Five-Year Lease of Water Rights Along the Rio Chama

Introduction

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The Rio Chama, a tributary of the Rio Grande, is an ephemeral river located in northern New Mexico. The Rio Chama receives most of its water from the summer monsoon precipitation. Flows in the Rio Chama serve to replenish groundwater resources, foster important cultural and recreational uses, and provide natural habitat for endangered plants and animals. Existing water supplies within the Rio Chama have dwindled under pressures from drought and rising annual temperatures, threatening the multiple benefits this river provides. 

The Rio Chama has been able to cope with fluctuations in precipitation and diversions for human uses in the past but the existing water rights framework that governs water use along the river does not adequately address emergent challenges. Historically, flows of the Rio Chama have been diverted primarily for the purpose of agricultural irrigation on lands adjacent to the waterway. While individual irrigators with water rights along the river hold only small portions of net annual flow, collective withdrawals from the Rio Chama often exceed the system’s natural capacity. This results in long periods where flow is reduced to nothing along stretches of the Rio Chama.

One possible solution to alleviate over-allocation of water rights is the emergence of new management techniques and a water rights policy. In 2015, the New Mexico State Legislature created the Strategic Water Reserve. One of the central provisions of this statute recognized water conservation for fish and wildlife as a “beneficial use,” and authorized the Interstate Stream Commission (ISC) to allocate water to remain in the river for the purpose of protecting endangered species. In addition, the New Mexico state water agency has granted permits to the U.S. Bureau of Reclamation and the ISC to augment river flows on the Rio Grande and Pecos Rivers to protect biological resources. Despite these advances, New Mexico has yet to act on statutory authority to address in-stream flows on non-federally owned land. In response, Audubon Southwest (Audubon), and the New Mexico Office of the State Engineer (NMOSE) created an experimental water lease agreement for a claim to 40 acre-ft of water over a period of five years. This new approach was designed to keep water in-stream, while protecting individual water rights holders and providing multi-benefit in-stream use designed to support ecosystem services, mitigate flood risk, and ensure water right holders do not forfeit their holdings in wetter years.

Key Issues Addressed

In the Rio Chama, over-prescription of net annual flow is a primary reason for the river’s dry periods. Legacy water lease agreements encourage lease holders to pump water from the system as a way to secure their water rights, under the premise of “use it or lose it.” This process results in diversions from the Rio Chama even during periods of drought, when no crops are planted or when crops are not likely to produce a compensatory economic benefit.

A dry river threatens the persistence of riparian riparian
Definition of riparian habitat or riparian areas.

Learn more about riparian habitat and diminishes the co-benefits of a functioning riparian ecosystem, which is especially concerning for endangered species, such as the southwestern willow flycatcher (Empidonax traillii extimus). These birds nest in cottonwood trees and other riparian flora along the Rio Chama that ultimately depend upon active streamflow to survive. A flowing river is important for recharging groundwater levels and providing enhanced opportunities for recreation. Healthy riparian areas prevent flooding from dramatic precipitation events that are common in southwestern summer months.

With ongoing drought conditions and low water supply, the success of this project requires stakeholders to be informed and communicated with in a sound manner. Because the tactic is new and stakeholders represent a vast diversity of water users, awareness of potential conflict, effective communication, and uniting goals are essential.  

Project Goals

• Provide private water rights holders the option to use their water for the protection of stream flow while still retaining its status as legally protected property
• Demonstrate that the leased agricultural water right was not consumed by the historic farming operation and was left for in-stream use
• Create a replicable permitting and permit administration process for private in-stream-flow leases in New Mexico
• Develop measurement and reporting criteria that are accurate, but not costly or overly difficult to implement in practice
• Effectively communicate the goals and impacts of the project to various groups reliant on sufficient water allocation 

Project Highlights

H-2-O-ptimum: Environmental flow programs work within state water laws to ensure both the river and water users benefit from solutions.

• Historic Permit Acquisition: While Colorado, Montana, Washington, and Oregon, among other western states, established in-stream-flow programs through the 1980s, this permit is New Mexico’s first privately-owned water rights permit to keep water in a river. It supports a shift in thinking about water appropriation that historically incentivises water diversion. Further, it challenges the idea that rivers’ value lies only in its ability to provide water for other activities. This permit protects a river’s right to flow and the value that a flowing river provides for important ecosystem functions. The team worked directly with NMOSE staff to develop improved and streamlined guidelines for future in-stream flow permits, creating a framework for the State to implement. 
• In-Stream Beneficial Use: Through use of a staff plate (a type of gauge used to measure water surface elevation or to determine the rise/fall of the water surface over time) and associated measurement devices, the team demonstrated that the water right is being applied for in-stream use and no longer being consumed by the former agricultural operations. The choice among users not to divert allowed for the water right to remain in-stream at critical times, especially for bird nesting periods.
• Conflict Mediation: In addition to finding an agreeable permit process, staff at Audubon addressed concerns from local and downstream water right holders who feared the project would affect their senior water rights. In this case, there was confusion about this permit process that resulted in a brief legal mediation session with the local Acequia association, who believed the new permit system was potentially an infringement on their existing water right. Upon mediation, Audubon demonstrated this water permit actually benefited downstream users by providing more water. Once Audubon and NMOSE communicated this, multiple stakeholders came out in favor of the permit process, laying the groundwork for future lease agreements of this nature.

Lessons Learned

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Developing in-stream water measurement techniques that are accurate, but not costly or overly difficult to implement, posed a challenge for the team. For example, a few rain events could result in 40 acres-feet of water within the designated stream area, obscuring whether that was water not used for agriculture uses. Audubon and NMOSE found that using a staff plate was a simple and cost-effective way to determine that the 40 acres-feet of water remained in-stream and was not diverted for agriculture. 

Public outreach about the co-benefits of in-stream flows for water users earlier in the project development would have helped alleviate concerns from stakeholders. For instance, prior to outreach efforts, some water rights holders feared that they would lose the water allotted to them to other water users if they chose to keep their water in-stream. Public outreach assured holders that their water left in-stream was legally protected property that would simultaneously benefit the environment. 

Next Steps

• Because of these nascent in-stream-flow programs, New Mexico is well positioned to develop a more comprehensive stream flow enhancement program that works within the existing framework. One potential next step is for non-profit organizations, like Audubon, to procure land and water rights and initiate similar projects.
• Like other western in-stream-flow programs, future in-stream-flow programs in New Mexico would benefit greatly by having a State-based program with State agency staff assisting with the process.
• Develop a long-term strategy of lease ownership along the Rio Chama and other major tributaries to the Rio Grande through non-profit organizations working in concert with the NMOSE.
• Explore upstream for opportunities to acquire more ‘small’ water rights.
• Eventually, under similar water leasing permits, the Rio Chama watershed could develop a more robust program to keep water in-stream for protecting critical habitat for avian and aquatic species.

Funding Partners

• Bonneville Environmental Foundation
• Turner Foundation
• National Fish and Wildlife Foundation

Resources

• Water for New Mexico Rivers
• Audubon Secures Important Water Right That Supports Birds and People 
• New Mexico Grants Water Rights to Keep Water in a River
• A River’s Right to Flow
• New Mexico Strategic Water Reserve

Contacts

Paul Tashjian, paul.tashjian@audubon.org

CART Lead Authors

• Michael Mayfield, Virtual Student Federal Service
• Maude Dinan, Program Specialist, USDA Southwest Climate Hub: mdinan@nmsu.edu

The DLN is a peer-to-peer knowledge exchange between climate service providers and resource managers, created to gather and share lessons learned from drought events to prepare for future events. The DLN partners with CART to develop Case Studies, with funding from the National Drought Mitigation Center for interns and coordination support from the USDA Southwest Climate Hub.

Suggested Citation

Mayfield, M., Dinan, M., Tashjian, P. (2022). “Five-Year Lease of Water Rights for Environmental Flows along the Rio Chama.” CART. Retrieved from https://www.fws.gov/project/five-year-lease-water-rights-along-rio-chama.