Historical and legal bases for participatory water planning

Water planning in New Mexico began as a response to a federal court’s decision (El Paso v. Reynolds 1983) that the State’s right to bar exports of its water out-of-state was limited and required that its laws “regulate evenhandedly to effectuate a legitimate local public interest.” The state legislature responded in 1985 by amending several statutes, adding “conservation” and “public welfare” to its existing requirements for non-impairment, as mandatory tests for the approval or denial of applications to appropriate or transfer water rights. The legislature did not define public welfare or list specific priorities among uses. Like most western states, New Mexico makes its public waters subject to “appropriation for beneficial use,” and is legally required to allocate water according to the doctrine of prior appropriation: “Priority in time shall give the better right” (New Mexico Statutes Annotated [NMSA] §72-1-2).

To some stakeholders, the 1985 amendments signaled that not every beneficial use should be regarded as consistent with the public welfare. But the term remained undefined when two years later the legislature passed a law establishing a process and authorizing funding for regional water planning that required planners to give an “adequate review of water conservation and the effect on the public welfare” (NMSA §72-14-44C(6)). The 1987 law reflected the New Mexico legislature’s recognition that values about water vary widely within the state and that regions should be allowed to craft their own solutions to threats to their water supplies. The law provided little policy direction beyond asserting that the state’s “future water needs…can best be met by allowing each region…to plan for its own water future” (NMSA §72-14-43).

The legislation assigned responsibility to the New Mexico Interstate Stream Commission (ISC) to administer funding to a “party or parties” within self-defined water planning regions, which must contain “sufficient hydrological and political interests in common to make water planning feasible.” Given the ambiguity of the legislature’s guidance, regional self-definition and organization proceeded unevenly for several years. Regions formed, split and reformed as stakeholders determined their shared hydrologic and political interests. Entities that assumed leadership ranged from soil and water conservation districts to county governments to planning district “councils of governments” to newly created voluntary organizations.

Into this fluid situation stepped the Western Network (a non-profit dispute resolution firm) whose staff focused their first efforts on bringing together the would-be water planners in the three regions that comprised the Pecos watershed in eastern New Mexico. Frustrated by a lack of ISC guidance, they were eager to share information that could help bring some compatibility and common structure to their plans. Following what participants considered a successful meeting in August 1992, additional funding for an emerging coalition of regional groups, first called the “Regional Water Planning Dialogue,” enabled it to facilitate similar processes in other regions, culminating in a statewide meeting in 1994, at which participants created a board and a mission statement. (It has been known as the New Mexico Water Dialogue since 1996.)

From the outset, the Dialogue has served as a “boundary-spanning” organization, linking regional water planning groups with each other, and with the ISC, as well as convening forums to promote information-sharing and to introduce a range of expert knowledge and viewpoints into regional planning processes.

Throughout the short history of regional and statewide water planning, the ISC’s relationship with the Dialogue (and citizen-planners generally) has been characterized by both cooperation and tension. The appointed commission and its staff were at first reluctant to assert the ISC’s authority, given the legislature’s finding that each region should “plan for its water future”; yet from the regions’ viewpoint, funding support was meager, and decisions about what constituted an “adequate” plan element seemed arbitrary. The Dialogue board was ambivalent about whether it should be a “watchdog” or a “partner” with the ISC. Regional planners sought guidance but also predictability from the ISC. Following the 1994 meeting, the ISC called on Dialogue board members to help it design a Regional Water Planning Handbook (1994). A key feature of the Handbook is a “template” of elements that were to be included in all regional water plans.

Most regional water planning groups had understood broad-based public participation to be necessary to the creation of any plan that might have a reasonable chance of being implemented by public authorities. The Handbook recognized these “rules-in-use” and built flexible but extensive provisions for stakeholder participation into the planning requirements. The idea that public participation is essential, both to local legitimacy and to a proper understanding of “public welfare,” thus became increasingly both a working assumption of most regional planners and a (perhaps reluctantly) acknowledged element of state water planning.

The template required regional planners to gather and assimilate information about the physical, economic, demographic and historical characteristics of the region and its water uses; to understand and document the legal and institutional constraints affecting the region; to assess the water resources available in terms of the sources and amounts of water supply (both surface and ground water) and its quality; and to document current uses and project future demand over a 40-year planning horizon. The template thus required planners and stakeholders to develop shared time-and-place-specific information about these matters before addressing alternatives and recommendations in their plans. This rule elevated the importance of common knowledge and shared understanding among participants about the nature of the realities faced by the region.

During the decade of the ‘90s, The Dialogue promoted widespread citizen and stakeholder participation in the development of regional water plans (RWPs). Dialogue-sponsored forums – statewide meetings, workshops, and articles in Dialogue – enabled individuals representing diverse interests to listen to and learn from one another, through processes that emphasized clarifying values, building trust and seeking solutions that could be embraced by all parties. This work contributed substantially to the completion and acceptance by the ISC of all sixteen RWPs.

By 2002, as a western drought deepened, policy makers began to focus on the need to develop a policy framework for the state as a whole – a state water plan (SWP). The Dialogue convened a regional planners’ workshop to draft language for legislation authorizing a SWP, and following the law’s enactment in 2003, several members of the board worked to provide substantive public input to the plan, including participating in an “ad hoc” regional and state water planning committee formed by the ISC to sort out relationships between regional plans and the state plan, and commenting critically on the first draft of the plan. The ISC adopted the first iteration of a SWP in December 2003, incorporating a number of the Dialogue’s suggestions.

Problems water planning has attempted to address

Though wide variation and unpredictability in precipitation amounts from year to year are well understood facts of life in New Mexico, only in recent years has it become obvious that, on most stream systems, water use is rapidly approaching the physical limits of the resource. The growth of cities as major users has engendered new conflicts among competing uses and jurisdictions. Moreover, the scope of water demand has broadened to encompass increasing public concerns about issues of water quality and about the health of riparian environments. The impacts of global climate change have only recently begun to be appreciated by policy makers. There is little “slack” in the system, and water managers face constrained choices.

The reality of limited and uncertain water supplies provides a context for both individual choices and policy (e.g., land use planning) decisions by governments. As population and demands on water and land grow and increase in complexity, so also do needs for mechanisms to manage and resolve conflicts. As social and ecological systems are pushed toward – and beyond – sustainable limits, current economic and political arrangements are being stressed in ways that require new adaptations to meet the challenges created by such disturbances.

Historically, Native Americans and early Hispanic settlers had viewed water in terms of its relationship to the land: Sin agua la tierra no vale nada. Before the 20th century, both these cultures (to oversimplify a complex reality) treated their water sources and supplies as commons, governed them at the community level, and made collective decisions about access, uses, and responsibilities of individual users. Early in the last century the power to decide who had access to a source of water moved to the State Engineer, while determining how water would be used became the province of the individual water right holder, “hollowing out” the authority of the community to make collective decisions; yet these ancient institutions and the values they represent endure, both informing and complicating the process of crafting new institutions for governing the water resources of the state. In the 21st century, population pressures collide increasingly frequently against physical constraints, and management regimes often fail to protect the rights of senior appropriators. State water officials are challenged trying to balance conflicting values and interests while introducing greater flexibility and efficiency into procedures to allow movement of water from historical to new uses. The State Water Plan recognizes this tension but does little to resolve it.

Water planning processes with strong public participation have raised awareness of issues of institutional design concerning how much “market” and how much (and what kind of) “regulation” the State should support. In a situation of growing scarcity, regional and statewide water planning has brought individuals representing contending interests to a common understanding that collective action is needed to craft rules within which private choices can be made. Attitudes along this continuum vary widely from region to region, and among interest groups in all regions. Among most who have been involved in these processes, however, the idea of allowing unfettered market forces to allocate the water necessary to social and ecological health appears risky: markets are deemed by many likely to fail in accounting for environmental and other third party effects in the absence of rules requiring such consideration.

In summary, New Mexico’s water planning processes were crafted incrementally over time to involve diverse constituencies in defining “public welfare” and to ensure that its meanings in local contexts are respected in decisions about water management. Dialogue strategies have sought to transform the politics of water, often characterized by metaphors involving “warfare” among individuals and groups hell-bent on defending their own interests at any cost. On the premise that individuals have multiple interests and values, some of which are shared, it has been possible to bring together representatives of divergent interests, including governmental actors at several levels, scientists and other experts, in forums that can facilitate learning and enable them to discover common ground and build trust.