Shortage in the Midst of

Abundance
© August, 2009
Prepared by Sigmund Silber ssilber1@juno.com

Are we committed to being

perpetually short of water or are
we willing to forgo the perceived
security of a perpetual water
shortage and deal with the reality
that New Mexico has enormous
water resources?
 TABLE OF CONTENTS
PAGE
I. Introduction and the Projected Water
Shortfall if we Continue along our
Present Course 1
II. Current Water Policy in New Mexico
and the Institutional Framework that
has Created, and which Perpetuates,
the Shortage of Water 11
III. New Mexico’s Abundant Water
Resources 17
IV. Impacts of our Current Water Policy 43

I. Introduction and the Projected Shortfall if we

Continue along our Present Course

New Mexico has an impending shortage of water but

the causes of the projected gap between supply and
demand and the options for dealing with the projected
shortfall may not be well understood.

As measured by precipitation per acre, New Mexico is

the fifth driest state in the lower 48 states. But
measured as precipitation per capita, we are in the
upper quartile with about 50 acre-feet (af) of
precipitation per capita. An acre-foot, the amount of
water it takes to cover an acre with water to a depth of
one foot, is almost 326,000 gallons of water, a
considerable amount. An estimated two billion af of
moisture passes over New Mexico in a typical year.
Only about 6% of this moisture is converted into
precipitation naturally and this percentage could be
increased. From this 6% only about 3.5% becomes
available for beneficial use, a low rate of capture which

1
could be very substantially increased. Agriculture
accounts for almost 85% of beneficial use but only
about half the water is actually utilized by the crop.
Agricultural water-use efficiency could be substantially
increased. We have billions of acre-feet of deep water
resources which we are reluctant to allow to be
developed and byproduct water from oil and gas
operations which we decline to utilize.

This raises the question of why a State which has such

enormous water resources is in a permanent state of
water shortage. Reasons include quirks in our river
compacts that complicate the development of water
resources, institutional arrangements that complicate
implementing sound water policies, water policies that
discourage both conservation and the development of
water resources, and support by various stakeholders
for policies that keep water scarce. The result of these
policies is a shrinking of the agriculture sector in New
Mexico which has negative impacts on rural
communities and wildlife. This in turn negatively
impacts our tourism industry and forces migration from
rural areas into cities creating adjustment problems for
the new residents of cities and their former
communities. New Mexico may be able to survive a
continual reduction in agricultural production while
increasing population, but clearly such a strategy, if
replicated throughout the West, will not be sustainable
in a nation that already has a non-sustainable negative
balance of trade.

Renewable Water Supply

In a typical year, just under 2B (billion) af of moisture

passes over New Mexico of which perhaps 300MM
(million) af of moisture forms clouds. From these clouds
2
we receive perhaps 100MM af of precipitation in New
Mexico. Of that, perhaps 3MM af contributes to the
water supply immediately as run-off into streams or,
after a delay, as withdrawals from wells or in-flows to
streams (called “stream gaining”) from shallow
groundwater that has been recharged by the
precipitation. There is reason to believe that
withdrawals from shallow groundwater exceeds
recharge by perhaps 100,000 (0.1MM) af a year (does
not include over-pumping of the Ogallala Aquifer) and
these estimates are made difficult by transmissivity
delays from aquifer recharge zones to points of
diversion and our lack of understanding of the extent to
which shallow aquifers are fed by deeper aquifers.

To this is added stream flow that enters from the

headwaters of the Rio Grande in Colorado and water
that is diverted from the San Juan River into the
Chama River which flows into the Rio Grande and thus
is referred to as San Juan Chama Water. We have
other stream flows entering from Colorado and delivery
requirements to Texas, Oklahoma, Arizona and even
Mexico. The combination of New Mexico water sources
less stream related losses plus in-flows from Colorado
less our delivery obligations outside of New Mexico
results in a renewable water supply of 3.5 to 4.0 MM af
per year (Table on Page 5). After being reduced by
evaporative losses at Elephant Butte Reservoir, the
remainder is available for beneficial use. This water
budget could easily be expanded and better utilized as
will be discussed in this paper.

Non-Renewable Water Supply

Because much of New Mexico was created by the
wearing down of highlands, we have an enormous

3
amount of water that has accumulated in sediments.
Generally we pay attention only to the shallow aquifers
which are regularly recharged by precipitation, but this
is the smaller part of our accumulated water in
sediments. New Mexico has accumulated deep and
shallow brackish water resources that may well be in
the range of 15B to 50B af with deep brackish water
being perhaps in the range of 15B to 30B af. If used to
supplement our water supply by 100,000 af per year or
about 25% of the projected shortfall, the lower 15B af
estimate of the size of the water resource in the deep
sediments translates into a 150,000 year supply if the
water is fully recoverable which of course it is not. But
this helps to place the size of this resource in
perspective.

It has been the policy of the State of New Mexico to

ignore the accumulated water resource and work from
either current precipitation or the relatively small
amount of water that is available in our shallow
aquifers. Thus we restrict ourselves to a water budget
of about 4MM af. Recent interest in the water in the
deeper sediments resulted in the New Mexico
Legislature taking action which appears to be intended
to prevent this very large water resource from being
easily developed.

The above information is illustrated in the graphic on

the next page. The very tiny little shaded area in the
lower right (labeled Annual Water Supply) represents
our 4MM af annual water budget (sitting within the
slightly larger shape representing the 100MM af of
annual precipitation). The rest of the right hand side of
the diagram represents the moisture passing over the
the State of New Mexico, whose capture we refuse to

4
enhance. The larger middle and left side of the diagram
represents the accumulated water resources that are
available but which we do not choose to utilize. It is
high time that the public perception of our water
situation was more in line with the reality of our water
resources. We are relying on only the minuscule
amount of the water that is readily available without any
serious effort on our part to expand our water supply
other than extensive efforts to meet River Compact
obligations. One objective of this pamphlet is to raise
the question: “Why have we done this to ourselves?”
and, “Why are we so determined not to allow anything
to be done to improve the situation?”

5
According to the latest assessment by the Office of the
State Engineer, current (2005) levels of withdrawal are
estimated as being:

Category Net Percentage of Percentage of

Withdrawals Beneficial Use Total
in Acre-Feet Withdrawals
Public Water
Supply 320,126 8.72% 8.10%

Private Wells for

Domestic Use 35,796 0.98 0.91
Self-Supplied
Commercial and 182,660 4.98 4.62
Industrial
Irrigated
Agriculture 3,075,514 83.78 77.85

Livestock 57,009 1.55 1.44

Total Beneficial
Use 3,671,105 100.01% 92.92%
Reservoir
Evaporation 279,293 7.07

Total Beneficial
Use Plus 3,950,398 99.99%
Reservoir
Evaporation

Http://www.ose.state.nm.us/PDF/Publications/Library//Technical
Reports/TechReport-052.pdf

6
An acre-foot of water is enough to meet the annual
water needs of four or five households. Crops generally
require about three acre-feet of water over the growing
season, some of which is provided by natural
precipitation, the rest by irrigation.

Currently, in most years, New Mexico has relatively

little difficulty obtaining the amount of water required for
municipal/domestic and self-supplied commercial/
industrial use while meeting the needs of a substantial
percentage of agricultural demand (See Footnote #1 at
the end of this section), while also meeting its
obligations to deliver water under the terms of
interstate agreements which are called “Compacts” and
a United States treaty with Mexico. These agreements
are required because some of the water that flows in
our rivers originates in Colorado and/or has historically
flowed from New Mexico to other States and thus
cannot be considered to belong exclusively to New
Mexico. The most important of these Compacts, the
Rio Grande Compact, regulates deliveries not only to
Texas (and via Texas to Mexico) but to users in
Southern New Mexico as well. Many are not aware that
most of the water that is delivered under the terms of
this agreement is actually consumed in New Mexico:
58% after the 60,000 acre-feet per year (afy) that is
obligated to Mexico.

New Mexico is projecting roughly a 70% increase in

population in the forty year period from 2005 to 2045.
This projection is lower than previous projections and
shows a declining trend in population growth over time.
If believable, the population projections indicate that
our growth in water requirements is tapering off.

7
http://www.ose.state.nm.us/PDF/Publications/TechnicalRep
orts/BBER-WPR-Estimates-Projections-Aug2008.pdf

A 70% increase in population would create a roughly

proportional increase in the consumption requirements
for municipal and domestic use (these categories which
are directly related to population growth are shaded in
the table on page 6). The increase for those
commercial and industrial users which have their own
water supply (referred to as “self-supplied”) rather than
depending on City and County water systems might be
smaller as some of the components of that category
are not population related.

Thus over the next forty to sixty years, we are facing a

potential water budget gap or shortfall of 300,000 to
500,000 afy concentrated mainly along the Middle and
Lower Rio Grande. Meeting the water needs of a
growing population is the challenge that is facing New
Mexico. Municipal and domestic conservation can
realistically reduce this shortfall to 200,000 to 400,000
afy, and this shortfall, which is only 5 to 10 percent of
our current annual water budget, can easily be met with
available water resources without reducing the number
of irrigated acres in New Mexico.

This shortfall is totally manageable if we adopt water

policies that are designed to allow New Mexicans to
have the water they need and protect our way of life.

8
Footnote 1. Surface Water Shortages

On pages 26 and 27 of OSE Report TR52 in Table 3.3 there is a

list of surface water shortages. At first glance they appear to be
substantial. However they are presented as percentages which
make it difficult to understand the quantities involved. The author
of this pamphlet believes that in many cases the owners of these
water rights are no longer actively farming. Farming is an activity
that, generally speaking, needs to be performed continuously year
after year. Profitability is difficult to achieve even with continuous
farming and the farmer has to be prepared to accept water from
the acequia or other distribution system. It would appear that much
of what is shown as being a surface water shortage may in fact be
“dry water rights” i.e. water rights that are not currently being
utilized on a regular basis. The land may have even been
subdivided for development.

Having better information on actual surface water shortages would

be very useful. Where there is a shortage and a surface water
right is transferred and there is a reduction in conveyance and
farm delivery losses related to the farm from which the water was
transferred, these savings may in fact not revert to the State of
New Mexico but may instead be utilized by the more junior water
rights holder which would be appropriate.

The widely held assumption on over-appropriation probably is

based at least partially on the “shortages” identified in Table 3.3 of
the OSE TR52 Report. If these water rights are not regularly being
put to beneficial use, they may no longer be valid water rights and
our analysis of over-appropriation may be distorted by including
water rights that adjudication will eventually show as having been
forfeited. It would be useful to have the information in Table 3.3
refined so that we know better how to interpret this important set of
information.

9
10
II. Current Water Policy in New Mexico and the
Institutional Framework that has Created this
Shortage and Perpetuates it. Is it Hydrophobia as
Some have Suggested or just a Failure to
Recognize and Respond to Opportunities for
Improving our Situation?

In New Mexico, water consumption is regulated by the

Office of the State Engineer (OSE). A related agency,
the Interstate Stream Commission (ISC), deals with our
obligations under Interstate agreements (Compacts).
The New Mexico Department of the Environment
(NMED) is responsible for water quality. The Oil
Conservation Division (OCD) plays a role where oil and
gas drilling takes place. The NM Department of
Agriculture is noticeably absent in establishing or
implementing water policy which is especially
surprising considering that agriculture represents 85%
of the beneficial use of water in New Mexico.

This division of responsibilities complicates dealing with

water issues that involve both the right to use water
and the need to maintain water quality. In theory, the
OSE and ISC are also responsible for developing the
water resources of the State of New Mexico but in
practice they generally operate in ways that impede the
development of our water resources although that may
not be their intention.

The focus on meeting our increasing water

requirements has been primarily municipal/domestic
conservation combined with the transfer of water from
its use in agriculture to municipal/domestic purposes.
Municipal/domestic conservation has proven to be

11
effective and has substantial additional potential but it
cannot be our only tool for meeting the water needs of
a growing population. This would require cutting per
capita consumption in half everywhere in New Mexico
and that does not appear to be realistic. A reduction in
per capita consumption of 20% would make a
meaningful reduction/offset to the growth in water
demand resulting from population growth. Some
communities have already accomplished this and
communities where rapid development is occurring
should find this easier to accomplish or even exceed.
Doing so would reduce the projected water budget gap
to perhaps 200,000 to 400,000 afy or maybe even a bit
less. Organized efforts to achieve municipal and
domestic conservation are important and should be
funded.

Conservation within the category called “self-supplied”

commercial/industrial (they provide their own water and
do not rely on public water systems) may also have
some potential to better utilize our water resources but
presumably many users in this broad and complex
category already have a significant incentive to have
employed conservation since water availability is often
a major part of their cost structure. The relationship
between water use and population growth is not linear
for some of the users in this category e.g. mining. This
category may also be important with respect to
potential utilization of currently non-permitted water
generated from other sources.

Conservation alone, as it applies to municipal/domestic

and self-supplied commercial/industrial, is not likely to
be able to provide all of the additional water required

12
for the projected level of population growth. In many
places, the use of shallow groundwater cannot be
increased substantially and then be expected to
provide a sustainable supply. Thus shallow
groundwater is not likely to play a major role in meeting
the water needs of our increasing population. Recent
court decisions will likely further restrict the role that
shallow groundwater can play in meeting the needs of
an increasing population.

The working hypothesis in New Mexico is that the

water supply available and under the control of man is
fixed (or declining) even though this clearly is not even
remotely consistent with the facts. It is, however, an
assumption that fits the agenda of many stakeholders.
If one assumes the water supply is fixed, then one can
understand the focus on protecting the system of prior
appropriation from the creation of additional water
rights since it is assumed that new water rights will
simply create additional demand on the fixed-sized
water resource. It should be clear from the information
that I provide in this pamphlet that the assumption that
our water supply is fixed is simply and substantially
incorrect. Thus we might usefully focus a bit more on
how to increase the water supply to provide an overall
benefit to water users in New Mexico. This would be
preferable to assuming that any increase in
appropriations from new water resources would be a
transfer from a legitimate water rights owner.

Private property needs to be strongly protected but the

State of New Mexico should not be inadvertently
adopting policies that result in maintaining a scarcity of
water. Some stakeholders may prefer such policies

13
because they result in the market price of water rights
being driven up and supported but this would appear to
be contrary to the best interests of the majority. Such
policies also encourage efforts to get around these
policies and this creates expenses for those who are
charged with implementing problematical water policies
and also creates skepticism about the fairness of the
overall water policy of New Mexico.

There is a general fear of developing new water

sources in New Mexico. Some have labeled this
“hydrophobia”. There are many aspects to this
reluctance ranging from concern by some that having
more water will encourage more rapid population
growth to concerns about the possible negative
impacts of developing new water resources. These
concerns of course need to be addressed fully.

The increasing need for water related to population

growth will force us to develop other water sources
unless we are okay with continuing to significantly
reduce agriculture in New Mexico. Irrigated acreage
has already been reduced by 20% in the time period
from 1980 to 2005.

The notion that our existing water resources are

problem free and safer than potential new water
sources is a very romantic and unrealistic way of
looking at things. When one actually considers the
components of our current water supply, it becomes
clear rather quickly that all water sources have
problems. Domestic wells often provide water with
concerning levels of impurities, can impair the flow of
water to other wells and to our rivers, and are likely

14
to run dry in many areas as our shallow aquifers
continue to be overused. The use of septic tanks,
which is often associated with reliance on domestic
wells, can result in serious pollution of the remaining
groundwater.

The availability of surface water varies tremendously

from year to year and is vulnerable to the negative
impact of pollution on the level of precipitation and
where the precipitation occurs. Location of precipitation
can impact the percentage of the precipitation which
becomes stream flow. San Juan Chama Water has its
own set of risk factors related to population growth
within the Colorado Basin. The quantity of winter
mountain precipitation will likely be negatively impacted
by the warming trend which is projected to continue
and possibly accelerate and the timing of snowmelt is
likely to change which has its own unique set of
impacts. Precipitation levels are impacted by the long
climate cycles which historically have, from time to
time, resulted in major droughts. These cycles may
have differing impacts on different parts of New Mexico
and winter versus summer precipitation. Meeting the
Pecos River Compact delivery obligations has been
very expensive and meeting the Rio Grande Compact
delivery obligations could ultimately be a problem that
will be many times more costly than the Pecos River
situation. Thus it behooves us to consider the pros and
cons of alternative ways to increase our water supply.

15
16
III. New Mexico's Abundant Water Resources

Ways to increase New Mexico’s water supply include

the following which are not presented in sequence of
importance, cost, or ease of implementation. That is a
future discussion. More information on many of these
alternatives, including references to information
sources used to prepare this material, can be found at:
http://www.ose.state.nm.us/water-info/NMWaterPlanning/regions/
jemezysangre/PCTC/PCTC-Report-2007-12-10.pdf

PAGE
A. Increase the Capture of Precipitation 18
B. Increase Agricultural Efficiency 20
C. Increase Precipitation 27
D. Utilize Produced Water from Oil and
Gas Operations 32
E. Develop our Enormous Deep and
Brackish Water Resources 33
F. Increase the Use of Treated
Wastewater 36
G. Reduce Forest-Related Precipitation
Losses 38
H. Find Ways to Reduce Deliveries of
Water to Texas, Oklahoma, Arizona
and Mexico 38
I. Recognize that our Streams and
Shallow Aquifers are Delivery
Mechanisms in Addition to being
Sources of Water 39
J. Pay Attention to Opportunities to
Conserve Water 41

17
A. Increase the Capture of Precipitation Beyond
3.5%

We lose about 96% to 97% of our approximately

100,000,000 acre-feet of average annual precipitation
to evaporation or use by plants. We want healthy
rangeland and forests so this precipitation, even if lost
eventually to evaporation and transpiration, is
valuable. Selectively capturing just one tenth of one
percent of this 97% (i.e. 100,000 acre-feet of water)
could make a huge contribution to improving our water
situation going forward, reducing the projected water
budget gap to perhaps 100,000 to 300,000 afy or less.

Water captured (sometimes referred to as “harvested”)

from rooftops is permitted and encouraged and can be
used for landscaping purposes and thus reduces the
need for domestic well water or municipally supplied
water. Rooftops are not the only surfaces from which
water can be captured. Ground-based options are
another alternative. An example would be collecting
from naturally occurring depressions where standing
water is temporarily present after precipitation events
but which have no outlet to streams and, due to soil
conditions, the water does not make it down to
aquifers.

Water capture from natural or prepared ground

surfaces is relatively inexpensive and thus is one of
the few sources of additional water that is low enough
in cost for agricultural use. But right now, this water
falls into what might be considered the category of
“illegal” water. Currently the State Engineer has not
developed a permitting approach for ground-based
capture of water. Clearly some water is being

18
collected from surfaces other than roofs and this water
is used even though it is not legal to do so.

Issues

The principal argument against water capture

(harvesting) is that some portion of the water captured
may have otherwise found its way into a stream or the
regional aquifer rather than having been lost to
evaporation and evapotranspiration. Thus capturing
this water might impair someone else’s water rights.
One solution to this legitimate concern is to conduct
water capture only in areas where it is known that most
of the water captured would otherwise have been lost
to evaporation or evapotranspiration. The State
Engineer might require, as a condition for permitting,
that somewhat more than the amount that might be
expected to have reached a stream or the regional
aquifer be required to be released to a nearby stream
or injected into the regional aquifer. Thus the capture
project would be a win win for all concerned.

Other than the extra work of administering a surface

capture permitting program, it is difficult to come up
with a legitimate reason not to pursue increased
capture and utilization of precipitation. Saving the cost
of a few additional employees at the OSE is not a good
justification for shrinking our agriculture sector. Nor
does it make sense to invest in new water approaches
that cost $2,500 per acre-foot when a $100 per acre-
foot approach is available essentially everywhere in
New Mexico. Curiously, harvested water including roof
capture water is not likely to be counted by the State
Engineer in the official statistics of water supply as it is
neither stream flow nor water pumped from wells.

19
B. Increase Agricultural Efficiency

85% of the water that is put to “beneficial use” is done

so in the agriculture sector to irrigate about 875,000
acres. This is about 3.5 af feet of water per acre which
is high considering that most crops require under 3 af
and some of this is provided by summer precipitation
rather than irrigation. With so much water being used,
there must be opportunities for conservation which
would allow, in some cases, more agricultural
production from the amount of water currently being
used or, in other cases, water becoming available for
use outside of the agriculture sector without reducing
the amount of food and fiber grown. According to data
provided by the OSE, we lose about 600,000 af of
water to conveyance losses. My rough estimate of
other losses, from examining the OSE data, would be
another 900,000 af of water. So about half the water in
the water budget for agriculture is not consumed by the
crop but is lost. Reducing these losses by 10% would
eliminate the lower estimate of the projected water
budget gap and reduce the upper estimate to perhaps
150,000 afy. It is reasonable to use some of this
conserved water to actually increase agriculture
production. We have the water resources to support
such a strategy and the long-term benefits of doing so
are substantial.

Issues

Legislation was passed in the 2007 Regular Session

(SB461) to encourage conservation. This bill provided
that:

20
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in reducing such conveyance losses. Generally there is
no incentive to invest in reducing conveyance losses
unless they are so severe that the quantity needed for
the CIR just doesn’t make it to all the members of an
acequia or other distribution system.

It is likely that any reductions in conveyance losses or

losses on the farm prior to the water reaching the root
system of the crop would not be considered the
property of the irrigator under the provisions of 72-5-
18C of the New Mexico Statutes. Thus this new law
may in reality provide little if any incentive for irrigators
to reduce their consumption of water.

When irrigators do reduce what are essentially farm

delivery losses through techniques such as drip
irrigation and the saved water leads to increased crop
yields, the irrigators are often treated as if they were
doing something improper. We should be delighted
when the same amount of water leads to greater crop
yields and prosperity for irrigators and the communities
in which they live. One does have to acknowledge,
however, the legal issues raised by the irrigator
benefiting from water that was saved from the FDR.
This water should legally be available to more junior
water rights holders further along the distribution
system or, if not utilized by junior water rights holders,
revert to the State of New Mexico and thus be available
to meet River Compact obligations. If not saved,
however, this water is not available to anyone, although
in some cases wildlife benefits from FDR losses.

We need to find a solution to this dilemma, perhaps

some sort of arrangement for sharing savings in the

23
PDR and FDR with both the party responsible for
achieving these savings and the State of New Mexico.
The issue may be partially related to how funds for
agricultural conservation are administered. When
administered by an agency (namely the OSE) that is
tasked to extract water out of agriculture, higher crop
yields are not seen as indicating a successful policy.
Perhaps loans and grants for agricultural conservation
should be administered by the Department of
Agriculture.

There are limits to how much we can reduce the actual

consumption requirement (CR) of a particular crop.
One can, of course, select different crops and there
may be more water efficient varieties of the same crop.
The timing of harvesting may be an area where the
water requirements of a crop can be reduced. There is
no point in having the plant grow larger than the
optimum for harvesting. The larger opportunity in
agricultural conservation, representing half of the water
diverted to the agriculture sector, is reducing the
conveyance losses incurred in getting the water to the
farm (Project Diversion Requirement - PDR) and from
the farm to the crop’s roots (Farm Delivery
Requirement - FDR). The irrigator only owns the CIR.

As stated on the previous page, we need to find ways

to encourage the irrigator or acequia/ditch manager to
reduce losses that are generally considered to be part
of the PDR and FDR and thus not part of the irrigator’s
water right. So far, that has been essentially ignored. If
we are not able to find ways to encourage irrigators
and the operators of acequias and other water
distribution systems to invest in projects that reduce

24
losses in the PDR and FDR, then the OSE or some
other entity needs to take on that responsibility
because reduction in losses in the PDR and FDR is by
far the larger opportunity.

The current surface water conservation allowance law

does not apply to those who irrigate with groundwater
so perhaps that needs to be addressed. Presumably,
pumping costs do provide an incentive for those
irrigating with groundwater to be efficient and an
irrigator can already sell off part of their groundwater
rights if they figure out how to get by with less. There
still remains the water rights, “use it or lose it,” dilemma
for those irrigating with groundwater who wish to be
more efficient and that needs to be corrected.

There is a soon to expire tax credit for agricultural

water conservation investments 7-2-18.20. It, like 72-
5-18c, may also be constrained by the definition of the
category of water conserved (CIR versus PDR or FDR)
but more significantly it currently precludes the investor
in water conservation approaches from putting the
conserved water to beneficial use. This restriction
appears to eliminate the motivation for making an
investment in water conservation although this
restriction may be being ignored to the extent that it
does not involve a request to change the point of
diversion.

Our inclination to be strict with respect to the

agriculture sector (meaning implementing a perspective
that water coming out of agriculture is the only
acceptable outcome from government supported
agricultural conservation investments) works against

25
achieving our goal of having sufficient water for all
categories of water users in New Mexico. Efficiency in
agricultural water use provides the option, on a
statewide basis, to have more production with the
same amount of water, the current level of production
using less water, or having somewhat more production
while using somewhat less water. We can choose to
operate anywhere within that spectrum of choices if we
use water more efficiently.

A macro perspective is required and false conclusions

can be reached (and are being reached) by looking at
the results on a farm-by-farm basis. An individual
irrigator using conserved water to increase production
enables the policy choices that I have described in the
above paragraph, so it is something to be applauded
not condemned.

There is, unfortunately, a perverse incentive to transfer

water out of agriculture, especially surface water, by
taking acres out of irrigation. The water rights holder
owns and is allowed to transfer only the Consumptive
Irrigation Requirement (CIR) which is the basis for the
irrigator’s property right. When irrigated land is taken
out of service, there are reduced losses related to the
conveyance of water to the farm and losses on the
farm prior to the water reaching the roots of the crop
and being beneficially utilized. These reduced losses
revert to the State of New Mexico. This arrangement
might be considered as creating a constituency for
policies that encourage a reduction in irrigated acres. It
would be better to attempt to reduce these substantial
losses in ways other than taking land out of irrigation.
Footnote 1 on Page 9 provides more detail on this

26
situation in terms of acres which are not officially out of
production but which may be for all practical purposes.

C. Increase Precipitation

As stated previously, currently only 6% of the moisture

passing over New Mexico falls to the ground as
precipitation. Many Western States and many countries
around the world have projects to increase the levels of
precipitation that take place by what is commonly
called cloud seeding. Water from cloud seeding
projects is among the lowest cost water available and
is even less expensive to obtain than surface capture
(harvested) water.

The basic scientific principle of most cloud seeding

projects is to initiate the creation of ice in clouds when
the moisture is colder than 32oF. In clouds with very
pure moisture in very fine particles, freezing (glaciation)
amazingly does not take place at temperatures above
-40oC (which is the same as –40oF) without catalysts
(called ice nuclei or IN) such as vermiculite which
normally are not effective when the temperature is
warmer than 5oF (-15oC). Certain other materials work
at temperatures which are warmer than 5oF. The
introduction of these artificial ice nuclei into portions of
clouds where the moisture is below the normal freezing
point of water (super-cooled) but not cold enough for
glaciation to take place naturally is called cloud
seeding.

Issues

Some worry that cloud seeding might reduce

precipitation for communities downwind of where the

27
cloud seeding takes place. Studies have shown that
winter cloud seeding leads to increased precipitation a
considerable distance downwind from the seeding site
and the amount of additional precipitation from cloud
seeding in a reasonably sized cloud seeding program
(perhaps three to five winter mountain cloud seeding
projects each producing 20,000 additional acre-feet of
precipitation) is very small compared to the annual flow
of moisture over the State of New Mexico (just under
2,000,000,000 af). Thus there is not likely to be any
significant impact on precipitation patterns resulting
from winter mountain cloud seeding and the increased
precipitation would be used and returned to the
atmosphere in a very short period of time.

Precipitation in States to the east of New Mexico is

based not only on the moisture that passes over New
Mexico without being converted to precipitation but also
moisture moving north from the Gulf of Mexico and
moisture dropping down after it passes through the
States to the north of New Mexico. One only has to
observe that States to the east of New Mexico have
very much higher rates of precipitation than New
Mexico to understand that the flows of moisture in the
atmosphere are very complicated. States to the east of
New Mexico are not depending primarily on the
moisture that passes over New Mexico without being
converted to precipitation; just as New Mexico is not
impacted by cloud seeding projects in California,
Nevada and Colorado. It would be useful if universities
providing degrees in hydrology would include at least a
basic course in meteorology as the atmosphere is part
of the hydrologic cycle.

28
An additional 100,000 af of winter mountain snowfall
resulting in 60,000+ af of additional stream flow could
make a big difference in meeting our projected water
budget shortfall. Agricultural interests dependent on
water from tributaries flowing off of our northern
mountains would especially benefit. This additional
stream flow may be needed to compensate for the
negative impacts of the warming trend in our mountains
and the impacts of SO2 pollution from coal-fired power
plants (among other SO2 sources) which tend to reduce
winter snowfall on the windward side of mountain
ranges. Summer cloud seeding, when it was conducted
in SE New Mexico, was designed to reduce the
pumping (and cost and energy use of pumping) of
water from the Ogallala aquifer, thus slightly extending
the life of the Ogallala aquifer.

There are many approaches to cloud seeding and

many different “seeding” agents. One of the most
frequently used seeding agents is silver iodide which is
effective at cloud-moisture temperatures which are too
warm for the natural ice nuclei (IN) to be effective. This
increases the percentage of moisture that is converted
into ice and which then falls as snow in the winter and
which melts and falls as rain in the summer.

Silver iodide is insoluble and thus has been found by

many thorough investigations to not be harmful.
Laboratory tests intended to show the toxicity of silver
ions usually use silver nitrate which is very soluble and
thus dangerous but silver nitrate is not used for cloud
seeding. It is important to avoid confusing reports
based on highly soluble and toxic silver nitrate with the
impact of insoluble silver iodide. Such confusion occurs
accidentally and perhaps even intentionally.

29
A major problem complicating the funding of cloud
seeding projects relates to the determination of who
owns the water, especially for winter mountain seeding
where the objective is to create increased stream flow.
The accuracy of determining the additional stream flow
resulting from a cloud seeding project is not sufficient
to establish a new appropriation so in most cases the
beneficiaries of an investment in cloud seeding would
be (a) the State of New Mexico with regards to meeting
Interstate River Compact obligations, (b) lower priority
water users along the stream system and (c) users
covered by the River Compacts who may be located
very distant from where the cloud seeding project
would take place, possibly even in Texas. With respect
to the junior water rights holders, it is not possible to
predict in advance which of these junior water rights
holders would benefit because that depends on the
level of stream flow that would have resulted that year
if cloud seeding had not taken place.

Entrepreneurial investment in cloud seeding projects

designed to produce increased stream flow is not
generally possible since ownership of the additional
stream flow can not generally be determined. Such
projects need to be funded by governmental entities
and quasi-governmental entities such as irrigation
districts. Where cloud seeding is conducted to
suppress hail and thus hail damage (on the Great
Plains), the property and casualty insurance companies
have sometimes been willing to participate in the
funding. Projects performed for and funded by ski
resorts and operators of hydroelectric facilities are
common. Projects designed to have precipitation fall
directly on irrigated fields are usually funded by local

30
authorities. Water rights are not an issue in those
cases but funding by groups of beneficiaries does not
generally work because everyone benefits whether or
not they are a member of the funding group.

There may however be a quirk in the agricultural tax

credit provisions (Chapter 7-2-18.20) that might
currently (it is due to expire at the end of 2012) enable
private sponsors of summer cloud seeding projects to
receive tax credits. In general, this tax credit is fairly
unusable for a number of reasons one of which being
that it currently requires that the conserved water not
be put to beneficial use. With summer cloud seeding in
SE New Mexico, the conserved water remains in the
Ogallala Aquifer and the additional precipitation is used
instead, so it satisfies the strange wording of the
current law.

It would be useful for the Interstate Stream

Commission (ISC) to develop a plan for cloud seeding
in New Mexico. One complication that needs to be
addressed is the reality that there are many users with
rights to water from our major rivers. Projects (beyond
demonstration projects) ultimately would need to be
cooperative ventures with multiple parties along each
major river system including perhaps the Rio Grande
Project or separately, the State of Texas. Organizing
such cooperatives over large distances is complicated
and there is no institutional framework in New Mexico
for accomplishing this. We have river-masters but their
job is to allocate limited water, not work to increase the
water supply or retain more of our existing water supply
in New Mexico.

31
One particular reason why cooperation of users all up
and down our major rivers is important is that there are
aspects of both the Rio Grande and Pecos River
Compacts that perversely result in problems meeting
our Compact obligations when we have increased
precipitation in our northern mountains without an
increase in precipitation in Central New Mexico. For
these two River Compacts, the key measuring points
are the Otowi Gage on the Rio Grande and Fort
Sumner on the Pecos. Thus it may be appropriate for
users in the southern part of New Mexico and possibly
also Texas to agree to accept a smaller share of the
increased stream flow resulting from an investment in
cloud seeding north of those two key measuring points
or alternatively to share in the investment.

D. Utilize Produced Water from Oil and Gas

Operations

Oil and gas wells typically pull up some water with the
oil or gas that they wish to recover. This water, which is
called “produced water” exceeds 80,000 af per year
and has to be cleaned up to some extent and disposed
of safely. This water is “illegal” water; it must be
disposed of and it cannot be put to beneficial use. If the
method of disposal happens by “accident” to produce a
benefit, that is in some cases considered okay and
public support for such approaches seems to be
increasing. Disposing of this water is an expensive
process and in some cases involves transporting the
produced water to treatment facilities thus increasing
the energy component of the process. Recently, some
oil and gas wells are experimenting with distillation
technology as this can be done on site and, under

32
certain circumstances, costs less than transporting the
produced water to treatment facilities.

Issues

Currently, the State Engineer will not allow this purified

distilled produced water to be sold because the oil
companies do not have water rights covering produced
water. The State Engineer requires that this water be
dumped on the ground or given away. Where a
disposal method actually produces a benefit as a side
effect, this generally is permitted or legislation can be
passed to permit it. Treated produced water is costly
but this cost is already being incurred by the oil and
gas companies. Why not utilize the treated water and
encourage this safer and possibly less expensive
method of disposing of produced water?

E. Develop our Enormous Deep and Brackish

Water Resources

Deep (below 2500 feet) brackish water (slightly salty

but nothing close to sea water) exists in very large
quantities (perhaps 15 to 30 billion acre-feet) and until
recently was unregulated by the State Engineer which
meant that it previously could be easily developed.
Legislation was passed in the 2009 Legislative Session
to place this category of water resource under the
jurisdiction of the State Engineer. This change in the
law may result in this very large water resource
(perhaps 4,000 to 8,000 times as large as our annual
water budget) simply not being developed by other
than those who previously filed a notice of intent to
develop this water. Perhaps in the future, this law will

33
be changed again to make this huge water resource
more practical to be developed or other ways will be
found to allow this huge water resource to be
developed.

Issues

Concerns include impacts on shallow aquifers and

surface water, sustainability, subsidence, energy costs
and safe disposal of the byproduct salt compounds of
treating brackish water (not all deep water is brackish).
A good first step would be to characterize this
enormous resource and attempt to determine what part
of this resource is hydrologically connected to surface
water and shallow aquifers and what part of this
resource is totally disconnected from the surface. The
part that is totally disconnected can be developed
without concern about impairment. The part that is
hydrologically connected may be able to be developed
based on agreements to protect and compensate any
potentially impaired parties since the resource far
exceeds the total current water supply of the State of
New Mexico. Being hydrologically connected may also
imply that in some cases our deep water resources are
indeed being recharged.

Beyond the initial step of characterization of our deep

water resources (brackish or otherwise), an advisory
board might be constituted to consider how this
resource might be best utilized, addressing all the
concerns that have been raised but also looking at how
one views a potential water resource when it so dwarfs
our currently utilized water resources. This is a task
that may exceed the current capability of the OSE/ISC

34
because this newly recognized water resource and its
development has so many stakeholders and because
there are many technological issues that would benefit
from a broad spectrum of inputs. It took fifty plus years
to develop San Juan Chama Water. It may take fifty to
a hundred years to significantly develop our deep water
resources. But without a plan, steps may be taken that
preclude the optimal development of this extremely
large resource so planning should begin now.

The new law provides that deep brackish water can

continue to be used for a variety of purposes without
obtaining a permit from the OSE in applications where
potable water is not required including agricultural
purposes and for industrial processes. This creates or
expands a third category of water in addition to legal
water and illegal water. I call this “quasi-legal water”.

Some very slightly brackish water may indeed be

usable for agricultural purposes but it is unlikely that
the cost of pumping from such depths would result in
water where the cost was consistent with the value of
water in agriculture so this is presumably a provision of
the new law that is not likely to be used. However,
might an irrigator who is the holder of legal water
transfer those rights and substitute and utilize this
quasi-legal water in its place? What if the irrigator
chooses to upgrade this brackish water? Would that be
allowed? Might an industrial user follow a similar
strategy and sell their rights to water from an existing
well and use deep brackish water instead possibly after
cleaning it up to make it usable?

Deep brackish water is likely to be relatively expensive

water, but it is very plentiful along the Rio Grande Rift

35
Valley. This means it is close to where New Mexico’s
population is expanding, and thus the pipeline costs
would be less than for developing shallow brackish
water in other locations. Concerns about fossil-fuel
based energy consumption of the required desalination
might be addressed by the use of solar distillation or
embedding solar or wind electrical generation projects
in this type of large water-infrastructure project.

Because of the size of this resource and the legitimate

concerns raised, it would be appropriate for the ISC to
develop a plan for the long-term development and use
of deep brackish water in cooperation with the broad
range of impacted stakeholders and with appropriate
funding from the NM Legislature. One option to be
considered is the establishment of a State Water
Authority to develop this resource. Imagine a
severance tax on 15B to 50B af of water. Some of the
suggestions for using this water as part of conjunctive
use strategies might have merit in some situations and
would be easier to justify for a government owned
entity rather than an entrepreneur where constant and
maximum production would normally be the goal.

F. Increase the Use of Treated Wastewater

Effluent from wastewater treatment plants may not be

considered a new water source but current wastewater
treatment plant technology means that we get 1.5 to 2
uses from the same water with the second use
generally being landscaping or agriculture as the
treated water is not of drinking water quality without
further treatment. Even when used for a lower value
purpose, this has the same impact as an increase to

36
our water supply since otherwise potable water would
usually have been used for those purposes. As our
population becomes more concentrated in cities along
the Rio Grande, wastewater treatment becomes
increasingly important and practical. Upgrading
wastewater treatment to produce potable water has the
potential to create closed loop systems where our
municipal water requirements would be drastically
reduced to levels that simply make up for water losses
in the system. When treated effluent is returned to
rivers, it may become part of the potable water supply
further downstream if diverted and processed through a
water treatment system.

Issues

Measures to encourage land-use planning that result in

a high percentage of new residences being connected
to wastewater collection systems would reduce the net
per capita consumption of water and avoid the health
risks of septic systems. Small developers prefer to rely
on domestic wells as they believe that this reduces
their development costs. Studies performed by the
Santa Fe County Water Utility suggest that this
assumption is not necessarily correct and a
requirement that small developments be connected to
municipal water and sewer services may not impose a
significant burden on small developers.

There is an interesting interrelationship between

conservation and wastewater treatment with
conservation reducing the amount of feed to
wastewater treatment plants. But wastewater treatment
requires capital and energy and there are losses, so it
is better to use less water than to use and recover it.

37
G. Reduce Forest Related Precipitation Losses

Substantial evapotranspiration and losses due to

sublimation (the snow in the tree canopy returns to the
atmosphere without first having to melt) takes place in
forests.

Issues

Forest thinning is another controversial topic. The

conventional wisdom is that forest thinning below very
high altitudes perhaps, 9000 feet, will only produce
increased stream runoff for a limited period of time,
namely, the time it takes for vegetation to regrow in
areas now receiving more sunlight. However, there
may be new information on this. In the March/April
2009 Issue of “Southwest Hydrology”, there is an
article written by the Valles Caldera Preserve Biologist
Bob Parmenter in which he refers to a study conducted
at the Preserve which examines the relationship
between tree canopy densities and sublimation of
snowfall which is a different issue than the impact
of vegetation on the transpiration of snow melt.
http://www.swhydro.arizona.edu/archive/V8_N2/feature2.pdf
It might be useful for the various Regional Water Plans
that have thick forests to consider this work which has
been or which will soon be published by Wiley Books.

H. Find Ways to Reduce Deliveries of Water to

Texas, Oklahoma, Arizona and Mexico.

There are many opportunities to negotiate agreements

with States that receive water from New Mexico. More
water may be allowed to be diverted in New Mexico in

38
exchange for New Mexico investing in the development
of alternative water resources in those States. In some
cases the quid pro quo may be simply that New Mexico
agrees to allow other surface and groundwater that is
currently flowing into those States to continue to flow
unimpeded and not be developed for use in New
Mexico (e.g. Gila River water and Salt Basin water).

Alternatively, those States might fund water projects in

New Mexico in return for a share of the additional water
that was developed. Some of the existing agreements
hint at cooperation for increasing the amount of water
that can be made available for all parties to share. We
have been remiss at not responding to these openings
for arbitrage and shared investment which have
presented themselves and continue to present
themselves.

Issues

When it comes to River Compacts, negativity tends to

prevent us from taking positive actions to improve the
situation. Those responsible for water policy in New
Mexico need to be a bit more innovative and pursue
cooperative projects with other States and even
Mexico.

I. Recognize that our Streams and Shallow

Aquifers are Delivery Mechanisms in Addition to
being Sources of Water.

There are many exciting possibilities when we think of

our streams and aquifers being delivery mechanisms,

39
not just water sources. Our shallow aquifers are in
general over exploited. In many cases they can hardly
be considered a sustainable source of supply let alone
a source for increasing the water supply. Deep water
(fresh or brackish) is 4,000 to 12,000 times the size of
our renewable water resource, and it is not clear that
the deep-water resource is not being continually
recharged at a rate that exceeds a reasonable rate of
withdrawal. Clearly, our annual stream flow and
shallow aquifers have served New Mexico well for
many years but it may be time to recognize that the
relative size of the deep and brackish water reserve
and other sources of new water means that it is time to
consider our shallow aquifers at least partially as a
delivery system in addition to being a source of water.

Issues

Viewing our surface and groundwater aquifers more as

a delivery mechanism than a source of water is a new
way of looking at things that may take some time to get
used to. This will raise questions with respect to who
has the right to utilize an aquifer as a distribution
system. Our water professionals and water policy
makers may find it difficult to adjust to this new way of
looking at streams and aquifers as a distribution
network in addition to and possibly even more
important than their role as a source of water. But
adjust we must as our population increases and we
may need to supplement the existing cadre of those
who have been influencing opinions and policy with
respect to water with some new blood if we are to
overcome our reluctance to see the water situation
in New Mexico as being both very complex and a

40
situation that includes many opportunities for those
who are prepared to go beyond the notion that our
water supply is fixed and that conservation and
population control are our only tools for dealing with the
future.

J. Pay Attention to Opportunities to Conserve

Water

Every drop of water saved is a drop that can be used

for some other purpose. In some cases, where less
water can be used to achieve the same result or water
wasted can be reduced, the cost of conserved water
can be very little, approaching zero. In other cases,
conservation can be expensive for example substituting
air cooling in a process that was designed to employ
water cooling or where an initial conservation technique
such as lining a ditch with concrete is being enhanced
with plastic liners.

Sometimes deciding how to characterize a technique

that improves our water budget is more of an
accounting issue than something that is substantive. A
good example of this would be roof capture which
reduces the use of potable water for landscaping
purposes. Is this conservation or the generation of
additional water supply allowing for conjunctive use?

Issues

There are many approaches for what might be

considered pure municipal and domestic conservation
where the reduction in water use is not the result of

41
applying another source of water (e.g., roof or ground
capture water or treated wastewater) to reduce the use
of potable water. I have not focused on these pure
conservation approaches in this pamphlet mainly
because the public acceptance for the need to apply
these approaches is already very high and also
because the number of different approaches exceeds
what can be described in a relatively short document. I
do not want to give the impression that I do not
recognize the importance of these conventional
conservation approaches. They are clearly very
important in enabling New Mexico to be sustainable.
And in many cases, water conservation also results in
energy conservation.

Summary

In this document, I have focused on what many would

consider to be alternative water resources, obstacles to
development of water resources, obstacles to
implementing conservation measures, and the need to
have broader cooperation up and down our major river
systems and with our neighboring States and Mexico
because these are the areas that are not, in my
opinion, being given adequate consideration.

The table on Page 16 puts some of these alternative

water resources in perspective with respect to their
cost and potential size. Of interest with respect to
gaining support for taking action to increase our water
supply, there are opportunities in every single one of
the sixteen Water Regions in New Mexico.

42
IV. Impacts of Our Current Passive Water Policy

Who benefits from policies that, in effect, discourage

water development? Certainly those who own water
rights benefit from shortages that drive up the value of
their water rights. Is creating value for water rights
holders an appropriate goal of New Mexico Water
Policy? Most New Mexico citizens are buyers of water
not sellers. Some may believe that keeping water
scarce will reduce population growth. Most studies
show that such a policy is ineffective. The cost of water
from the highest cost sources will result in an annual
cost per household of about $500. This is not
sufficiently high to discourage many people from
moving to New Mexico and the high cost water most
likely will be blended with lower cost water to produce
an average cost per household that is much lower. It is
hard to see the causal relationship between a high
price of water and either a decrease in birth rates or an
increase in death rates.

What happens is simply that, as water rights prices

increase beyond $3,000 per af (which is equivalent to
an annual cost of $150 per af if the purchase of the
water right was financed by a loan at 5%), selling water
is more profitable than farming which results in more
water and land being transferred out of agriculture.

Reducing agriculture in New Mexico has many

negative results. Often the land taken out of production
is land that was a small farm rather than part of a large
commercial farming operation. Thus many people are

43
displaced and communities are negatively impacted. In
some cases where a farm is getting their water
delivered by an acequia or other type of community
water system, the loss of that water may create
operational problems for that water system. Taking
land out of agricultural use harms wildlife both on the
land that was being farmed and nearby land which was
receiving water from the irrigation of the adjacent farm.

Agriculture may no longer be a major contributor to the

GDP of New Mexico, but tourism is, and tourism
depends partially on the look and feel of New Mexico
and also on the health of our wildlife. The vitality of
small farming communities is a major factor in what
appeals to tourists, so we withdraw water from the
agriculture sector at our peril. We also need the
agricultural production for our food needs. Doubling our
population over a 40 to 60 year period while cutting our
agricultural production by 20% would not appear to be
a sensible way of achieving food security.

We need to find a better way. We also have to

recognize that surface flows will become an increasing
proportion of the drinking water supply for communities
along the Rio Grande. Thus we need to consider how
best to protect Rio Grande water quality. Restricting
certain dangerous activities along the banks of the Rio
Grande and its reservoirs may be something that
needs to be considered in New Mexico. It is standard
operating procedure in many places in the United
States.

44
Our perception that there must always be a shortage of
water is self-inflicted. It is my fond hope, and the
reason for writing and distributing this pamphlet at my
own expense, that someday New Mexico will be able to
free itself from a mindset that appears as if the State
Engineer and the New Mexico Legislature have
declared that we must protect our water shortage….we
love our water shortage….we would be very upset
without our water shortage. Obviously that is not how
they are thinking, but the combination of conflicting
rules and deficiencies in institutional arrangements and
lack of proactive initiatives could easily give that
appearance to someone who was not familiar with the
complexity of the situation. Certainly, other States with
fewer water resources must wonder if New Mexico
should be doing a better job at managing its water
resources.

***

The author of this pamphlet is the Chair of the Technology

Committee of the Region 3 (Jemez y Sangre) Water Planning
Council, the Sierra Club Rio Grande Chapter Water Issues Chair
and Sustainable Agriculture Issues Chair, founded the New
Mexico Weather Modification Association, is on the Board of
Directors and is the Treasurer of Earth Works Institute, and is
involved in a range of environmental and land-use planning
activities in the Galisteo Basin where he resides. Mr. Silber is a
member of the New Mexico Food and Agriculture Policy Council.
This article represents only his views and not necessarily the
views of the organizations that he represents.

For further information contact Sigmund Silber at

ssilber1@Juno.com Please feel free to copy and distribute all or
part of this pamphlet. Acknowledgement would be appreciated.

45