Climate Change, Development, Environmental Politics, Groundwater, Law and Courts, New Mexico, sustainability, Water

How Not to Manage for Drought in New Mexico

By KAY MATTHEWS

The most recent National Resources Conservation Services (NRCS) report predicts that Elephant Butte Irrigation District will have 38 percent of its normal spring run-off flows this year and won’t even begin the irrigation season until June; it “normally” begins in February. The report also says that “While it is painful to contemplate, there is also the possibility that, if the spring runoff fails, we may not have enough water to make any release, allotment or delivery in 2013. Being so dry for so long, the river will have very high conveyance losses, and those losses occur before any diversion or delivery. A zero release season has never occurred in Project history, and we certainly hope it will not occur this year, but we are in hydrologic new territory, and we must consider the worst.”

This information compounds the fact that the past two calendar years (2011 and 2012) have been the driest and warmest two-year period on record for New Mexico. According to the NRCS, only 1956 was drier in New Mexico: “In light of these desiccating facts, it is no surprise that New Mexico reservoir storage is well below normal in the Rio Grande Basin, Canadian Basin, and Pecos Basin.

NRCS graph

NRCS graph

These figures have been all over the news reports (the Albuquerque Journal’s John Fleck is always a good source of information and analysis) and have been a hot topic of conversation on the NM State Water Plan listserv (NMStateWaterPlan@yahoogroups.com) that circulates among an eclectic group of folks following water issues in New Mexico. Everyone has a different idea of how to deal with these extreme circumstances. Lynn Montgomery, who contributes to the group, articulated his ideas in an article for the Sandoval Signpost. He wants the State to do its job and implement priority administration through the Rio Grande adjudication. He also wants us to recognize that we are “desert dwellers” and implement meaningful water conservation. A water broker wants us to use free market forces to move water around to the “highest and best use.” Others exchange information on cloud seeding in Utah and Colorado and want New Mexico to seriously consider trying it. And Las Cruces state senator Joseph Cervantes introduced Senate Bill 440 asking for an appropriation of $120 million from the general fund to protect the senior water rights of the lower Rio Grande Basin through the “importation” of water, the conservation of water, and “acquiring” and/or “retiring” water rights. In a video interview with Watchdog New Mexico Cervantes explained his reasoning: we’re trying to bring growth and development here in New Mexico and that requires water.

NRCS graph

NRCS graph

Unless your idea of how to address current and impending drought in New Mexico includes building pipelines, dams, and tunnels to move water around and spending lots of money buying water rights you’re not likely to be hired by a water management bureaucracy in New Mexico or get elected to the legislature (except maybe Peter Wirth or Michael Sanchez). Let’s take a look at some of the consequences of these practices.

Compact issues:

The state of Texas filed a lawsuit in the U.S. Supreme Court in January alleging that New Mexico has failed to comply with the Rio Grande Compact. The suit claims that because of groundwater pumping below Elephant Butte Reservoir Texas isn’t getting its required water delivery. As I mentioned above, Rio Grande flows in Elephant Butte have been way below normal for the past two years, and with the dire warning issued by the NRCS regarding this year’s flows, there’s going to be even more pumping of groundwater by the farmers in the irrigation district—and these are big-time farmers who are already involved in the litigation of the Lower Rio Grande Adjudication that La Jicarita has covered extensively.  One of the Stream System issues being heard in this case is the connection of ground and surface waters, which has to be factored into the final decree determining everyone’s water rights. In an earlier agreement between Texas and New Mexico it was agreed that New Mexico would deliver more surface water to offset its groundwater pumping, but that deal fell apart and Texas has taken the case to the Supreme Court. Now, in this third year of drought, without adequate surface irrigation water, farmers and ranchers are going to continue to pump groundwater to meet their needs.

The Rio Grande near the Texas border. Photo by Nick Miller/Borderzine.com

The Rio Grande near the New Mexico/Texas border. Photo by Nick Miller/Borderzine.com

This isn’t the first time the two states have been in court over water allocation; the first time it was over the Pecos River. Em Hall, former UNM law professor, wrote an entire book about it, High and Dry: The Texas-New Mexico Struggle for the Pecos River. In this case, which lingered in court from 1974 to 1988 during the infamous State Engineer Steve Reynolds’ tenure, Texas also claimed that New Mexico failed to deliver required water under the terms of the Pecos River Compact. This compact differed from the Rio Grande Compact in that it included a provision stating that New Mexico could not deplete “by man’s activities” the 1947 condition of the Pecos River, which didn’t obligate the state to deliver a set amount of water to Texas but to curtail human uses of the river to meet that 1947 condition. Ultimately, however, instead of complying with the condition by enforcing the state’s priority system, which would have required acknowledging Carlsbad Irrigation District’s senior water rights by shutting off Roswell area junior wells to get water to the Texas state line, the New Mexico state legislature bought and retired enough water rights to meet the Texas water demand. It cost $100 million.

Native American Adjudication Settlements:

The water rights settlements for the Navajo Nation (San Juan Basin), the pueblos of Pojoaque, San Ildefonso, Nambe, and Tesuque pueblos (Aamodt), and Taos Pueblo (Abeyta) were signed by the federal government and the state of New Mexico in 2010 ending years of litigation (almost 50 years for the Aamodt). The Colorado Ute Indian Water Rights settlement, which also affects water flows in New Mexico, was signed in 1988 (then resigned in 2000) and set the standard for costs: originally slated to run at over $500 million, the amount of dams, reservoirs, and hundreds of miles of pipeline and canals were eventually reduced, but only fractionally. The New Mexico settlements continue to rely on massive spending and movement of water.

• The Navajo Nation was awarded 600,000 acre feet per year (afy) or 55 percent of San Juan Basin water rights. This settlement also entails several massive projects, the Navajo Irrigation Project (begun over 40 years go and still not completed) and the Navajo-Gallup Water Supply Project, and would cost the federal government $800 million. It immediately generated controversy from Indians and non-Indians alike. The Citizens Progressive Alliance, based in Farmington, claimed it allowed “special interests to promote speculation and unrestrained growth at the expense of the common good,” and that it allowed the Navajos to market the water. In a letter to the Albuquerque Journal, Elouise Brown, President of Dooda Desert Rock (the Navajo organization opposed to the proposed Desert Rock coal fired power plant on the reservation), wrote that “The proposed diversion across hundreds of miles of desert smacks more of the white man’s predisposition toward resource exploitation than it does of traditional Native American values of cautious use of resources.” And the Ute Mountain Ute tribe, issued a priority call on San Juan River water, claiming a priority date of March 2, 1868 (as opposed to the Navajo priority date of June 1, 1868) for 7,300-9,300 afy of water. The tribe notified the New Mexico Office of the State Engineer of this claim before the state had signed the Navajo Nation Water Rights Settlement, but was apparently ignored. At the time, the state claimed a hydrographic study, not yet completed, would show that there would be enough water for everyone concerned.

• The Aamodt settlement governs water in the Pojoaque/Nambe/Tesuque communities that are being gentrified with new money and Santa Fe spillover; and the pueblos, Tesuque, Nambe, San Ildefonso, and Pojoaque, some of whose hotels, golf courses, and casinos have made them big-time players in the economic development game. Pojoaque Pueblo, in particular, has become one of the main power brokers, and the guarantee of water rights for future development in the Aamodt settlement reflects that. Santa Fe County intends to transfer 588 acre feet per year (afy) of water from Top of the World Farm (TOW), in northern Taos County, to help meet its obligation of 750 afy of water to non-pueblo residents, while the Department of the Interior will seek to transfer the remaining TOW water rights, 1,100 afy, to help meet its obligation of 2,500 afy to the pueblos. The County and feds will argue before the Office of the State Engineer—the transfer applications will be protested by any number of people and organizations and force a hearing—that by shutting down the TOW irrigation wells the aquifer water will migrate to the Rio Grande and flow downhill to the diversion dam where it will be diverted into the multimillion dollar water delivery system to Pojoaque Pueblo and non-pueblo residents who pay to hook up to it. If and when this water will reach the Rio Grande is open to debate, and everyone involved will have their own hydrologic study to back up their claims.

• The Abeyta Adjudication governs only one pueblo, Taos; the other parties include the Taos Valley Acequia Association (representing 55 acequias), the town of Taos, El Prado Water and Sanitation District, and the mutual domestics. Uncontracted San Juan/Chama water rights of 2,990 afy (this was later reduced by 300 afy, which goes to help fulfill the terms of the Aamodt) are slated for settlement of the Abeyta. San Juan/Chama water is not included in the Navajo Nation settlement’s 55 percent of San Juan Basin water rights but, if the terms of the Navajo Nation settlement are not achieved, the tribe would assert a Winters Doctrine (the Doctrine declares that when Congress reserved land for Indian reservations it also reserved water, both present and future, to fulfill the purpose of the reservation) claim to the San Juan River, threatening supply for the San Juan/Chama Project. The Ute Mountain Ute Winters Doctrine claim will also impact the San Juan/Chama supply. If there is insufficient snowpack and rainfall in the San Juan Basin there will be very little San Juan River water for the Colorado tribes or San/Juan Chama water for Taos Pueblo or any of the downstream contractors: in 2002, only 6,000 afy of project water came through the Azotea Tunnel into Heron Lake. The Abeyta will also use a “mitigation well system to offset the surface water depletion effects resulting from future groundwater diversions and consumption.” Mitigation wells, which reach 1,000 feet or more into the deep aquifer, will be used to offset at least 50 percent of any Taos Valley tributary surface water depletions resulting from future groundwater pumping. Because pumping water from these deep wells does affect stream flows in the Rio Grande, users will have to obtain offsets of water to compensate for these depletions. These offsets may be acquired by changing the point of diversion of water taken from Rio Grande tributaries  (water purchases from wells) or using San Juan/Chama project water. All of these groundwater and surface water depletion effects will be calculated using a groundwater flow model that is incorporated into the proposal, called the Settlement Model.

Water transfers to Facilitate Economic Development

I’m sure Senator Cervantes would agree with the bureaucrats who have devised these water projects and settlements: we need more water to underwrite economic development for the extractive industries, agribusiness, and the construction and service industry jobs that keep cities afloat. Water transfers, like Top of the World and the hare-brained scheme to drill 37 wells deep into the San Augustin aquifer and pump 54,000 acre feet of water per year for 300 years to the highest bidder involve huge amounts of water. While other transfers involve smaller amounts, it all adds up. The city and county of Santa Fe have been applying to transfer water rights over the past decade to the Buckman Well Field and the Buckman Direct Diversion to offset depletions at the wells and for future development. While the city will be accessing over 5,000 afy of San Juan/Chama Project water through the Buckman Diversion, the county has a contract for only 375 feet of Project water and therefore is buying and transferring water rights, primarily from agricultural land in the Middle Rio Grande Basin, to fill its diversion allotment of 1,700 afy. In 2007 over 200 well owners in the county filed protests against the county’s eight applications to transfer 110 afy of water to 19 wells scattered throughout the county to supplement the Buckman wells. The move-to wells are spread out from South 14, through the community college area and Agua Fria Village, to NM 599 near the intersection of CR 62. The proposed transfer rights belong to developers who are required to provide water to the county utility before getting approval for their building projects. Protests of these transfers, large and small, clog OSE arteries as they funnel through the administrative hearing process. Consequently, the agency tries to dismiss as many as it can through technicalities.

At the 2005 annual meeting of the New Mexico Acequia Association Peter White, a former OSE attorney who now represents parciantes, acequias and individuals in water transfer protests, explained that the OSE first tries to deny protestants standing, placing undue burdens on those seeking to deny transfers. He outlined several other areas of concern in OSE policy: 1) the legitimacy and quantity of water rights being transferred need to be determined; 2) the Rio Grande Compact always needs to be raised as an issue of public welfare; 3) the OSE uses a loophole in the state regulations that allows municipalities to hold water rights for 40 years without having to put them to beneficial use; 4) water judges in each district can’t be disqualified even though they often have conflicts of interest; and 5) the OSE is always reluctant to enforce priority administration because so many municipalities have junior water rights. White emphasized that water sharing is a more equitable solution to the state’s water adjudications, but that sometimes priority must be invoked to protect acequias and rural communities.

Government institutions continue to manage water resources as a commodity and those who “doth protest too much” face bureaucratic and legalistic impediments in the narrow window of opportunity they have to challenge that management (look for an article by La Jicarita contributor Sam Markwell in the coming months on the Active Water Resource Management decision rendered by the NM Supreme Court on November 1 that places additional limits on those challenges). As Peter White and others quoted in this article believe, if at this point in the game the repartimiento or sharing of water can only be achieved on a very small scale within community water systems, at the very least water adjudications must be completed to protect senior water rights and serious conservation measures must be implemented to avoid all the political machinations that are promoted as solutions—the pipelines, the dams, the groundwater pumping, and the money, lots of it.

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About lajicarita

La Jicarita is a community journal that advocates for land based communities and sustainable use of public land resources in northern New Mexico. http://www.lajicaritanews.org

Discussion

5 thoughts on “How Not to Manage for Drought in New Mexico

  1. This addresses the Native American Adjudication Settlements & the Winters Doctrine of 1908
    This is the heart of the matter :

    “the Doctrine declares that when Congress reserved land for Indian reservations it also reserved water, both present and future, to fulfill the purpose of the reservation)
    The Winters Doctrine 1908, (with no science to support it) gives vast future water rights to tribes , that were never in any historical context used by those tribes. It contradicts the Treaty of Guadeloupe de Hildago of 1848 which promises to honor existing property rights. Those existing property rights under Mexican Governance have to include Water Rights. Vast future Water Rights for Native America, have no history under Mexican Governance. The creation of The Indian Appropriations Act of 1851 that created reservations, is after Guadeloupe de Hildago. How does any governing body give away again that which is already promised in a previous Treaty. Or denigrate the existing Water rights of some, by recognizing future rights of one group only, by making a prejudicial ruling favoring one group by race. By definition racist. How can a domestic Appropriations Act supersede a previously existing International Treaty between Nations ? It shouldn’t. The Winters Doctrine should have little or no place in any territory governed by Guadeloupe de Hildago.The Acequias increasingly are under attack from the pueblos and are under a different standard of protection(or non-protection) than the pueblos’ water rights. Both in the courts and on the ground. This was not part of the pre-existing situation to US governance. Native America should have first right to the most water historically used, under Guadeloupe de Hildago there is no future water right priority. Recently the pueblos of New Mexico have claimed they are using less than half their Rio Grande water rights. This is based upon the Winters Doctrine, not historical use. How well or poorly, has this been presented in the Courts ? The Aamodt Settlement evidently ignored Guadeloupe de Hildago. Many in that basin appreciate that Aamodt is under funded, and unlikely to be funded, given the massive debt of the US government.This is ,of course, much larger than Aamodt. There is enough time given the current financial disasters , ongoing droughts to recognize the flaws inherent in the continuing use of Winters Doctrine over the Treaty Of Guadeloupe de Hildago , which should have come closer to putting all of us in the southwest and west facing the future together.

    Posted by alexander brown | February 18, 2013, 4:40 pm
    • Two of the many rivers in Taos Valley belong to Taos Pueblo. And while this sacred water is allowed to flow into the Rio Grande for everyone’s use, it could well be dammed, reservoired and sold to the highest bidder.

      Posted by morris moore | February 18, 2013, 8:58 pm
  2. The revised Aamodt Settlement which was redefined by the implementation committee is currently being held up by the Department of Interior. The new Settlement will have to be signed by all parties including the Federal Government after the Federal Government agrees to its validity.

    The original Settlement which was prematurely signed was only signed by the parties involved but not by the federal government or the non Indian water users.

    The legislation that was signed by Congress and the President during the lame duck session in 2010 was only for authorizing funding.

    Posted by Paul White | February 19, 2013, 2:12 pm
  3. Thank you Kay Mathews and La Jicarita for your in depth reporting that no other publication wants to go into such detail about.

    Posted by Paul White | February 19, 2013, 6:29 pm

Trackbacks/Pingbacks

  1. Pingback: UPDATED: Stop the $120 Million Blank Check for “Lower Rio Grande Water Rights” in the 2013 Legislature! | Occupy New Mexico - February 22, 2013

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