By KAY MATTHEWS
Last week Senate Bill 440, Senator Joseph Cervantes “Lower Rio Grande Water Rights” bill to address water shortages in the Lower Rio Grande basin was reduced to its elementary language by the Senate Conservation Committee and then passed out of committee. It now reads: “One hundred twenty million dollars ($120,000,000) is appropriated from the general fund to the interstate stream commission for expenditure in fiscal year 2014 and subsequent fiscal years to acquire, retire, protect and conserve water rights and conserve water in the lower Rio Grande basin. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.”
As reported and videotaped by Occupy New Mexico, before the Conservation Committee passed the bill it held an executive hearing—meaning the public was kicked out of the room—with the New Mexico Attorney General’s Office and the Office of the State Engineer (OSE), who briefed the committee on how the bill might impact the litigation in which the state of New Mexico is currently engaged: 1) the lawsuit the Attorney General filed against the United States Bureau of Reclamation over a change in the allocation of water in the Elephant Butte Irrigation District; and 2) the lawsuit filed by the state of Texas alleging that New Mexico has failed to make water deliveries to Texas as stipulated by the Rio Grande Compact.
The Attorney General already made its concerns public in the Fiscal Impact Report on the New Mexico Legislature web site. As the Senate Bill 440 heads to the Senate Judiciary Committee where these concerns will be aired let’s take a closer look at the state’s lawsuit against the Bureau of Reclamation.
In the Fiscal Impact Report the Attorney General refutes the claim that there is a “severe imbalance” between water rights holders and the Rio Grande Compact with the claim that “Any ‘imbalance’ on the Rio Grande is directly caused by the 2008 Operating Agreement entered into by the Bureau of Reclamation, EBID [Elephant Butte Irrigation District] and the El Paso Water Improvement District #1, which illegally allocates about 170,000 acre feet of water in full supply years to Texas water users that rightfully and lawfully belongs to New Mexico water users. . . . The bill further purports to find that this ‘imbalance’ is threatening the economic well-being of the state. In fact it is the illegal 2008 Operating Agreement that threatens the economic well-being of the state and is causing significant economic losses for the residents of the basin.”
The Attorney General’s lawsuit alleges that in July of 2011 the Bureau reallocated approximately 33,000 acre feet per year (afy) of New Mexico Compact credit water to Texas based on the Operating Agreement. Previously, the EBID received 57 percent of the water and El Paso received 43 percent, based on irrigated acreage in each of the districts. The new operational protocol now allocates 38 percent of Rio Grande Project water for EBID and 62 percent for Texas. The districts both assert that the new operating agreement takes into account groundwater withdrawals by EBID farmers as well as irrigated acreage.
The issue of groundwater withdrawals is a complicated one. In 2012 the OSE sent letters to irrigators whose metered pumping approached the annual limits associated with their water rights. The limits were determined as part of the Lower Rio Grande adjudication, which continues in the Third Judicial District Court in Las Cruces. The Farm Delivery Requirement was set at 4.5 afy per acre, with the opportunity for farmers who have historically pumped larger amounts of groundwater to increase that delivery to 5.5 afy. Many farmers have been forced to pump their limit—and perhaps over their limit—because of severe surface water shortages the last few years and the 2008 Project Operating Agreement that allocates less surface water.
In a 2012 report by the OSE water meter data showed there was a dramatic increase of groundwater pumping in the Lower Rio Grande in 2011. Records show that 280,000 acre feet of groundwater was pumped for irrigation in 2011, twice as much as in either 2009 or 2010. The 2008 Operating Agreement allocated 268,000 acre feet of Rio Grande Project water to the El Paso County Water Improvement District in 2011, while only 77,000 acre feet were allocated to EBID. The state claims that most farmers didn’t exceed the Farm Delivery Requirement, but that more of their irrigation water came from groundwater pumping rather than surface water. In the report Interstate Stream Commissioner Estevan López expressed concern over the 2008 operating agreement: less surface water being allocated to New Mexico farmers also means less aquifer recharge.
While the EBID believes the Operating Agreement settlement headed off a legal battle between Texas and New Mexico in the United States Supreme Court, it appears that is where the two states are headed after all. Texas claims that New Mexico has drilled more than 2,500 wells below Elephant Butte since the Rio Grande Compact was filed, channeling river flow into the aquifer. So now we have both states claiming that less surface water is being supplied to its constituents. But New Mexico also claims that the farmers who are drawing water from wells have water rights that predate the Compact.
It’s beyond the purview of a small journal to parse the legal machinations involved in these cases: that’s what they pay the big bucks to the water attorneys to do. Like the Occupy New Mexico folks, I would have liked to be present in the Conservation Committee executive session to hear the Attorney General’s Office and the OSE provide information regarding these cases and ask a few questions: why wasn’t the state of New Mexico a party to the 2008 Operating Agreement and why did it wait until August 8, 2012 to file a lawsuit against it? Otherwise, I try to monitor the proceedings in the Lower Rio Grande adjudication by periodically going to the web site and checking in with some of those involved in the case, particularly Scott Boyd, whose claims against the Rio Grande Project I’ve previously detailed in La Jicarita.
There are no hearings currently scheduled, just deadlines for discovery and summary judgment motions regarding several of the Stream System issues, including Boyd’s. But we should know this week whether the Attorney General and the OSE have their way with Senate Bill 440 and it dies in either the Judiciary or Finance committees.