Water policy folks in other western states may yawn at this, but in New Mexico it’s a big deal. The New Mexico Office of the State Engineer has approved the state’s first instream flow water right. Here’s a summary from Audubon, the group that put the deal together, explaining how it works.
The deal would allow water to flow down a stretch of the Rio Gallina, just upstream from its confluence with the Rio Chama. Previously the water had been diverted during high flows to a holding pond to irrigate about 40 acres of land on the Gallina’s south side.
It has long been believed that New Mexico law allows instream flows, but the right is implicit, not explicit. Here is the explanation from the folks at the Utton Center at the UNM School of Law:
In 1998, the Attorney General of New Mexico issued an opinion stating there is nothing in the New Mexico Constitution,statutes, or case law barring the State Engineer from approving an application to change the purpose of use of an existing water right to instream flow. The opinion concluded that New Mexico law does not require a diversion to beneficially use water and a court would likely define beneficial use to reflect current concepts of public interest,waste, and reasonable use. The Office of the State Engineer (OSE) indicated, in a parallel memorandum, that it could act favorably onan application for instream flow if there was sufficient dominion and control over the flow, such as accurate and continuous gauging devices to perfect the right and demonstrate continued use of the water.
We haven’t had anyone actually try to establish such an instream flow in the two decades since. Until now.