water when it’s sent through the city’s pipes. About half of what trickles out of faucets is consumed. The rest funnels through the drains in showers and sinks and swirls down toilets, heading back into the system.
So the utility takes the same amount of Rio Grande water that was pulled out initially and injects it back into the river once it’s been treated as effluent.
The problem is the Court of Appeals ruled on Nov. 28 that the utility doesn’t have the proper permit to use Rio Grande water in this way, so the plan isn’t legal. Getting the right permit may prove an arduous task since it doesn’t exist yet.
Trying to get that permit is just one possible course of action the utility can take, though. David Morris, spokesperson for the Water Authority, says he and his colleagues are also considering requesting another hearing or appealing the ruling with the state Supreme Court. “But we’re in the midst of the process,” he says, “so we’re not at liberty to discuss specifics.”
If the rights to divert Rio Grande water aren’t acquired, it could have severe consequences, says John Stomp, head of the Drinking Water Project. It would likely mean one of two things. One, the Water Authority could use only San-Juan Chama water in the project, and a portion of it would be lost to evaporation and leakage without the Rio Grande supplement. If all of the San-Juan Chama water isn’t consumed, that could lead to problems in the city’s agreement with Colorado. Or two, says Stomp, “it could just shut the project off altogether.”
There isn’t a deadline for getting it figured out. The utility isn’t required to stop using native Rio Grande water. Realistically, nothing’s going to change for awhile. The process will likely take years; the appeal that brought on this ruling was originally filed in 2007. Like the utility, the plaintiffs are also thinking about requesting a rehearing—but for a very different reason.
Michael Jensen is the spokesperson for Amigos Bravos, one of the groups that filed the 2007 appeal. He says there’s been a lot of misunderstanding about their motivation. People think it’s because the plaintiffs were trying to “attack the San Juan-Chama water,” he says. “And that’s not the issue here at all.” Instead, he says, the groups were concerned about a lack of accounting for what was taken out of the Rio Grande and put back in.
Steve Harris is the co-founder of Rio Grande Restoration, another plaintiff. He’s also skeptical about the utility’s accounting. Harris and Jensen say they want to see more transparency in the river flow numbers that the utility collects. Every day, the Water Authority publishes data on how much water is taken from the river and how much is returned. That information is available to the public at abcwua.org, but only data from the last seven days are available. Jensen and Harris would like to have access to a searchable archive. “They must have it themselves, since they have to report it to the state engineer,” says Jensen. “A little more transparency could go a long way,” adds Harris.
Although Harris and Jensen are pleased with the court’s decision about the Rio Grande water, there are other elements in the 69-page ruling that bother them. “There are a lot of factual errors in the opinion,” says Jensen. One of those errors, says Harris, is that “the court implied the city’s water is private water, and there’s no basis for that.” Rather, he says, even though the city bought the San Juan-Chama water, it still belongs to the public.
Parts of the ruling are good news for the project, too. “I feel like the focus is on this one area that has been remanded,” says the Water Authority’s Morris, “but that the larger victories for the rate-payers of the Water Authority have been overlooked.” The victories he’s referring to are the court’s ruling that the Drinking Water Project is not, in fact, “detrimental to the public welfare,” as it was posed in the appeal; that it doesn’t impair New Mexico’s obligation to the Rio Grande Compact; that it doesn’t impair the water rights of others; and that it isn’t “contrary to the conservation of water.”
Morris also emphasizes that the project seems to doing what it should and says that after just two years there was evidence the aquifer is recovering. In 2010, about 38 percent of the city’s water consumption came from the river, on average. Morris hopes that as the city continues to increase that percentage, the aquifer replenishes at faster rates. “Our hope it to keep getting the average up, closer to a 75 percent average eventually,” he says. “Hopefully within the next couple years we’ll be at that level.”