State agencies request advance funding for pending Tribal water settlements

Rio Chama captured in an undated photo. The state of New Mexico is seeking funds from local lawmakers in anticipation of the passage of tribal water rights settlements for the rios San José, Jemez, Chama and the Zuni River needing U.S. Congressional approval. courtesy BLM

The settlements await Congressional approval

​By Danielle Prokop
Courtesy of Source NM

Five New Mexico Tribal and Pueblo water rights settlements still need federal approval, but state agencies have put forward funding requests to be ready if Congress approves them later this year as anticipated.
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New Mexico entered into five settlement agreements in 2022 with the Pueblos of Acoma, Laguna, Jemez and Zia, the Navajo Nation, Zuni Tribe and Ohkay Owingeh

The New Mexico delegation subsequently introduced legislation to approve the deals, including approximately $3 billion to establish funds and build infrastructure. The settlements, which have required years and sometimes decades of costly negotiations, would settle tribal rights for the rios San José, Jemez, Chama and the Zuni River.

Two other bills would correct technical errors in established Tribal water settlements and add an extension of both time and money to complete the long-delayed Navajo-Gallup water project. Federal funding granted the project a short reprieve, but it faces an upcoming deadline only Congress can delay.

A 1908 U.S. Supreme Court case established what’s known as Winters Doctrine, which requires Congress to recognize water rights for reservations. The Winters Doctrine also recognizes tribal rights as typically senior to other users. New Mexico water law uses the age of rights to determine use in times of shortage.

However, the courts have only formally determined the order of water rights in 20% of New Mexico’s rivers, a decades-long process. In the interim, lawsuits sparked between Pueblos, acequias and other users. (The Ohkay Owingeh lawsuit over Rio Chama water use is more than 60 years old).

The 2022 settlements benefit both Pueblo and non-Pueblo water users by fully resolving the water rights claims, U.S. Rep. Teresa Leger Fernández (D-N.M.) told Source NM last year.

“The senior priority water rights are going to prevail. And that’s what litigation will lead to,” she said. “The settlements lead to agreements by the tribe to give up certain acreage that they’re entitled to and work out arrangements with regards to how they exercise their senior water rights to benefit everybody in the region.”

Members of the New Mexico delegation urged House leaders to include the settlements in end-of-year congressional packages, but Congress ultimately excluded the bills.
Members of the delegation reintroduced the bills early this year.

In March, the U.S. Senate Indian Affairs Committee gave its unanimous approval to the slate of bills, which await a hearing on the Senate Floor, said one of the co-sponsors, U.S. Sen. Martin Heinrich (D-N.M.), in a written statement Thursday.

“These bills are vital to ensure we meet our trust responsibility to our Tribal communities by honoring their water rights and ensuring they have the resources to use the water they own,” said Heinrich. “I’m pleased the Senate Committee on Indian Affairs unanimously advanced these bills to the Senate floor. I encourage my colleagues on the House Natural Resources to do the same. These bills are urgently needed to help communities manage their precious and limited water resources.”

If Congress approves the settlements, New Mexico has to provide approximately $190 million for the state portion of the funds, within a decade. In 2024, the New Mexico Legislature allocated $20 million for the state match.

This year, the New Mexico Office of the State Engineer requested $35 million for the settlement funds, according to Nat Chakeres, the office’s general legal counsel.

“We have a 10-year period to come up with that $190 million, but we want to get ahead of the game while we have budget surpluses right now,” Chakeres told Source NM.

In addition, the state is requesting $500,000 more in annual funding to create staff water master positions to prepare for the settlement’s adoption by the federal government.

Water masters ensure fulfillment of the terms of the agreement, prepare annual reports on the status of the settlement activities, investigate claims and oversee any enforcement of water diversions.

“We want to be ready to run on day one, once the settlements get finalized,” Chakeres said.

Chakeres said budget discussions between state lawmakers are continuing and that he doesn’t know the exact amount that lawmakers will approve in the budget but said he’s optimistic.

“We’re confident we’ll get a strong appropriation,” he said.