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Professor Denise D. Fort
University of New Mexico School of Law
JURIST Guest Columnist

The Rio Grande (known as the Rio Bravo in Mexico) courses through three U.S. states and two nations and has profound historic, cultural, and environmental significance for the citizens of its basin. It has been dammed, diverted, and polluted in the last century, reducing one of this continent痴 great rivers to a vestige of what it was when the Spanish conquerors first sighted it. Occasionally it doesn稚 even contain water, raising questions of what makes a river a river. Despite these obstacles, a struggle to restore the Rio Grande is taking root along its banks, aided by a diverse and committed assortment of NGOs and their allies in the various governments that claim a role in the river.

Pending litigation over the fate of an endangered species highlights the conflict between the public and private interests in the river, and in water in general. The Rio Grande is effectively controlled by the owners of the waters that it contains, but the struggle to preserve an endangered species has led to the reassertion of public interests in the river.

The 溺iddle Rio Grande, a reach of the river that encompasses Albuquerque, New Mexico, is at the heart of this dispute. This stretch is the last refuge for the endangered Rio Grande Silvery Minnow. The fish has been reduced to a remnant of its former range by a series of dams along the river and by the practices of agricultural users, who can divert the entire flow of the river during the long irrigation season.

Drought has gripped Colorado and New Mexico during the last several years, affecting virtually every aspect of water management. But municipalities largely rely on the seemingly bottomless basins of high quality groundwater to support their populations. (Approximately 90% of New Mexico痴 drinking water comes from groundwater.) Thus, drought doesn稚 affect groundwater supplies, and municipal uses can continue without moderation.

Groundwater aquifers are not bottomless, however, and often are not recharged by surface waters or rainfall. Albuquerque痴 annual rainfall is around 7 inches per year and the groundwater upon which it relies was laid down over many millenia. The abundance of water that this generation has enjoyed is about to reach its inevitable end, perhaps in the next two decades.

Albuquerque, unlike some other western cities, anticipated that the city would need additional water supplies in the future. (Part of the impetus for this realization was the state痴 long standing policy of conjunctive management, under which groundwater pumping was forecast to eventually affect surface water flows. Under this policy, replacement water for the river must be provided by the city.) The city successfully brokered a plan to divert water from the Colorado River basin and pipe it into the Rio Grande system. The system was federally constructed and is still federally operated, with water distributed under federal contracts to various entities. (It is most unlikely that this feat could have been accomplished in recent years, but western water management knows few bounds when major cities want water.) At this time, however, New Mexico cities mostly are reliant on groundwater and irrigators use the surface flows. The imported Colorado River water will be useable by the cities after additional infrastructure is built.

Flows in the Rio Grande are subject to the extremes of nature, captured in hydrographs that jerk across charts with little pattern. Variation is the norm; averages are just arithmetric creations. Reservoirs have been built to assure that irrigation can continue in dry years, although prolonged drought will require cutbacks.

In this discussion of water supplies, the western tradition is that water is owned, measured in acre feet, and doled out by the federal entities that control storage. Further distributions are made by conservation and irrigation districts that provide water through canals to the ultimate users. Groundwater is free for the taking to those who have water rights, but smaller users pay for the distribution by cities or irrigation works. Enter the Endangered Species Act and the water needs of the minnow and the river. In this narrative, the omission of any rights for the river and its creatures is inherent in the development of western water: water rights are perfected as water is removed from the river and developed for use. Ominously, water can be withheld from the fish by municipalities and other entities that are inconvenienced by the fishes existence, simply by refusing to sell or lease waters for instream purposes.

The minnows problem, and that of the riparian ecosystem, is that the river doesn稚 own any water rights. Except for some precipitation runoff, the river runs when it is timely for water deliveries to a downstream irrigator, or to meet the state痴 compact obligations.

The privatization of water has become a pressure point issue at a national and international level, with the benefits of the market posed against the government痴 obligation to provide the human entitlement to adequate potable water. Reading these materials from the perspective of the western U.S. borders on the surreal, because, unacknowledged by most of those who debate privatization, we already live within a property based regime. The public interest in water is entirely hypothetical.

The Endangered Species Act is supposed to protect species on the brink of extinction through the prevention of federal actions that might harm the species. Early during the summer of 2002, as the extent of the drought became known, the federal government leased water rights for this purpose (in the West, water rights may be leased or acquired on a permanent basis). The City of Albuquerque also leased its Colorado River allotment to the local irrigation district, thus permitting the irrigators to continue through the summer.

As the brutal summer drew on, it was evident that the federal water was not going to be sufficient for the fishes survival, at least without supplemental rains. The ESA question became interesting: what obligation did the federal government have to act affirmatively to acquire rights, or to use the Colorado River water that it held in storage? Doing nothing was likely to prove the demise of the fish.

The Interior Department, prodded by environmentalists, finally issued a biological opinion concluding that there were no good alternatives to avoid extinction. The federal district court then ordered the Interior Department to consider the use of federally controlled water. One imperfection of private ownership had already become evident: Albuquerque would not sell the minnows representatives the minor amount of water that it needed to survive. The gates to the reservoir were about to be opened pursuant to the district court痴 decision when a three judge panel of the 10th Circuit reversed the district court. Unexpected relief for the minnow came from unseasonable rains and a cooling off of temperatures. This enabled the minnow to survive this irrigation season. The 10th Circuit heard the matter in January 2003, and its opinion will no doubt provide guidance about federal responsibilities under the ESA.

The question before the 10th Circuit is important, but the case does not encompass all of the failures that have brought this river to its current state. There is no protection under state law for the species. It could be argued that drought is natural and that the extinction of the species is natural, but thousands of years of existence of the species belie that argument. If the public has any interest in the continued existence of the species, or in the functioning of its ecosystems, the contemporary legal system has failed to vindicate that right.

The private ownership of water is not in itself an insurmountable problem. If the various water rights owners cared to reach cooperative solutions, the existing market could accommodate the movement of water, with compensation going to those who forbear from crop planting or other uses. The more pervasive problem is the lack of a recognized public interest in the ecosystem itself. The only expression of that interest is the ESA, but its usefulness is limited, as this case shows.

If the Rio Grande and its dependents are to be protected and restored, legal institutions that recognize a public interest in the river itself must be created. The federal and state agencies can vindicate the public interest through purchase of water rights for the river, if they and other stakeholders are willing to do so. The citizens of the once mighty Rio Grande await their public officials actions to restore the public interest in this river.

Denise D. Fort is a professor at the University of Mexico School of Law.

January 28, 2003


JURIST Guest Columnist Denise Fort has an extensive background in environmental and natural resources law about 25 years of practice, politics, reflecting and writing about policies, all animated by a belief that society must turn toward a more sustainable relationship with its environment.

Fort began her career as an environmental attorney with New Mexico Public Interest Research Group and Southwest Research and Information Center, then became a special assistant attorney general in the state's Taxation and Revenue Department. When she was 31, she served as cabinet secretary of the state Taxation and Revenue Department. She moved on to head the state Environmental Improvement Division.

In 1991, Professor Fort became director of the Water Resources Administration Program at UNM and also joined the law school faculty at that time. In 1995, she chaired the Western Water Policy Review Advisory Commission, a presidential panel appointed to review the role of the federal government in western water issues. She also is active in the National Research Council, an arm of the National Academy of Sciences.

Fort has published extensively and spoken at numerous conferences on water issues. She continues to serve on the boards of a variety of environmental organizations; most recently, she founded the Western Water Alliance , in an effort to bring together people concerned about water issues throughout the West.