Water Management Crisis
Santa Fe New Mexican
August 15, 2004
With competition for limited water resources
intensifying, staff writer Ben Neary took a close look at how New Mexico
manages its water resources.
State
Engineer John D'Antonio says New Mexico's legal and administrative systems for
managing water are broken. And while he's trying to do something about it, he's
running into stiff opposition. The New Mexico State Engineer's Office is responsible
for making sure that water users with the oldest rights get priority over
newcomers in times of shortage.
However, D'Antonio says, "right now, I think what we
have is chaos in terms of not being able to enforce priority administration in
the state." Priority administration is the term for state action that cuts
off those with junior water rights to make sure that those with senior rights
get their full share. D'Antonio's office recently issued a statement saying
that there are only two areas where priority administration is enforced: on the
relatively tiny Rio Costilla and Cimarron rivers of Northern New Mexico.
Water rights in about 80 percent of New Mexico remain up in
the air. And New Mexico likely remains decades away from completing the huge lawsuits
necessary to establish water ownership and specific priority dates.
Given the enormity of New Mexico's problem, the slow pace of
the courts and the on-going drought, D'Antonio has proposed new regulations
that would allow his office to cut off those with junior water rights based on
the best information available to his office, without waiting for final court
decrees in adjudication cases.
In addition, D'Antonio says his proposed "Active Water
Resource Management" regulations would make it possible for cities to
lease and purchase water rights from farmers without a lot of red tape. The
regulations would establish a mechanism called a "replacement plan"
that would allow cities, or others with junior rights, to lease a senior
priority date from owners of senior water rights. These lease arrangements
would not be subject to public hearings or protests now allowed for proposed
permanent water-rights transfers. The regulations call for "expedited
marketing or leasing" of water rights in areas covered by priority
administration. The provision would allow the state to use a simplified
"generalized hydrologic analysis" in reviewing permit applications.
In addition to making water rights transfers easier, the
regulations would make it much harder for other water-rights owners to protest
a proposed transfer. Under current state law, water rights owners may protest
proposed water-rights transfers on the grounds that granting a transfer would
impair their water rights or be contrary to water conservation or public
welfare. But the proposed regulations would give the state engineer far more
leeway. Anyone seeking to protest proposed leases or transfers approved under
the regulations would have the burden of showing that the state acted in an
arbitrary or capricious manner.
"State engineer approvals of applications made in
accordance with a generalized hydrologic analysis shall be presumptively
valid," the regulations state. D'Antonio has identified seven areas around
the state where his office proposes to implement the regulations: the San Juan
River, Rio Gallinas, Rio Pojoaque, Rio Chama, Mimbres River, Lower Rio Grande
and the Rio Hondo/Rio Peñasco tributaries of the Pecos River. For a couple of
the rivers, his office has already hired water masters who will be charged with
enforcing the regulations.
Despite some hefty public opposition to the proposed
regulations, D'Antonio has a clear mandate for his approach. The New Mexico
Legislature last year passed a law directing his office to develop the
regulations. The law states in part, "the legislature recognizes that the
adjudication process is slow, the need for water administration is urgent"
and goes on to direct the state engineer to adopt rules to promote expedited
marketing and leasing of water in areas affected by priority administration.
New Mexico's acequia associations, which administer the
traditional irrigation-ditch system, lobbied hard last year to make sure that
the law exempted acequia water rights from the waters that could be transferred
under the expedited process. Protecting and retaining acequia water is critical
to maintaining traditional New Mexico culture, acequia members say. Paula
Garcia of Mora, executive director of the New Mexico Acequia Association, says
her group has two major concerns about the proposed regulations. First, Garcia
says the proposal for replacement plans – allowing water-rights users to lease
priority dates from seniors to avoid being shut off - exceeds the statutory
authority of the state engineer and fundamentally erodes other citizens' right
to due process. Even though the law
specifies that acequia water is exempt from transfer under the regulations,
Garcia said, "We can still be impaired by a replacement plan where a junior
user continues to pump ground water, which will probably be the case in most
instances. We're still concerned; we don't think the state engineer should have
the authority to essentially circumvent consideration of public welfare and
conservation."
Garcia said acequias are also concerned that the proposed
regulations don't specify that state-appointed water masters will defer to
acequias to manage their own water, which they have done for centuries.
"Overall, looking at the regs, there is clearly the need to administer and
protect senior water rights through prior appropriation," Garcia said.
"That determination should be as deferential as possible to what the local
commissioners say are local water rights.
"Acequias are hundreds-of-years old institutions of
government, local water democracies," Garcia said. "And we think
that's a good model for how decisions should be made. But these regs go
completely in the opposite direction."
Many other critics likewise say they detect a bias in the
regulations – an effort by the state to strip water from rural, agricultural
New Mexico and make it available to subsidize the continued sprawl of the
state's cities. Lynn Montgomery,
mayordomo of the Acequia de la Rosa de Castilla in Placitas, warned a recent
hearing on the proposed regulations that they seek to reject the wisdom of the
past and strip from traditional acequias the ability to solve their own
problems and handle their own water in times of shortage. The real purpose of the regulations,
Montgomery warned, "is to allow everyone to pump as much as they please,
except for farmers, who are viewed as an irritation."
Rather than passing regulations to make it easier for cities
to continue to get more water, Montgomery said, it's time for New Mexico to
live within its means. "The state engineer must simply declare our
groundwater basins fully appropriated," Montgomery said. "We have to
do something sometime, and we have to just say no to ourselves. How can you do
priority (administration) if it isn't fully appropriated?"
But D'Antonio and other state water officials deny that
there's a built-in bias in the regulations to favor New Mexico's cities at the
expense of rural residents. Bill Hume, water adviser to Gov. Bill Richardson,
said it's clear that New Mexico cities need water. "In a practical sense, there's an imperative that cities
must have a very high priority to keep the community functioning," Hume
said in a recent interview.
However, Hume said the regulations don't encourage the
transfer of water from any one particular source to another. "There are no
biases built into these regulations," he said. "Nobody will lose their water unless the quantity is such
that enforcement of priority means the water goes to senior users," Hume
said. "It's not the state stepping in and taking over."
Both the Legislature and the recently adopted State Water
Plan call on D'Antonio's office to take steps to manage water in the state
until final adjudications are completed - likely not for decades to come.
"I think we're going to be looking at these regulations for a long
time," D'Antonio said.
He said his office has put together timelines on finishing
the adjudication process and said, "I think it's a couple of decades any
way you look at it. "We have to
have in place the tools necessary to enforce priorities," D'Antonio said
of the need for his proposed regulations. "It's that step that we have to
take to get to enforcement."
The proposed regulations, which were recently endorsed by
the New Mexico Interstate Stream Commission, will allow the state to manage its
water until the state reaches a point where it can do true priority
administration with completed adjudications, D'Antonio said.
"My main concern is that we're five years into a
drought, which could last for another five, 10 or 20 years. We don't
know," D'Antonio said. He said the state doesn't have the option to sit
idly by and hope things get better.
"What I really want to do is to get out there with a
plan in place of how we're going to administer water," D'Antonio said.
"We can't wait for a couple of decades to get adjudications in
place." And while adjudications aren't completed, D'Antonio emphasized
that doesn't mean his office is in the dark about the state's water resources.
Every time the state approves a water-rights transfer, he said, it establishes
place of use and amount of water being used on a particular parcel of land.
That information will prove critical when final adjudications are complete.
In addition to proposing the water-management regulations,
the Richardson administration has called for making resolution of
water-adjudication lawsuits a priority.
As a candidate for governor in 2002, Richardson said the state needed a
water court to address adjudication issues and said he would commit $200 million
to address that and other water problems. However, Richardson and New Mexico
Supreme Court Chief Justice Petra Maes announced in January that one judge from
each judicial district in the state would be designated to hear water cases. No
extra money was set aside to hire new judges specifically to handle water
cases.
Gene Franchini, a former Supreme Court justice, said he
believes it's fine to specify a particular judge in each district to specialize
on water issues. However, he said it would be better to put some money behind
it. "I don't know that that's going to solve the problem," Franchini
said of the governor's approach. "But this other idea of appointing two or
three water judges around the state, pro tem, or at large, and supplying them
with additional funding, I thought would be excellent."
|
New Mexico Water Usage: |
|
|
76% |
… irrigated agriculture |
|
10% |
… lost to evaporation |
|
9% |
… public supplies and domestic use |
|
5% |
… livestock, commercial, industrial, mining and
power |
|
Source: New Mexico State Engineer's Office, 2002 The New Mexican |
|
In the mid-1980s, New Mexico experienced some of the wettest
years on record. Rivers burst their banks and reservoirs overflowed. Steve
Reynolds, who served as state engineer for 45 years, was then in his full glory
as the grand old man of New Mexico water management. Graciously taking the time
to explain the obvious to a rookie reporter, Reynolds said nearly 20 years ago
that New Mexico was overdue for a major drought. Reynolds told me that he
remembered riding his horse across the dusty, empty bed of Elephant Butte Lake
in the 1930s. And he said he expected the lake would soon go dry again.
Although Reynolds didn't live to see it, it now appears his prediction might
come true.
SALEM, N.M. - The laborers had filled
countless burlap sacks with onions.
There were so many sacks that, from a distance, they blurred together
and made the earth itself appear a lumpy, khaki brown. Now, at the end of their
day, the men sat blissfully at rest. A few cradled beer cans; a few held
cigarettes. Speaking in fast, hard, Mexican Spanish, one man emphasized that
they were on their own time, and free to drink. But most of the men simply
looked at the ground. They wore hats against the sun, and their clothes were
caked white with sweat. Their hands were shiny with callouses and dirt. "Somos muy pobre," one skinny old
man said. "We are very poor." The quantity of onions these men had
picked was superhuman. But, pointing out the green stalks on the small
remaining section of unharvested field, the laborers said happily that they had
one more day's work, meaning one more day's pay, ahead of them. As long as
there's water here - in this hot, fertile river valley on the southern Rio
Grande - there will be the crops and work for the men who pick them.
At the onion shed down the road, conveyor belts feed onions
into sacks. Workers stack them on pallets, and forklifts load them onto
semitrailers for shipment. Jerry Franzoy, 62, of Salem owns this particular
onion shed. His grandfather homesteaded here, just north of Hatch, in 1917.
Franzoy says he's proud to see his son and other family
members follow him on the 750-acre family farm that produces onions, chile and
other crops. "This is what this
valley was built on, was agriculture," Franzoy said. "This is a unique valley because of the
climate and where it's situated.
There's nowhere else where you can grow that Hatch chile with that
taste. And onions." But from his viewpoint as both a farmer in this valley
and a board member of the Elephant Butte Irrigation District, Franzoy has a
ringside seat for the unfolding water crisis gripping southern New Mexico. And he's worried.
Elephant Butte Lake - which holds the water supply for Franzoy and other farmers - is running low. Irrigation flows in the Rio Grande have been choked down to a trickle. Franzoy and other farmers in southern New Mexico are increasingly pumping groundwater for their crops and keeping their fingers crossed for next year. "I'm going to be honest with you; I am very scared, " said Franzoy. "I look at that reservoir as a bank for all of us, and it's empty; it's bankrupt," Franzoy said of Elephant Butte Lake. "Without water, we have nothing."
In good years, the Elephant Butte Irrigation District delivers
3 acre-feet of water per acre to nearly 80,000 acres of irrigated land. But
this is not a good year. Gary Esslinger, manager of the irrigation district,
said the allotment this year is only 8 inches of water per acre. And next year
might be worse. An acre-foot is about 325,000 gallons of water, enough to cover
an acre of land to a depth of 1 foot. At full capacity, Elephant Butte holds
more than 2 million acre-feet of water. But now the lake holds less than
150,000 acre-feet of water, and it's on its way down.
Wayne Treers, leader of the Water Operations Group at the El
Paso office of the U.S. Bureau of Reclamation, said recently that his office
projects the lake will hit its low point of only about 45,000 acre-feet of
water by mid-September. The last time it was that low was in 1971, he said.
Franzoy said he and his neighboring farmers are relying on
groundwater pumping for some 90 percent of their water needs. In the last two
years, as water from Elephant Butte has dwindled, Franzoy said he has been
forced to pay $185,000 for five new pumps, seven new pump motors and other
unforeseen expenses associated with groundwater pumping. In addition to the
extra expense of pumping, Franzoy said, "It's kind of tough going to groundwater
because of water quality."
In many areas of the irrigation district, groundwater has
high levels of salt, which makes using it for irrigation both bad for the soil
and bad for production. "If you keep going on this high salinity, it's
going to build up in the soil," Franzoy said.
Even with the extra expense of groundwater pumping over the
river water that would normally irrigate his farm, Franzoy said his onion
production is down 30 to 40 percent.
"Most of us are having it really tough financially," Franzoy
said. "We're losing a high percentage of our production. It's scary, it's
really scary on us vegetable farmers because of the production loss."
Southern New Mexico produces nearly half of the nation's
onion crop during the months of June and July, Franzoy said. Franzoy has lived
through droughts before. But this time, in common with Esslinger, he sees some
differences.
"At the end of this season, I think it's going to be
worse than the 1950s because we're going to pull her on down," Franzoy
said of Elephant Butte. "Another
thing that's scarier than the 1950s is everybody is after this water. They're
after it for the silvery minnow. They're after it for the willow flycatcher,
and you-alls' city (Santa Fe) and Albuquerque."
Environmental groups have clamored for the federal
government to tailor water operations on the Rio Grande to support the minnow,
the flycatcher bird and other endangered species. As farmers in the Elephant
Butte Irrigation District have turned increasingly to groundwater for irrigation,
Franzoy said state officials have been accommodating in allowing them to get
new permits for groundwater wells.
Franzoy said he's trying drip irrigation on 12 acres of
chile. Using the drip system, as opposed to flood irrigation, causes the salt
to settle farthest away from the plants, he said. Franzoy said he and other farmers in the district hope for state
grant money to help them install filtration systems to remove salt from the
groundwater.
"I think the state should look into helping us conserve
water by looking into a drip system or sprinkler system," Franzoy said.
However, Franzoy said the fact that the state hasn't finished a
water-adjudication lawsuit that will establish exactly how much water farmers
in the district are entitled to is working against water conservation just when
the district needs it the most.
"The thing that is holding us back," he said,
"is they still are adjudicating this water." Franzoy said many
farmers say there's no incentive to conserve water when the state is trying to
determine how much they have a right to use.
"That's really what needs to be done with the
state," Franzoy said. "They really need to get this adjudication out
of the way. They need to light a fire under someone. That's what's holding back
a lot of farmers from conserving water."
The irrigation district itself filed an adjudication lawsuit
against the state in the 1980s seeking to settle how much water the district
and others are entitled to on the lower Rio Grande.
Esslinger said state officials have been working well with
the district to move the adjudication lawsuit forward. However, Esslinger said
the district believes the state can't limit its examination of water
consumption along the river to only looking at agriculture. The state
Legislature this year balked at the idea of curtailing landowners' ability to
put private domestic wells on their property.
"Right now, there is no domestic- well limit,"
Esslinger said. "If you're going to do it on one side of the farm, you're
going to have to do it to everybody."
Many people who live along the lower Rio Grande have moved
into the area in the past 20 years, Esslinger said, so they have no experience
with such low water levels. But Esslinger, who has worked for the Elephant Butte
Irrigation District since the 1970s, emphasizes, "this is not the first
time." "Droughts in this area are not unusual, and they're not new to
this year," Esslinger said. "The problem is you have a lot of people
who have moved in here who are not aware of how droughts have affected this
valley in the past."
TUCUMCARI - With 42,000 acres of farmland and some 600
members, the Arch Hurley Conservancy District is one of the three largest
irrigation districts in New Mexico. But while it's got plenty of land and
farmers, for the past three years, the district has had no water. Wayne P.
Cunningham, manager of the district, took his job in July 2002. He has yet to
see any water flow in the canal that runs more than 30 miles from Conchas Lake
to the farmers in his district. "We have not have any water in our
facility since June of 2002," Cunningham said. "They have not
irrigated since June of that time."
Storage in Conchas Lake is now only about one quarter of
average and Cunningham said the gates on the lake are too high to allow water
to be released to the canal. And he said it would be too expensive to pump the
water out of the lake into the canal. In 2000, the value of crops produced by
the district was more than $5.1 million. In 2003, the value of crops was
$949,000.
"Last year, we didn't hardly have anything,"
Cunningham said. Farmers are hurting, and in response, Cunningham said the
district has dropped its per-acre assessment from $15 per acre in 2003 down to
$14 this year. Next year, he said the charge is anticipated to be $7 an acre.
"It's very tough times for our farmers,"
Cunningham said. "Like you or I, if you don't have a paycheck for three
years, it's pretty severe." Some
farmers are running cattle on their lands, but lack of water hits those
operations too, leaving them without adequate feed. "The market is not
bad," Cunningham said of cattle prices. "You just don't have any
grass or hay to feed them because we haven’t had any rainfall on the project."
Grant Morper served as president of Citizen's Bank in
Tucumcari from 1965 to 1991. He's been president of the Tucumcari Chamber of
Commerce, and since he left the bank, he's continued to work in a title company
in town. "I've been here over 50 years, or in this area," Morper
said. "I was raised on a dry-land farm over there in Logan."
Suffice it to say that Morper knows what's what in the local
business and real estate market. And
while this drought is the worst he's seen, it's not the first shockwave to hit
the local farm economy. Morper recalled how area farmers used to bring in
busloads of American Indians from western New Mexico to harvest dry-land broom
corn from their fields in the 1960s. But when the federal government lifted the
import duties on Mexican corn, he said it wiped out the local industry.
"It killed our cash-crop market," he said.
Since then, however, Morper said farmers have survived on
water from the conservancy district, largely growing cotton and alfalfa.
"This is the third year we haven't been able to deliver water,"
Morper said recently. "And prospects this afternoon are not that great
that we're going to be able to deliver water next year."
Nonetheless, Morper said he hasn't yet seen any decrease in
real estate prices. No longer operating in its own little world, he said,
eastern New Mexico is gaining attention from retirees around the country, many
of whom like the weather and the landscape and don't care if there's water in
the canal. "We're seeing farmland that five years ago was selling for $700
an acre now selling for $1,600 an acre," Morper said. "A majority of
these are out-of-state buyers.
"Even though this drought is really having an effect on
the guy who's sitting out here trying to produce, at this stage it really
hasn't had an effect on the value of his land," Morper said.
While Morper said many large landowners in the area don't
rely on Conchas water to meet their obligations, he said any farmers who are in
debt and trying to rely on their lands to generate cash to pay their bills
could be hurting.
"I just think that New Mexico may be beginning to wake
up to the value of its water," Morper said. "Something that may
concern us more than anything is that when domestic demand gets so great, I'm
concerned about the use that water on agriculture. "It means to me that if agriculture is using 75 to 80
percent of the water, they cannot afford to farm if water is $5,000 an
acre-foot," Morper said.
The increasing pressure on agricultural water rights means
that New Mexico state government has to take steps to quantify how much water
exists in stream systems and get the courts to rule how much water each
individual landowner is entitled to. This so-called adjudication process has
been going on for decades in the state, but so far only about 20 percent of the
state has been covered.
"Such a small percentage of New Mexico is adjudicated,
it's pathetic," Morper said. "I think there needs to be some real
work done on conserving New Mexico's water." Effects everywhere Larry
Perkins sees the effect of the ongoing drought first-hand. A fourth-generation
farmer on family land 15 miles southeast of Tucumcari, Perkins this year was
forced to take an outside job for the first time in decades.
Today, Perkins works as superintendent at the New Mexico
State University Agriculture Science Station in Tucumcari. Now, in addition to
trying to keep his own operation running at home, he's farming for the state –
tending research plots and mending broken water lines for the extra pay he needs
to continue to survive the drought.
"This is definitely the worst I've ever seen,"
Perkins said. "In my particular situation, I've turned my entire farming
operation into more like a cattle farm, a cattle ranch." Yet even with the move to cattle, Perkins
said the drought is hammering his operation. "I have reduced by herd to
one-sixth the size it was two years ago," he said.
"Could you live on one-sixth of your salary and still
pay your mortgages and your bills?"
The drought is affecting all aspects of Tucumcari, Perkins said. Those
who aren't farmers still rely on the agricultural economy through the sale of
feed, fertilizers and supplies.
"I know it's affected almost everybody's business in
town," Perkins said. "Because
the main source of income is the farmers and ranchers in the area. If they're
not making money, we're not buying much." Nonetheless, Perkins said he
believes the people he sees in eastern New Mexico are holding up. "I think that most of the people here
have a good attitude towards it," Perkins said of the drought. "There
is a lot of concern and a lot of worries, but people are pretty sure that the
Lord's going to send us rain and get that lake filled."
To many longtime observers of New Mexico's water management,
much of the state's ongoing water crisis comes down to a lack of political
guts. We don't need new laws or institutions, they say; we simply need to start
using the ones we've got.
William Turner, a water rights broker in Albuquerque, says
that not only has New Mexico failed to manage its limited water supplies, it
has likewise failed to rein in increasing demand from development. Turner, who
was state natural-resources trustee under former Gov. Gary Johnson, says he keeps
newspaper clippings from around the state. In one pile, he says, he has stories
about New Mexico's water crisis. In a
second pile, he has stories about local governments approving new development.
"There's a disconnect statewide between those who are
approving these big subdivisions and those who are charged with providing the
water," Turner said. "It seems like there's no communication."
Around Santa Fe, Turner said, the problem is particularly acute. "I don't
know where it is between the City Council and the County Commission,"
Turner said, "because the county keeps approving the subdivisions, and the
city is responsible for the water. And it's the politicians in the middle who
enjoy campaign contributions from developers."
Developers are licking their chops to develop lands south of
Santa Fe, Turner said. Many developments have been approved. "All those
developers up there are stuck because there's no water," Turner said.
"Some are being promised hookups; others aren't. You've got every big
developer in the state wanting to develop in Santa Fe, and they don't know
where the water's coming from."
Part of the problem is New Mexico's system of water
management.
There's an expression that Em Hall says he used to hear when
his neighbors in Pecos were trying to get a tired old pickup truck up and
running for just one more load of firewood: atroche y moche.
It's hard to find a literal translation for the slang
expression. But if you ask around, terms like "spit and baling wire"
and "half-assed" crop up. The
term means making do, making broken things work and getting by with what you've
got. And it's a way of life in New Mexico. And atroche y moche is what jumps
into Hall's mind when he considers the state of New Mexico's water management:
It's slow, it's old, it looks like it shouldn't work - but it does.
Hall, a professor at The University of New Mexico Law
School, has worked as a lawyer for the New Mexico State Engineer's Office. He's
written extensively about water rights, and he follows the state's twisted
water world carefully.
"The chances of replacing the system wholesale are
nil," Hall said of the structure of New Mexico's tortured water
management. "But the capacity of
this system to sort of adapt in funny ways to new demands has been great. The
Endangered Species Act hasn't finished it off; everybody screamed that it might
have. This is a system that has tripped along pretty well for a long
time."
New Mexico is staggering under unfinished adjudication
lawsuits, some filed decades ago, that seek to determine ownership of the
state's water. While critics often point to the slow pace of these lawsuits as
proof of inefficient water management, Hall says there are reasons why they
take so long.
"It takes so goddamned long in New Mexico because it's
so complicated and the history is so deep," Hall said. "We've been
living in a hydraulic society for 500 years. There are a lot of rights out
there, and a lot of rights originated under 15thcentury Spanish law. "We're
not dealing with a place like Colorado, where irrigation started in 1870, or
Montana, where it started in 1890. (In New Mexico) we're talking 1540."
Indeed, the presence of Indian pueblos across so much of New
Mexico has slowed down the courts. Of course, the pueblo Indians predate the
arrival of everyone else, so they clearly have senior water rights. But the
pueblo lands aren't Indian reservations, so established federal water law that
applies to other tribes elsewhere doesn't necessarily apply here.
So, while other states have long since finished adjudicating
their water and are happily managing their resources, New Mexico is stuck. In
an attempt to salvage some ability to administer the state's water in the
absence of completed adjudications, State Engineer John D'Antonio has proposed
controversial regulations that will allow him to administer water-rights
transfers and, if necessary, to cut off those with junior water rights in times
of shortage until the courts finally rule.
Hall said he expects that D'Antonio, by proposing the
regulations, is buying into a real fight. "There's going to be some great
lawsuits about this. We're in uncharted
territory," Hall said. "I know they're going to say that it's unconstitutional,
violates separation of powers. The state engineer has fairly broad powers,
although they've never been specified."
While Hall says he believes that New Mexico has been good
about restricting people to only using water for certain defined beneficial
uses as the law requires, he said the system doesn't do so well when water
starts to run out in times of drought.
"Once the narrowly defined sum of those beneficial uses
exceeds the supply, we have no idea how to apportion between claimants,"
Hall said. And while the New Mexico Constitution requires the state to cut off
those with junior water rights in times of shortage, Hall says, "We don't
have the guts to make it work."
"It's because the economic value of the rights that are
involved are inversely related to its priority," Hall said. "You're
talking about shutting off cities to keep some alfalfa farmers in Socorro going
– they ain't going to do it.
"Because the cities have the most junior rights, and
the most senior rights are the most inefficient users economically, not
culturally but economically. So you have a legal system that's completely out
of whack with the economic system."
Making water mobile
Steve Harris of Rio Grande Restoration knows the Rio
Grande as well as anyone. In addition to his work with the conservation group,
he's a professional river-runner who takes rafts full of tourists through the
white water. Harris says it was predictable that water-rights owners would
fight the state's proposed water-management regulations.
"Literally no water user in this state wants a
command-and- control water-administration system to get set up in the next 12
months," Harris said. "Particularly not one that gives them less
control than they have now."
Harris said it's clear to him that the state's proposed
regulations are intended to make it easier to move water from agricultural
lands to cities in the state. "It seems like what they're trying to do is
use administrative pressure to get these free markets going," Harris said.
"The fact is, this is to meet our population projections in an economy
that's based on rampant real-estate development."
Turner, the water-rights broker, said he sees the state's
new proposed water management regulations as an attempt by the state to strip
priority dates away from water rights. Turner said D'Antonio is "trying to
get in the position where he can easily satisfy water demand administratively
by allowing water to move back and forth in a river system. As it is, it takes
me six months to transfer a water right" in Santa Fe by going through the
state's transfer process which allows neighboring landowners to appeal.
Paul Bloom, a water-rights lawyer who started his career
with the New Mexico State Engineer's Office in the 1960s, says it's proven fact
that the state's water bureaucracy and its courts system can make the water
rights adjudication process work when they want to. Bloom pointed out that when
the U.S. Supreme Court ordered New Mexico to finish the adjudication of water
rights on the Gila River in the early 1960s, the work was finished in just a
few years.
''In 1964, none of those streams had been adjudicated,"
Bloom said of the Gila system. ''The state was able to get the suits filed,
processed and completed by February of 1968." The Gila case moved so fast, Bloom said, because then-State
Engineer Steve Reynolds made it a top priority and the district judge on the
case, Norman Hodges, was willing to make tough decisions regardless of the
political fall-out.
''There were one or two days in hearings in Silver City
where the judge had to have the bailiff clear the courtroom and tell people to
leave their firearms in their pickup trucks,'' said Bloom, who handled the Gila
case for the state. "We had to do it, so we did it." These days, Bloom said, there's apparently a
reluctance among state officials to press adjudication cases.
"I would say that there are policy and management
reasons," Bloom said of the slow pace of the adjudication lawsuits in New
Mexico. "By and large, it's like playing that hold 'em poker; at some
point, you have to throw all your chips in and you have to take the chance of
winning or losing everything. A lot of people don't want to risk that. When it
comes down to it, a lot of people want to work something out and see if they
can't share the river.''
Chuck DuMars, a prominent Albuquerque water lawyer, is
himself a professor emeritus at UNM law school. Despite the controversy, DuMars
said he sees New Mexico making progress on improving its water rights
adjudication system. He serves on a committee appointed by the state Supreme
Court to look at adjudication cases and make recommendations about how to speed
things up.
"I think that we are making great strides," DuMars
said. "The orders are going out much faster, the offers of judgments. I
feel that, over the next five years, the courts are going to make great
strides." While the adjudication process has been slow, DuMars said it's
important that the state stick with it.
"What I would hate to see is to shift from that
judicial process to some sort of administrative process," DuMars said. And
in order to make the adjudications happen, he said the state has to pony up the
funds.
"The major factors have been funding, the changing of
the lawyers and the inability to have technology for the surveys," DuMars said
of the things that have slowed down the adjudication process. By this fall,
DuMars said he expects the high court will see a proposed order from the
committee suggesting ways to expedite the adjudication lawsuits.
The Supreme Court has already ordered that one judge in each
judicial district serve as a water judge, specially trained to handle water
cases. However, that order didn't include any extra funding. DuMars said that,
when the committee evaluating the water cases comes out with its report, he hopes
to see the state allocate more funding for the adjudication process.
"If these informal administrative rules go into effect,
there will be a huge jump in caseload without any increase in funding, and
that's going to be a problem," DuMars said.
New Mexico and
Colorado have essentially the same water laws and even share a few of the same
rivers. But when it comes to managing their water resources, the two states are
a world apart.
Both New Mexico and Colorado are prior-appropriation states.
That means in times of shortage, the law in both states requires those with the
oldest established water rights to get their full share while those with newer,
junior rights get cut off entirely.
Colorado follows its
water law scrupulously and manages its water down to the drop. But in New
Mexico, water management often appears vapor-locked. In times of shortage,
Colorado actually cuts off those with junior water rights - going as far as
padlocking headgates and locking up offending irrigators if necessary. The New
Mexico State Engineer's Office, on the other hand, routinely sits on requests
from senior water rights owners to do anything to curtail water usage by
juniors.
Steve Vandiver, division engineer for the Colorado Division
of Water Resources in Alamosa, says it's interesting that the two states have
nearly identical water statutes on the books but take such different actions on
the ground.
"They basically have the legal authority,"
Vandiver said of New Mexico water managers. "But there has to be some
political will there as well. To start regulating water rights that haven't
ever been regulated, there's definitely some political fallout from that. It's
a long, slow, arduous process."
For Colorado, the process began more than 100 years ago -
before New Mexico was even a state. "Our first adjudication up here was in
1883," Vandiver said. "So it's a function of our legislature and our
water users and the government up here recognizing way back that we had to have
some system on which to base the delivery of water to water-rights holders in
times of shortage."
That first adjudication, in the San Luis Valley in southern
Colorado, set the stage, and the state continued to adjudicate its water as
development occurred. New Mexico, meanwhile, has yet to complete adjudication
lawsuits for most of the state.
"Early on, it was recognized that we had to do
something, so we adopted the prior-appropriation doctrine, like you,"
Vandiver said.
"We've been administering water rights under that system
since the 1880s, really prior to that. It's a very necessary and critical piece
of the pie as far as water administration is concerned. If there's not enough
water up here, which happens most of the time, then those people who are junior
don't get any," Vandiver said. "We do actively administer water
rights on the stream. Our water rights commissioners go out and physically
adjust headgates, and as long as people are cooperative and do not make changes
to those settings, we leave them alone."
However, Vandiver said that, if landowners take it upon themselves to
fiddle with gates to steal water, his office will do what's necessary to
enforce water-rights priorities, including locking gates or dragging scofflaws
into court to explain themselves to a judge. While New Mexico allows landowners
to punch new domestic wells without regard to their effect on river flows and
neighboring water rights, Vandiver said Colorado doesn't.
Anyone who wants to start using water on their land in
Colorado must either have their own water rights or purchase some from
elsewhere to keep the river system whole.
Perhaps nothing underscores the states' different philosophies on water
administration more than their attention to interstate-compact delivery
requirements. New Mexico and Texas sued Colorado in the late 1960s, charging
that Colorado had failed to deliver water as required under the Rio Grande
Compact. While Colorado never admitted guilt, it entered into a repayment plan
that called for it to pay back nearly 1 million acre-feet of water the
downstream states maintained they had been shorted. Colorado had paid back
nearly half the debt when Elephant Butte Reservoir spilled in the late 1980s,
an occurrence that wiped out Colorado's debt under the arcane terms of the compact.
Even so, the lawsuit seems to have permanently adjusted
Colorado's attitude toward meeting its compact delivery obligations. These
days, Colorado starts off each irrigation season with a precise calculation of
how much water it's obligated to deliver downstream and then proceeds to
deliver exactly that much.
Vandiver said Colorado essentially makes meeting its compact
delivery obligations the top priority each year and only then allocates the
remaining water among private water rights owners. In New Mexico, on the other
hand, cities and irrigation districts that own water call for it to be released
from reservoirs when they want it.
When the federal agencies that manage the reservoirs get the
call, they open the gates and send it downstream. Although the state itself has
grave responsibilities under interstate compacts for delivering water to other
states, New Mexico does not take command of its water resources to make sure
those deliveries occur.
"There is no direct management for compact
deliveries," Dick Kreiner of the U.S. Army Corps of Engineers in
Albuquerque said of New Mexico. "They do the books at the end of the
year." Kreiner emphasized that New Mexico has competent people working on
water management. But, in terms of the state's reservoir system, he said,
"you don't have the institutions in place to manage that water."
Rather than the state taking control of reservoir
operations, Kreiner pointed out that the city of Albuquerque has a contract
with the Corps of Engineers to store its water at Abiquiú Lake. Meanwhile, the
Middle Rio Grande Conservancy District has a separate contract with the U.S.
Bureau of Reclamation to hold its water some 30 miles upstream at El Vado Lake.
"Conceivably, both of those resources could be used to manage deliveries
so that New Mexico didn't deliver more water than it had to Elephant
Butte," Kreiner said. "That's
the worst place in New Mexico to store water because of the evaporation
losses," Kreiner said. "Delivering more water to Elephant Butte than
you absolutely have to is not the most efficient way to manage it."
Kreiner said that New Mexico water managers are diligent and
capable people working hard to make their system work. "One of the reasons
that this hasn't just come completely unraveled is the level of coordination
and cooperation among the parties," Kreiner said. "It's pretty
spectacular. We've had some awfully tough years."
But John D'Antonio, New Mexico state engineer, emphasizes
that the Rio Grande Compact itself constrains the state's flexibility on
reservoir storage. Under the compact, when Elephant Butte Reservoir falls below
400,000 acre-feet - as it is now - New Mexico is barred from storing any water
in post-1929 reservoirs upstream. That means that when water supplies get low,
the state loses the option of storing water in cooler, northern reservoirs.
Texas, which gets water from Elephant Butte, would certainly protest any
proposal to change the Rio Grande Compact to allow upstream storage in such dry
times, D'Antonio said.
Over the last two years, New Mexico bought itself some
breathing space by hammering out a deal with Texas that allowed New Mexico to
store water in upstream reservoirs by releasing a like amount of state water
from Elephant Butte. However, New Mexico has no more water to release, and next
year looks grim for farmers, boaters and others who rely on upstream water
storage.
The New Mexico Interstate Stream Commission has been working
with the Corps of Engineers on studies addressing water supply and management
on the Rio Grande as part of what the agencies say will be a broad, regional
water-planning process.
Nonetheless, Kreiner said he sees tough times ahead for New
Mexico. On the middle Rio Grande in particular, Kreiner said, "there's
this sense that it's only a matter of time before we get in trouble with our
compact deliveries. With the surface
and groundwater, we're beyond the point of sustainability."
Mark Yuska, chief of the reservoir- control branch at the
Corps of Engineers' Albuquerque office, agreed. "If things don't get
better, as far as snowpack particularly, we're going to hit the crunch,"
he said. While New Mexico is trying to purchase land and water rights on the
Pecos River to free up water for its compact delivery obligations on that
river, Kreiner said, "there's nothing in place on the Rio Grande Basin to
deal with those kinds of pressures."
Vandiver, the Colorado official, said he's familiar with New
Mexico's taxpayer-funded purchase plan on the Pecos River. While he was careful not to criticize, he
said it's not the way Colorado does things. "Down there, with the state
buying water to provide water to keep the river whole, it is certainly one way
to do it," Vandiver said. "Up here, the state isn't purchasing water;
the individual water-rights holders who are causing the depletions are
purchasing water, not the state. It's
just a different way of doing business."