New Clear Vision

Making Bioregional Planning a Reality

by Martin Zehr, aka Mato Ska

In the Middle Rio Grande region of New Mexico water planning took on a significant character that was open and inclusive. The Interstate Stream Commission (ISC) approved the 50-year plan worked on for over nine years by the Middle Rio Grande Water Assembly. The Water Assembly worked with the regional Water Resources Board of the Middle Region Council of Governments (MR COG) and maintained the direction and intent of the plan. The regional water plan was approved by the 15 municipalities of the region, the regional water utility authority, the irrigators’ conservancy district and the flood control authorities of the two counties in the region, some with particular caveats included in their memoranda of agreement. Hundreds of individuals from environmental groups, advocacy groups, real estate interests, water managers of utilities, planners, administrators and specialists in hydrology and geo-hydrology have participated and actively engaged the communities in the region for input on recommendations and preferred scenarios.

The plan is over 400 pages long with 43 recommendations, and a preferred scenario. In the implementation of the plan, Water Assembly officers worked on stakeholder advisory committees such as the Ad Hoc Committee of the Interstate Stream Committee (ISC), the Water Resources Advisory Committee (WRAC) of the Albuquerque/Bernalillo County Water Utility Authority (ABCWUA), the Albuquerque Reach Watershed Advisory Group and the Water Resources Board of the Middle Rio Grande Council of Governments (WRB). These advisory committees were integrated with governmental entities and play an important role in providing real input into their decisions.

New Mexico state law authorizing the development of regional water plans alludes to the active role of the 16 regional plans that have been developed. The experience of the Middle Rio Grande Water Assembly would seem to suggest that there is a need in this enabling legislation to make the regional planning processes empowered to act and fund as a governmental entity. This directly impacts on state legislation in California and elsewhere addressing the issue of water as a human right. Many such resolutions are nonbinding and/or generally worded in a way that does not define their intent or establish and empower entities that are to implement the resolution. Without defined authority and funding, the plans are at the mercy of corporate and private interests that so profoundly influence the existing governmental entities and are subject to the intrusions of administrative staff.

In New Mexico, the Albuquerque/Bernalillo County Water Utility Authority was established to empower an entity in a regional context. It arose at the same time as the state legislature developed a plan for a unification of the city of Albuquerque and the county of Bernalillo. This effort was defeated in referenda three times because of concern by county residents about sprawl and uncontrolled growth. The enacting legislation for ABCWUA designated three city councilors from Albuquerque, three county commissioners from Bernalillo County and the Mayor of Albuquerque to sit on the board. The key for the future here is to provide such entities established by the state, such as the Albuquerque/Bernalillo County Water Utility Authority, to be popularly elected and its representatives be designated to represent particular “stakeholder interests” rather than districts. Ideally, such a scenario would have the Authority established within a given watershed and that stakeholder groups would be apportioned a given number of representatives.

The plan’s recommendations arose from public input and provide a comprehensive vision of concrete policies and administrative measures. Proposals dealing with issues ranging from water quality to conjunctive management of surface and ground waters, and from establishing funding sources for water programs to increasing water supply and decreasing water demand have all been incorporated into the recommendations. Conservation of urban individual and large-scale users’ withdrawals, improving irrigation efficiency of agricultural users, and development of growth management in urban areas to integrate land use and transportation planning with water management are addressed by the plan and provide it with a holistic approach.

In the Middle Rio Grande, there are two of the largest cities in New Mexico, Albuquerque and Rio Rancho. These cities supply over 500,000 people solely from underground water supplies; combined these cities use 151,000 acre ft. per year. Agriculture getting its supply of water from the Rio Grande River consumes 298,340 acre ft. per year. In the Water Supply Study Phase III prepared for the U.S. Army Corps of Engineers and the Interstate Stream Commission it was summarized: “Both Base Case and Sensitivity model results indicate that water demands in the Middle Rio Grande region currently exceed the available renewable water supply by a minimum of 71,000 acre-feet per year (groundwater withdrawals that have not yet impacted the river), and perhaps by as much as 110,600 acre-feet per year. Despite the fact that these results are accompanied by uncertainty as noted above, the analysis suggests that New Mexico faces significant challenges with respect to meeting both water demands in the Middle Rio Grande and Compact obligations in future years.” These challenges are the issues of election campaigns, the substance of policy decisions and duties of elected officials. They are not the only challenges to states in water management.

The lawsuit by the state of Texas against the State of New Mexico, as a result of its noncompliance with the Pecos River Compact, resulted in a special master administering the Pecos River and millions of state dollars. As the Compact summarizes: “In the end, New Mexico paid nearly $41 million to buy and retire 25,472 acre feet of water that had been irrigating 8,743.84 acres of land in the Roswell and Carlsbad areas. But even today, it’s still unclear how New Mexico can deliver the amount of water to which Texas is entitled.”

The failure to define constituencies (and impacted stakeholders) and to establish entities reflective of the various users presents a conundrum that cannot be ignored without addressing the inherent inadequacies of existing models of resource management and their impact on decisions made. The water war around Owens Lake in California is one example of the worst case scenario. The current disputes around the peripheral canal in the California Delta present another example of the continued failure to integrate stakeholders into the decision-making processes. The Pecos River Settlement reveals the additional responsibilities of states to downstream users and the consequences of non-compliance of interstate compacts. How do water boards quantify water supply subject to the entitlement of Water as a Human Right for regional and state water budgets? What are the mechanisms for dispute resolution? How can state water administrators incorporate water as a human right in their decisions regarding appropriations, allocations and diversions?

The Great Urban User vs. Economic Development Conflict

The Water Assembly addressed issues of integrating stakeholders in the decision-making process during its history. The original composition of the leadership body of the Water Assembly consisted of one committee of specialists and one of water managers. Three additional constituency groups (Agricultural, Cultural and Historical Users; Environmental Advocates; and Urban Users and Economic Development Advocates [UUEDA]) were formed within the Middle Rio Grande Water Assembly in 2001, four years after the formation of the Assembly. These groups reformed the structure of the Assembly and each added five representatives to the Action Committee. This provided for advocates of the various stakeholder interests to provide input into the writing of the plan, to review the recommendations being proposed and to provide representation of the various stakeholders in the decision-making process of the Water Assembly.

The composition of the UUEDA group was to prove problematic from the beginning. Once engaged in the water planning process, developers, real estate attorneys, and commercial realtors took an active interest in seeking to dominate UUEDA’s representation on the Action Committee. This brought them into conflict at a very basic level with urban residential users. Policy discussions and reviews of projected usage created many heated discussions between stakeholders. Sustained advocacy by urban users, agricultural, environmental, specialists and managers developed into a working coalition internally that effectively minimized the impact of real estate interests within the Action Committee. That occurred because these stakeholder groups accepted values that included the preservation of agriculture in the region. Public opinion on this matter was demonstrated by a poll sponsored by UNM, which showed agricultural use as the 2nd in priority of most in the region.

Going with the Flow Instead of Against It

All things considered it was a very productive exercise and stands on its own as a process that effectively promoted green values and integrated them with bioregional planning. Bernalillo County Commission passed a Water Conservation Ordinance that explicitly traced its proposals to the regional water plan and was the first governmental entity to demonstrate a linkage between the regional water plan and the development of appropriate ordinances and regulations to implement it. A water budget was in the initial drafting stages of input by the Water Resources Advisory Committee (WRAC) when this Committee was restructured out of existence despite its effort to use the language of the plan. Much of the opposition to the plan’s incorporation into the water budget comes from staff of the City of Albuquerque, the Middle Region Council of Governments and the Albuquerque/Bernalillo County Water Utility Authority. This conflict can only be addressed by establishing structures with their own defined authority.

Water as a Human Right will inherently be raised in the concrete structural and political context of existing laws and institutions. There will be conflicts between users: business and residential, agricultural and urban, historical and recreational. In order to anticipate these conflicts, structural mechanisms and administrative and legal guidelines need to be in place. One such mechanism is a Public Welfare Statement that defines a region’s priorities for water allocations. This establishes the parameters for a regional water budget that presents the percentage of the various water uses. As it has been observed:

Human rights can be a powerful vehicle for change. However, they have to be enshrined not just in normative statements, but in legislation, regulatory systems and governance systems that make governments and water providers accountable to all citizens, including the poor. Too often, the language of human rights serves as a smokescreen behind which the rights of poor people are violated by institutions that have little or no accountability.

Water rights of property owners have legally defined priorities for allocation in much of the West under the doctrine of “first in time, first in line.” At the same time, the Public Trust Doctrine in the state of California empowers the State Legislature and the Governor to act presumptively regardless of the interests of local users. This contradiction constantly provokes divisions among users in large-scale water diversion decisions, dam constructions, reservoirs and other large scale projects. Population increases have profoundly impacted water demand and increased the political influences of urban metropolitan regions. At the same time, the increase in the scale of agriculture often presents the conflict over the water resource in traditional urban vs. rural water wars. California alone supplies 12% of the agricultural commodities of the United States and represents 12% of the population of the nation.

How will water as a human right resolve the urban vs. rural conflict for water absent regional planning? How will state resolutions on water as a human right impact on municipal water right entitlements and how it will impact agricultural users? These are concerns expressed in the absence of viable entities that can provide collaborative decision-making at the regional level and the lack of planning processes that are rooted in regional stakeholders.

What are the legal ramifications of a state resolution on water as a human right impact indigenous water claims? The Tribal aboriginal right has a priority date of “time immemorial.” The conflict of Native rights with urban users is exemplified in the state of New Mexico by the challenge to the Navajo Water Rights settlement by two cities. This action presents the context of users’ conflicting claims of priority rights and creates its own potential for mischief for water management. “Conscious design and negotiation about the options for governing water offer opportunities for debating and mediating among conflicting values.” One cannot presume a context absent environmental injustice.

In this context and others, environmental injustice remains demonstrated in New Mexico, California and other states. The structural reforms and political entities needed to address equity and fairness in allocations and quality issues in urban and rural regions surpass the bounds of those that have been historically relied upon. Legislative changes or state demographics are helpful but, without reforms at the structural level, input and the resulting decisions become skewed in favor of those interests that demonstrate disproportional influence in the existing governmental entities. New Mexico has an actively engaged environmental justice network of organizations, and changes have been made through legislative, judicial, and administrative measures.

What is required within the text of a state resolution that addresses environmental justice and what are the mechanisms that need to be addressed for dispute resolution? Pricing mechanisms run into the conflict between policies that promote the lowest return as an “enterprise fund,” and those that require the lowest possible prices for the poor and elderly. There is little flexibility in the budgets to include the particular needs for investment in research and development and it is required to pass such measures for funding in the state legislature. Discriminatory shutoffs of the poor have resulted in public campaigns that included environmental justice groups and the Green Party in the city of Detroit. How can these apparent countervailing forces of non-profit status and increasing need for R&D be addressed administratively to both provide adequate water supplies for the future and to maintain affordable prices?

It is important that such bioregional water planning be authorized by the state legislature to empower and fund it upon completion. It is worthwhile to begin assimilating the open and inclusive nature of such a planning process into policy proposals for structural reform of governmental entities as proposed in works on Adaptive Governance. This can take place in charter changes and at the state level in getting such statutes sponsored that would move in that direction. Without defining and refining the structural changes needed to implement Water as a Human Right, there is a distinct possibility that it will simply be rolled into the concept of Public Welfare or Public Trust Doctrine without enlarging the concept of water as a common resource. How does one integrate the doctrine of water as a human right while legally upholding individual water rights and the legal definition of water as a commodity? These questions do not have an absolute answer for all circumstances but are rooted in existing state laws and water management and administration practices. In the context of the US legal structure, water is both an individual property right and a public good.

The challenge ahead in implementation of the regional water plan for the Middle Rio Grande demonstrates the urgency of working towards a concretization of Water as a Human Right. The failure of the regional plan is the result of the failure of the political entities to accept the possibility of “shared sacrifice” that was accepted by the water planners of the Water Assembly. Collaborative efforts of upstream and downstream users emerged in the planning process. At the same time regional plans were undermined by administrative and quasi-political bodies such as the WRB not only in the Middle Rio Grande Region, but in Taos as well.

Bioregional planning is a learning experience that helps people identify actively engaged people of the region, as well as learning local movers and shakers that often work behind the scenes. It helps provide a self-education in hydrology and forces people to become more informed on the resource. It is also democracy at work at the most fundamental level and in the most fundamental area of policy determination impacting on water management. The incorporation of Town Hall meetings, Community Conversations, and open and inclusive input in such processes go beyond that currently modeled in municipal and other local governmental entities. The process can be effectively developed not only for water resource planning but for other areas of policy making, such as urban growth, fish and wildlife management, and forest and range land restoration.

Regional water planning underlies the foundation of enforcing water as a human right. It accentuates the ability to review the science and the policy of local governance. Regional planning provides the structure for the development of fair and equitable appropriation and has the capacity to develop and expand input from all sectors of society. As things stand now, the task is profoundly complicated by the interlocking agencies and conflicting jurisdictions; administrative management has superseded adaptive governance as the process of choice.

The real issues of water and sanitation as a human right require a more distinctly defined context. We need a process of long-term planning in which neighbors are engaged with each other and not put at each others’ throats by the machinations of politicians and administrators. Without the regional planning process and the incorporation of the principles and institutions of adaptive governance, there will be no room made by powerful interests for the inclusion of human rights as an active component of water administration.

Martin Zehr is a Green Party member who lives in San Francisco and has been active in water planning in the Middle Rio Grande region of New Mexico. He writes political articles on the need for third parties, the contemporary failures of public education, the Kurdish national movement, and water management and urban planning. He was given the name Mato Ska in a traditional ceremony, and is a Peace and Dignity runner.

APPENDIX: Proposed Recommendations

1. ESTABLISH AND EMPOWER REGIONAL WATER PLANNING AND ESTABLISH TEMPLATES FOR PLANNING PROCESS;
2. REVIEW STATE AND FEDERAL WATER LAW AS IT ADDRESSES CONFLICTING JURISDICTIONS AND WATER RIGHTS;
3. ADJUDICATE ALL WATER RIGHTS IN STATES TO ASSESS VALIDITY OF APPROPRIATION;
4. ESTABLISH REGIONAL WATER BUDGETS AND PUBLIC WELFARE STATEMENTS;
5. EMPOWER REGIONAL WATER BOARDS REPRESENTING STAKEHOLDERS AND USERS;
6. ESTABLISH MEDIATION AND RECONCILIATION BOARD FOR CONFLICT RESOLUTION BETWEEN USERS AND STAKEHOLDERS;
7. REVIEW AND RENEGOTIATE EXISTING INTERSTATE COMPACTS;
8. MAINTAIN THE PARAMOUNT RIGHTS OF NATIVE AMERICAN NATIONS, PUEBLOS AND TRIBES;
9. ESTABLISH THE SPECIFIC INTENTS OF WATER AS A HUMAN RIGHT IN LEGISLATION AND DEFINE HOW THEY IMPACT ON APPROPRIATIONS, DIVERSIONS AND STORAGE;
10. ESTABLISH A TIERED WATER SEVERANCE TAX TO FUND RESEARCH AND DEVELOPMENT IN REDUCING DEMAND AND INCREASING SUPPLY AND IMPROVING MONITORING AND MEASUREMENT.