Ruling Jeopardizes Albuquerque's Non-Consumptive Use of Rio Grande Water

Albuquerque, NM

On Monday, November 28, the New Mexico Court of Appeals decided a water law case which implicates the ability of Albuquerque to provide water to its populace. Until the last few years, Albuquerque pumped water from an aquifer and offset that use with water from the San Juan River. Its right to use western slope water derived from compacts regarding the Colorado River Basin.

In June, 2001, Albuquerque (and now also Bernalillo County) applied to remove water from the Rio Grande. Specifically, equal amounts of "San Juan" water, which would be consumed, and "native" water originating in the Rio Grande Basin, to "carry" the San Juan water. The native water and would be returned to the Rio Grande. The application was granted and a permit was issued.

Persons opposing the permit brought suit, essentially making two arguments. Albuquerque had failed to make any application regarding the San Juan water. Also, Albuquerque was and no lawful right to use native Rio Grande water. The Court of Appeals agreed on the second point, but not the first.

Albuquerque did not need to make an application regarding the San Juan water because that water originates in the Colorado River Basin and is therefore outside the administrative scope of New Mexico. Also, Albuquerque used the San Juan water before 2001, and had the right to change the point of diversion and use of that water.

However, Albuquerque's application regarding native Rio Grande water was deficient. To use water from a New Mexico river, a person must obtain a permit to "appropriate" water, to divert water at a point, and to beneficially use all that water. Albuquerque argued that "carrying" San Juan water was not a beneficial use because the water was not consumed and was entirely re-charged into the Rio Grande; therefore it needed a permit only to divert native water. The Court of Appeals ruled that non-consumptive use of water was still a "beneficial use," and the City's failure to apply to appropriate water and divert it for a beneficial use was fatal.

The Court of Appeals did indicate that a non-consumptive, beneficial use of water might be permitted, even for a river that is "fully appropriated," such as the Rio Grande. As of this writing, the time for the parties to seek discretionary review by the New Mexico Supreme Court had not elapsed.

For more information, please contact Brian Nichols at bkn@modrall.com.