By KAY MATTHEWS
On February 27 the federal government filed a motion to intervene in the U.S. Supreme Court Case No. 141, State of Texas v. State of New Mexico and State of Colorado by asking the court to restrict groundwater pumping in the Mesilla and Hatch valleys, essentially taking the side of Texas. The Solicitor General alleges that New Mexico is taking shallow groundwater that if left in place would flow back into the Rio Grande and into Texas. The motion states that the only entity in New Mexico that is permitted, under the Rio Grande Compact, to receive delivery of Rio Grande Project water is Elephant Butte Irrigation District (EBID), which through the Bureau of Reclamation is owned by the federal government, whose interest is in ensuring that those delivery requirements are met.
In reality, delivery requirements cannot be met because of drought (and climate change over the long term). We are entering the fourth year of conditions on the lower Rio Grande that have caused delays in the irrigation season—June as opposed to March—and early summer shut-downs when the reservoirs are depleted. The only way for farmers to survive is to replace the surface water they’re not getting with groundwater. In light of these facts, the latest decision rendered by the Lower Rio Grande Adjudication court on February 17 exists in a fantasy. The court granted summary judgment to the United States, the State of New Mexico, and the City of Las Cruces maximum storage capacity in Elephant Butte Reservoir of 2,638,860 acre feet of water. It granted a normal annual release of 790,000 afy. It granted the United States the right to divert Project water “without limitation” at the Percha, Leasburg, and Mesilla diversion dams.
What it didn’t grant was summary judgment for the pre-1906 claimants regarding their priority dates and the ownership of the Rio Grande Project water rights, which they claim were illegally seized by the federal government from Project founder Nathan Boyd. The court previously dismissed the seizure claim made by Scott Boyd, great-grandson of Nathan Boyd, and he is appealing that decision. The February 17 decision was appealed by the pre-1906 claimants on March 12; in anticipation of this, they filed a motion to stay further proceedings in the Stream System Issue 97-104, which will determine the amount of the federal government’s water rights in the adjudication, “until such time as it is finally decided whether the U.S. or the Boyd interests with the Pre-1906 Claimants hold the vested appropriated rights to the project and diversion rights.”
They also made another attempt to incorporate the Lower Rio Grand adjudication into the larger picture of water management on the entire Rio Grande. The motion objects that the February 17 decision grants an amount of water in Elephant Butte Reservoir that “exceeds the amount of claims to beneficial uses that could ever be historically proven by landowners below EBID and thus interferes with upstream users. Thus upstream claimants need to be joined in parties to this adjudication because their rights are being affected.” Previously they have claimed that if their appropriation of all the flood waters of the Rio Grande has a priority date of 1893, then all persons claiming later rights are affected by this adjudication, including water rights claimants with later priority dates throughout the entire stretch of the Rio Grande.
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The Aamodt and Abeyta adjudications also continue to rely on fantasy water. I recently spoke with John Utton, the Santa Fe County attorney who is handling the Aamodt adjudication. Again, it doesn’t look like the county and the Department of the Interior will be applying to transfer the 1,700 afy of Top of the World Farm water rights to the Pojoaque Valley anytime soon, although Utton did say they will file a new application rather than amend the existing application (which has been extant since 1997). Meanwhile, as the September 2017 deadline approaches that requires water rights be in place for the water delivery system to non-pueblo residents, the 3,000 parties to the adjudication must either object or accept the terms of the settlement and decide whether they will cap their wells and hook up to the water system. When I spoke with Utton, one-quarter of respondents had thus far filed objections. If a party doesn’t respond by April 7 he or she is put into a group that the state deems has “accepted” the settlement terms. There is no deadline yet for making a decision regarding a hook up to the water system.
There are several outstanding protests to proposed water transfers in the Abeyta settlement, which claim they are contrary to the public welfare of the citizens of Taos County. El Prado Water and Sanitation District’s application to appropriate ground water and change points of diversion and purpose of use was protested in July of 2011 (disclosure: I am a protestant to this application) and is only now being scheduled for a pre-hearing conference by the Office of the State Engineer. The Bernabe Ortega application, which seeks to transfer water right from the Llano Community Ditch in Questa to the Acequia Madre del Rio Lucero y del Arroyo Seco, was protested by the Llano Ditch, the Town of Red River, the Cabresto Irrigation Association, and several individuals in August of 2013.
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Those of us in the acequia communities in the upper reaches of the Rio Grande Basin, not dependent upon the EBID for water delivery, will be facing our own crises that may or may not end up in court, depending upon how litigious folks are feeling if the ditches run dry. The latest forecast calls for normal precipitation this spring. Thus far in March, in my village at 8,000 feet, we’ve gotten some rain and snow every few days, especially over the weekend of March 1. But winter snow packs remain way below 50 percent of normal, and unless it rains all spring and summer we will have to implement repartimiento, or water sharing, to get us through the growing season.
The first irrigation of the season is brutal; the lateral ditches have filled in with dead grass and debris, the water inevitably flows over the side of the ditch, and you have to run around hoeing and shoveling it free while filling “sackos”, or burlap bags with dirt to line the sides of the eroded laterals to keep the water moving toward what it is you’re trying to irrigate. It will take me all afternoon to guide the run-off orchard water onto my garlic patch, so far the only greenery besides grass that I have in cultivation. At least I’m hoping that will be the case, as we see how the spring progresses and how much water actually comes down the Rio de las Trampas.