D  e  s  e  r  t     E  x  p  o  s  u  r  e      february 2005

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Controlling the Flow

The state has named the Lower Rio Grande basin a "water master district." What does the appointment of a water czar to "actively manage" the area's resources mean to farmers, local water systems and what happens when you turn on the tap?

By Jack King

One of Robert Faubion's six wells has begun to sputter. "It'll pump water, then it'll back off and won't be pumping as much, then it'll pump and it'll have a lot of air bubbles in it," says the Mesilla Valley farmer, whose family has grown crops in the valley since the 1930s.

This is an older well that could have some mechanical problems, and Faubion emphasizes that his other five wells are doing fine. It's too early to know if the well's staccato production is a bellwether of things to come. But, unlike other years, water is probably not moving fast enough through the sand and gravel or clay formations underground to replace the water that the well is pumping. Asked if other farmers in the valley are having the same problem, Faubion replies, "Several."

Signs of the region's long-term drought are obvious in the Lower Rio Grande basin. Storage in Elephant Butte and Caballo reservoirs, which provide water to users in New Mexico and Texas, is less than 100,000 acre feet, where in a wet year Elephant Butte alone would hold up to 2 million acre feet, says the State Engineer's basin manager, Erek Fuchs.

For the last two years, farmers like Faubion have received irrigation allotments from the reservoirs of eight acre inches per acre, where, at least since the drought of the 1970s, they had been receiving allotments of three acre feet per acre. (An acre foot is 325,851 gallons, enough to supply three average-sized households for a year.)

The irrigation drains near Faubion's farm, which carry excess water from the fields back to the river, are dry—a sign that the water table has fallen. Elephant Butte Irrigation District (EBID) treasurer-manager Gary Esslinger says that, during irrigation season, when farmers are using wells to supplement their meager surface water allotments, all the district's drains are dry.

As far as groundwater is concerned, Fuchs calls the Mesilla Bolson, the aquifer that runs beneath the most populated part of the valley "an extensive and robust system." It's just that the aquifer and the river are connected and interrelated. If flow is down in the river, so is recharge to the aquifer. Conversely, there's the issue of "hydraulic gradient," the giant sucking action of all those wells pumping water from the aquifer.

"Essentially, it's one for one anywhere in the valley. You pump a well and it's going to affect flow in the river, in many cases almost immediately. So, we really cannot manage one without the other," Fuchs says.

To deal with these issues and others, in December the State Engineer's office named the Lower Rio Grande basin a water master district, under its statewide Active Water Resource Management (AWRM) program. The district will also include the Hot Springs basin, west of Truth or Consequences, and the Las Animas basin, west of Caballo Reservoir.

Under the State Engineer's order, all wells in the district must be metered by March 1, 2006, except for domestic wells and those used to irrigate an acre of noncommercial trees, lawns or gardens, or for grazing. Regulations tailored specifically for the district are in the process of being drafted and should be ready for public hearings in early 2006. Simultaneously, the State Engineer is in the process of selecting a water master, Fuchs says.

Naming the Lower Rio Grande basin a water master district means the State Engineer considers it an area where something crucial is happening regarding water. The water master will "actively manage and administer the diversions and use of water from the Lower Rio Grande," according to a State Engineer's office press release announcing the action.

Initially, the task of the district will be the fairly neutral one of collecting data: getting all the wells metered and seeing how much water is being pumped. But, eventually, that mandate to "actively manage" may have to take effect, Fuchs says.

"Everyone is saying, 'You guys want to limit what I take out of the ground.' Well, I really couldn't tell anyone that is not an eventuality," Fuchs says. "Part of the point and purpose in this campaign is to address issues of waste or over-diversion."

The Lower Rio Grande is one of three basins in the state that have been named water master districts. The others are the Rio Gallinas basin, near Las Vegas, and the Rio Hondo basin, near Ruidoso, says State Engineer spokeswoman Karin Stangl.

Elsewhere in the state, some groups have gone on the offensive against the AWRM program. On Jan. 3, the Middle Rio Grande Conservancy District, the Tri-State Generation and Transmission Association Inc. and the New Mexico Mining Association asked the state's 7th Judicial District Court to bar enforcement of the regulations, charging they are unconstitutional and the State Engineer's process in adopting them was arbitrary and capricious.

EBID attorney Steve Hubert says the district was invited to join the lawsuit, but declined. Instead, along with the city of Las Cruces, Dona Ana County and New Mexico State University, it has launched a series of negotiations with the State Engineer's office over the district-specific regulations and the choice and role of the water master.

To understand the State Engineer's action and the community's response to it, you need to know some history. As Esslinger notes in an article for the November 1998 edition of the New Mexico Journal of Science, Elephant Butte Dam was originally built to serve the needs of farmers. In 1906, members of the Elephant Butte Water Users Association and the El Paso Valley Water Users Association contracted with the United States to build the Rio Grande Project. The contract stated that the right to use the water from the proposed irrigation works would be appurtenant to land owned by the two associations' members.

In filings with the New Mexico territorial engineer in 1906 and 1908, the US Bureau of Reclamation claimed all unappropriated water in the Rio Grande and its tributaries for the project, except for 60,000 acre feet the US is obligated to deliver to Mexico by the 1906 Rio Grande Convention Treaty. From Elephant Butte Reservoir south, the right to use the water was divided proportionately among the members of the two water users associations.

These events have two major consequences for modern New Mexicans and Texans. First, the Rio Grande Project has an obligation to deliver 47 percent of the water in Elephant Butte Reservoir to what is today El Paso County Water Improvement District No. 1. Second, there are the implications of New Mexico water law, whose central tenets are the doctrines of beneficial use and priority of appropriation.

"Beneficial use" means that to retain the right to use water you must be able to show you've put it to some use considered beneficial by the state, such as agriculture, household use, municipal/industrial use or recreation. "Priority of appropriation," usually dated from the day construction work to use the water began or an application to appropriate the water was filed with the State Engineer, means the party with the earliest date is entitled to full use of the water before any later, or "junior," party. Under the law, no junior party is allowed to limit or harm—"impair"—that use. EBID officials are firm in their belief that few, if any, water users have a priority date more senior than the members of the two water districts.

In 1979 and 1980 the districts paid off their construction debts to the United States for the building of the Rio Grande Project and entered contracts with the Bureau of Reclamation to operate and maintain the project's easements, rights of way, canals, ditches, laterals and drains—although the bureau still owns Elephant Butte and Caballo dams and reservoirs. In 1994 the conveyance facilities were deeded to the two districts and since then they have operated their parts of the Rio Grande Project on the basis of an informal agreement about determining deliveries and accounting for water in the project. Although they have negotiated for almost a decade, they have never succeeded in reaching and signing a formal operating agreement.

(In February 2004 EBID and the city of Las Cruces filed a complaint in US District Court asking the court for a declaratory judgment on a contract between the two districts and to appoint a special master to administer it. As of January, the court had taken no action on the complaint. In December, representatives of the two districts and the Bureau of Reclamation met in El Paso. Details of these discussions are confidential, but basically the parties reached no agreement, except to keep negotiating, Hubert says.)

This impasse is important, because in 1980 the city of El Paso attempted to drill wells in New Mexico and transport the water to Texas. Eleven years of litigation resulted, which, as Esslinger's article notes, only ended in a stipulated settlement under which El Paso agreed to withdraw its water applications in exchange for EBID, and other New Mexico entities, agreeing to help it get more quantity and quality from the 47 percent water allotment Texas was already entitled to from Elephant Butte.

That promise led to the formation of the New Mexico-Texas Water Commission, which, in the late 1990s, developed a plan that included building one or more surface water treatment plants on the river somewhere between Caballo Reservoir and the Texas border. The plants would be part of a conveyance system that could get El Paso more and cleaner water, but could also serve communities in New Mexico. But implementation of the plan requires that EBID and El Paso No. 1 reach an operating agreement. The work of the New Mexico-Texas Water Commission has more or less ground to a halt, although it continues to meet, Esslinger said in January.

The unresolved situation is painfully similar to the one on the Pecos River in 1974, when Texas filed suit complaining New Mexico was shorting it on water. That litigation led to a US Supreme Court decision requiring New Mexico to deliver 34,000 acre feet of water a year for 10 years to Texas. The similarity, combined with constant, closed-door discussions over water between the two states, has caused more than one person interviewed for this story to speculate that the State Engineer created the Lower Rio Grande water master district to assure his downstream neighbors in Texas he's doing everything possible to get them their water.

Another outgrowth of the El Paso litigation is the huge, ongoing water adjudication case in the Nutt-Hocket, Rincon and Lower Rio Grande basins below Elephant Butte. That case was the product of a lawsuit EBID filed in 1986 to clarify and defend the water rights of its members.

An adjudication actually is a lawsuit in which the State Engineer issues "offers of judgment" to water rights claimants, based on its assessment of what they are entitled to and the priority date of the right. The claimants can accept or reject the offer, then enter into negotiations with the state office or go to court. The historic appeal of an adjudication to senior water rights holders is that once it's completed the State Engineer has a basis for what is called "priority administration"—cutting off junior water rights holders so senior users' water rights won't be impaired. In the Lower Rio Grande basin, junior water rights users could include private businesses, mutual domestic water associations, small systems like some that serve trailer parks, even towns and cities.

But water rights adjudications notoriously take a long time. In the Lower Rio Grande adjudication, the State Engineer began sending out offers of judgment in 1999 and the process is still far from finished. In fact, Hubert claims, it has slowed down recently amid a welter of charges and counter-charges between adjudication personnel and some of the water users' attorneys. Frank Reckard, the adjudication bureau's director, denies the process has slowed down, but he adds that it was originally expected to take 10 years and could take longer if lawsuits and administrative challenges tie it up in court.

Here again, there are two points that are relevant for the average person watching these water management regulations be put into action.

First, one line of reasoning in the lawsuit filed by the Middle Rio Grande Conservancy District and its partners holds that the Active Water Resource Management regulations are unconstitutional. The argument is that the regulations bypass the adjudication process and usurp the authority of the courts to determine water rights, violating the constitution's separation of powers doctrine.

AWRM project manager Susanne Hoffman-Dooley counters that there is an extensive and explicit state statutory framework giving the State Engineer authority to conduct water rights administration. Also, the AWRM regulations include a hierarchy of evidence the water master will look at in order to determine, in an interim fashion, the elements of a water right before an adjudication is complete.

Fuchs phrases the argument differently. "The drought is upon us now," he says. "The shortage is now. We can't wait 10, 15 years, if not longer, for a final decree to be entered by the 3rd Judicial District Court. So we have to take an administrative approach prior to the actual completion of adjudication. The way we're doing it is assembling this framework, because otherwise all we'd have is state officials running around out there telling people what to do."

The second relevant point is that the AWRM regulations adhere to the principles of state water law by declaring their first objective is to protect senior water rights. Under "depletion limit administration," if the amount of water available in a basin becomes insufficient to serve surface water rights, groundwater rights and interstate stream compact requirements, the water master may cut off junior users, the documents say.

But, during the decades before the State Engineer's office agreed to do a water rights adjudication in the Lower Rio Grande, a multitude of junior users and water rights claimants have sprung up in the basin. Records on file at the district engineer's office show four towns, at least 20 mutual domestics and private water companies, many with several wells each, and more than 50 small systems, such as those that serve subdivisions, mobile homes and RV parks, apartments, even schools.

Fuchs says the State Engineer's office recognizes it will be difficult or impossible to cut off these systems in the event of a shortage, so the regulations allow "replacement plans," under which junior users can buy or lease water from senior water rights holders.

Reactions to the regulations from people who may be affected by them give a hint of conflicts to come.

City of Las Cruces Utilities Director Jorge Garcia says the city objects to the regulations' current funding mechanism, which requires local water rights holders to pay the water master's salary. Garcia adds that the city's priority dates are as old as those of EBID.

Oscar Butler, president of Dona Ana Mutual Domestic Water Consumers Association, says that if the State Engineer is going to require mutual domestics to buy or lease replacement water, it should also control the prices senior water rights holders will charge for the water. In addition, Butler says, the state office should control the runaway development that increases demand for water in the basins.

Beth Bardwell, a program officer for the World Wildlife Fund's Chihuahua Desert Program, says the WWF hasn't formally commented on the AWRM regulations, but gives them conditional support. "Ninety percent of New Mexico's population is dependent on groundwater and in many of those aquifers we're pumping faster than they can be replenished," Bardwell says. "We feel we are headed for a water crisis. To the extent that the regulations facilitate sustainable management of our water supply, we would support them."

Faubion, an EBID board member, says the irrigation district strongly wants to see coordinated management of surface and ground water in the Lower Rio Grande basin. But farmers, too, would object to paying a tax to fund the district water master. Anyway, he asks, why does the area need one more layer of government bureaucracy, when EBID already has an extensive, computerized network for monitoring water use? He concedes that EBID would not want to do the dirty work of cutting off junior water rights holders in times of shortage, though.

Asked about the hidden corollary of the replacement plans—that as municipal and industrial development grows in the basin, farmers could make money from selling their water rights, but agriculture could disappear from the Mesilla Valley—Faubion says he personally doesn't view that possibility as a threat, but as an opportunity. "I think most farmers understand the concept of private property rights and as long as those transfers are voluntary and based on market incentives, I don't really see a problem," he says.

Farmers, he adds, are a lot less sentimental about farms than are city folk, who don't have to farm them. "I always remember something my father told me years ago, and I try to remind myself of it when I view the city growing. That was, 'Love your wife; love your kids, but don't love your land.' There're always other options," Faubion says. "I would a lot rather lose a piece of ground than I would my wife and my two boys. And I would more than voluntarily exchange it for a healthy profit, for the long-term benefit of my family.

"Do I want to? Not necessarily. Is it coming? I think it is."


Jack King is a writer and former newspaper reporter in Las Cruces.

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