Finishing the new book has thrown me into a time warp.
We’re about to hand in a manuscript for a book that traces a century and a half of the evolution of Albuquerque’s relationship with the Rio Grande, leading up to now. But the now of the act of writing (November 2023) is different from the now that will exist when the book first emerges in 2025, and the now in which readers experience it in the years that follow.
This conceptual muddle is crucial for the book. We are trying to describe the process of becoming that made Albuquerque what it is. That process of becoming, we argue at some length, cannot be understood without understanding how we as a community came together to act collectively to manage our relationship with the river that flows through our midst.
But – and this is the crucial thing, because it explains why we are writing this book – the process of becoming is never done. We hope to help inform Albuquerque’s discussion of what happens next.
There’s less water. What do we do? We will never stop negotiating our complex relationship as a community with the Rio Grande.
I spent a delightful afternoon yesterday that stretched well into the evening, listening to a series of enormously consequential discussions of these issues at the monthly meeting of the board of directors of the Middle Rio Grande Conservancy District. One of the district’s senior folks recently pointed out how often, during the most difficult of discussions, they look at me sitting in the audience and see me grinning. Those most difficult discussions are the most fascinating to me.
I found myself leaning forward in my chair frequently, shifting my position to see the faces of the board members and staff as they wrestled with this stuff.
I grinned a lot.
Three things from yesterday’s meeting stood out. All three are things that would have merited a significant newspaper story back in my Albuquerque Journal days. This blog post is not that, but if you’re paying attention to Middle Valley water you should keep an eye out for these three incredibly important developing issues.
1) NEW MEXICO’S RIO GRANDE COMPACT DEBT IS LIKELY TO RISE
The Rio Grande Compact, an agreement among Colorado, New Mexico, and Texas to share the waters of the compact’s eponymous river, has a tricky sliding formula determining how much water each state is allowed to consume (through human use as well as riparian evapotranspiration), and how much it must pass to its downstream neighbor. It’s got some wiggle room – states can run a debt, as long as it doesn’t get too large and they catch up in subsequent years. But the changing hydrology of the Middle Valley has made it increasingly difficult for New Mexico to meet its downstream delivery obligations.
New Mexico is currently 93,000 acre feet in debt because of under deliveries in recent years. The hole’s likely to get a lot deeper this year, thanks to a big spring runoff (which increases New Mexico’s required deliveries) and a lousy monsoon (good summer rains can help make up a deficit – this year they did not). If our debt rises above 200,000 acre feet, bad things happen.
2) EL VADO DAM RECONSTRUCTION IS TAKING A LOT LONGER THAN IT WAS SUPPOSED TO TAKE
El Vado Dam was built in the 1930s to store water for Middle Rio Grande Valley irrigators, allowing storage of spring runoff to stretch the growing season threw summer and into fall. But it’s kinda broken. Contractors working for the US Bureau of Reclamation began work a couple of years ago to fix it, with the expectation that it would take a couple of years. It is now widely understood that it may not be done and in operation again until 2027. Or later.
This would be devastating to the portion of irrigators in the Middle Rio Grande Valley that farm for a living. As our book will deeply argue, it’s critical to understand that this represents a minority of irrigated land in the valley. Much of the farming here is non-commercial, “custom and culture” farming, a supplemental income (or even, for the affluent, a delightful money loser) for people whose livelihood doesn’t depend on it. But for either class of irrigators, a lack of late summer and fall water makes things incredibly hard.
El Vado’s problems have not been publicly announced yet, but all the cool kids are talking about them. Expect something more substantive at December’s MRGCD board meeting.
We could see a substantial expansion of acreage fallowed, with a big chunk of federal money paid to irrigators to forego their water in the next few years. MRGCD has been building the institutional widget to do this for several years, with federal money flowing to irrigators to lay off watering their land for either a partial or full season as part of a federally funded program to generate water to meet Endangered Species Act requirements for our beloved Rio Grande silvery minnow. In 2023, that generated (in accounting terms, be skeptical of the four-digit precision) 3,615 acre feet of water.
For 2024, the MRGCD, working with federal money funneled through the state, will push for a dramatic increase. Price per acre will double, to $400 an acre for a split season (irrigate in spring and fall, but not in summer when demand is highest) and $700 an acre for a full season. It’s a voluntary program, so all depends on how much irrigators want to join in, but I can imagine a lot of people looking at the El Vado shitshow and taking the money.
There was a very confusing board discussion that involved an actual invocation of Roberts Rules of Order by the district’s legal counsel and a vote that I still don’t understand with people who support the program voting “no” and people who oppose it (I think) voting “yes”. If I was still a reporter I would have had to sort all of this out while an editor hovered barking about deadlines, but thankfully it’s just a blog that no one actually reads, written by an old guy in pajamas still working on his morning coffee and breakfast.
The bottom line is the possibility of the compensated fallowing of as much as 8,000 acres next year, ~15-ish percent of all irrigated land. I think. As I said it was a pretty confusing thing, and I’m not done with breakfast.
From email from the Alamosa Citizen (Chris Lopez):
Colorado figures it over-delivered on the Rio Grande Compact this year by 10,000 to 15,000 acre-feet and as such extended the irrigation season for some Valley farmers to Nov. 8. The over delivery on Rio Grande Compact water is another reason why the Rio Grande has so little flow this fall and likely won’t pick up without some natural moisture. “It’s probably not going to happen for any time soon because we are actually over-delivered on our compact obligations,” said Craig Cotten, division engineer in the San Luis Valley for the Colorado Division of Water Resources. “We will have delivered a little bit too much to downstream states.” Cotten made the comments during a taping last week of The Outdoor Citizen podcast hosted by Marty Jones. You can hear his full remarks on the over delivery of Rio Grande Compact water inthis episodeof The Outdoor Citizen.
The Rio Grande is one of the longest rivers in North America, running some 1,900 miles (3,060 kilometers) from the Colorado Rockies southeast to the Gulf of Mexico. It provides fresh water for seven U.S. and Mexican states, and forms the border between Texas and Mexico, where it is known as the Río Bravo del Norte.
The river’s English and Spanish names mean, respectively, “large” and “rough.” But viewed from the Zaragoza International Bridge, which connects the cities of El Paso, Texas, and Ciudad Juárez, Mexico, what was once mighty is now a dry riverbed, lined ominously with barbed wire.
In the U.S., people often think of the Rio Grande mainly as a political border that features in negotiations over immigration, narcotics smuggling and trade. But there’s another crisis on the river that receives far less attention. The river is in decline, suffering from overuse, drought and contentious water rights negotiations.
For nearly 80 years, the U.S. and Mexico have managed and distributed water from the Colorado River and the Lower Rio Grande – from Fort Quitman, Texas, to the Gulf of Mexico – under the 1944 Water Treaty, signed by presidents Franklin D. Roosevelt and Manuel Avila Camacho. The Colorado River was the central focus of treaty negotiations because officials believed the Colorado basin would have more economic activity and population growth, so it would need more water. In fact, however, the Rio Grande basin has also seen significant growth.
For the Rio Grande, the treaty allocates specific shares of water to the U.S. and Mexico from both the river’s main stem and its tributaries in Texas and Mexico. Delivery of water from six Mexican tributaries has become the source of contention. One-third of this flow is allocated to the U.S., and must total some 76 million cubic feet (2.2 million cubic meters) over each five-year period.
The treaty allows Mexico to roll any accrued deficits at the end of a five-year cycle over to the next cycle. Deficits can only be rolled over once, and they must be made up along with the required deliveries for the following five-year period. https://www.youtube.com/embed/Ym6m2rZeXPw?wmode=transparent&start=0 Farmers as far north as Colorado rely on water from the Rio Grande for irrigation.
These five-year periods, called cycles, are numbered. Cycles 25 (1992-1997) and 26 (1997-2002) were the first time that two consecutive cycles ended in deficit. Like the Colorado River, the Rio Grande has become over-allocated: The 1944 treaty promises users more water than there is in the river. The main causes are persistent drought and increased water demand on both sides of the border.
Much of this demand was generated by the 1992 North American Free Trade Agreement, which eliminated most border tariffs between Canada, the U.S. and Mexico. From 1993 through 2007, agricultural imports and exports between the U.S. and Mexico quadrupled, and there was extensive expansion of maquiladoras – assembly plants along the border. This growth increased water demand.
Ultimately, Mexico delivered more than the required amount for Cycle 27 (2002-2007), plus its incurred deficit from cycles 25 and 26, by transferring water from its reservoirs. This outcome appeased Texas users but left Mexico vulnerable. Since then, Mexico has continued to struggle to meet its treaty responsibilities and has experienced chronic water shortages.
In 2020, a confrontation erupted in the state of Chihuahua between the Mexican National Guard and farmers who believed delivery to Texas of water from the Rio Conchos – one of the six tributaries regulated under the 1944 treaty – threatened their survival. In 2022, people lined up at water distribution sites in the Mexican city of Monterrey, where the population had doubled since 1990. As of 2023, halfway through Cycle 36, Mexico has only delivered some 25% of its targeted amount.
It also pits the needs of different sectors against one another. Agriculture is the dominant water consumer in the region, followed by residential use. When there is a drought, however, the treaty prioritizes residential water use over agriculture.
The Rio Grande is affected by nearly the same hydroclimate conditions as the Colorado River, which flows mainly through the southwest U.S. but ends in Mexico. However, drought and water shortages in the Colorado River basin receive much more public attention than the same problems on the Rio Grande. U.S. media outlets cover the Rio Grande almost exclusively when it figures in stories about immigration and river crossings, such as Texas Gov. Greg Abbott’s 2023 decision to install floating barriers in the river at widely used crossing points.
The compact that governs use of Colorado River water has widely recognized flaws: The agreement is 100 years old, allocates more rights to water than the river holds, and completely excludes Native American tribes. However, negotiations over the Colorado between compact states and the U.S. and Mexico are much more focused than decision-making about Rio Grande water, which has to compete with many other bilateral issues.
Adapting to the future
As we see it, the 1944 water treaty is inadequate to solve the complex social, economic, hydrological and political challenges that exist today in the Rio Grande basin. We believe it needs revision to reflect modern conditions.
This can be done through the minute process, which permits Mexico and the U.S. to adopt legally binding amendments without having to renegotiate the entire agreement. The two countries have already used this process to update the treaty as it pertains to the Colorado River in 2012 and again in 2017.
These steps allowed the U.S. to adjust its deliveries of Colorado River water to Mexico based on water levels in Lake Mead, the Colorado’s largest reservoir, in ways that proportionally distributed drought impacts between the two countries. In the Rio Grande basin, Mexico does not have similar flexibility.
The U.S. also has the ability to proportionally reduce deliveries under a separate 1906 agreement that outlines water delivery from El Paso to Ciudad Juarez. In 2013, for example, Mexico received only 6% of the water it was due under the 1906 Convention.
Enabling Mexico to proportionally reduce Rio Grande deliveries according to drought conditions would distribute drought and climate change impacts more fairly between both countries. As we see it, this kind of cooperation would deliver human, ecological and political benefits in a complex and contentious region.
The federal government will fight the 11th hour settlement that came down last year, and will stretch into 2024 at least.
Whether the water is low or high, the Supreme Court fight over Rio Grande water stretches on.
The latest iteration of the legal fights that span decades, is the Texas claim before the U.S. Supreme Court that New Mexico groundwater pumping below Elephant Butte Reservoir shorts the downstream state its rights to the river’s water.
This would be a violation of the 1938 Rio Grande Compact, which splits the water between Colorado, New Mexico and Texas.
The federal government officially laid out its objections to the special master’s recommendation that the U.S. Supreme Court adopt a compromise to end the lawsuit over the Rio Grande’s water between Texas and New Mexico.
In a 96-page document, Solicitor General Elizabeth Prelogar and other Department of Justice attorneys lay out three legal arguments arguing why the high court should reject the deal.
First and foremost, they argue, settlement is impossible without the federal government’s consent.
A settlement requires consent from each party, and the agreement adds a “host of obligations,” on the federal operation of the Rio Grande Project, which delivers water in a series of canals and ditches to two regional irrigation districts and to Mexico.
Finally, the federal government argues the settlement violates the compact by moving the location of water deliveries, and fails to recognize a “1938 baseline,” of minimal groundwater pumping.
The proposed settlement uses a mathematical model to determine splitting the water, based on drought conditions from 1951 until 1972, when drought and development pushed pumping to increase significantly. Much of the region’s agriculture and its entire residential use is pumped from groundwater.
The federal government argues using the model violates the Compact.
“But the baseline on which the Compact was predicated was the baseline that existed when the Compact was signed — not decades later, after groundwater pumping in New Mexico had greatly increased and drawn water away from the Project,” the federal government wrote.
TheElephant Butte Irrigation District and El Paso County Water Improvement District No. 1 supported the federal government’s position in legal briefs of their own.
They agreed that the state compacts have no authority over the operation of the Rio Grande Project.
The Supreme Court has accepted the federal government’s arguments over a special master’s recommendation in this case before. In 2018, justices unanimously admitted the Department of Justice as a party into the case.
Additional responses and replies from the party will be collected into 2024, and there’s no expectation of scheduling a hearing with the Supreme Court until then.
The clerk of the Supreme Court granted an extension for parties to submit arguments against a settlement proposal in the decade-long lawsuit over Rio Grande water.
U.S. 8th Circuit Judge Michael Melloy – overseeing the case as a special master – gave the nod in early July to a plan proposed jointly by attorneys from New Mexico, Texas and Colorado to settle the dispute.
The federal government argued for Melloy to toss the settlement, saying that issues about the administration of the terms would violate their status as a party to the lawsuit and would impose new burdens on federal agencies.
Melloy’s 123-page report recommended the Supreme Court accept the lawsuit over the U.S. Department of Justice’s objections.
In a Sept. 5 letter to the court, Solicitor General Elizabeth Prelogar requested the date for arguments taking exception to the special master’s report to be pushed back to Oct. 6. Then other parties have a chance to reply in December, with one final round of arguments in January.
All parties agreed with the schedule changes according to the letter.
What happens next depends on the high’s court’s opinion of any objections to the special master’s report – which would most likely come after all arguments are filed in early January.
The long history and new settlement
This leg of the dispute started in 2013 when Texas sued New Mexico in the U.S. Supreme Court, in the case officially called Original No. 141 Texas v. New Mexico and Colorado . Texas alleged groundwater pumping from farming and other uses below Elephant Butte Reservoir shorted Texas of its fair share of Rio Grande water.
The river was split by the 1938 Rio Grande Compact signed by Colorado, New Mexico and Texas.
Texas’ lawsuit was an escalation of decades of lawsuits in different layer of court, which intensified as the megadrought’s grasp on New Mexico’s water supplies has intensified in the last 30 years.
In 2019, the U.S. Supreme Court allowed the federal government to join as a party. The federal government’s argument’s mirrored Texas’ claims, saying New Mexico’s pumping threatened a U.S. treaty with Mexico and contracts with irrigation districts in southern New Mexico and far west Texas.
In 2022, after pivoting between settlement talks and heading back to trial, the state’s presented an eleventh-hour settlement proposal, which laid out how the Rio Grande would be split below Elephant Butte Dam. New Mexico would receive 57% of water, and Texas would receive 43% (all excluding Mexico’s share). A new index based off of the drought period from 1951-1978 would factor in groundwater pumping. The agreement lays out penalties if deliveries are above or below the agreed amount.
It also would require establishing the El Paso Gage, just past the Texas-New Mexico state line.
A few months ago a reader and Western water expert clued me in on recent developments related to the Low Flow Conveyance Channel. Had she told me this in person I probably would have blushed and fumbled around for an intelligent response before finally resigning and asking:
Because, well, I had no friggin’ idea what she was talking about.
And yet, I should have known, because the Low Flow Conveyance Channel — or LFCC — is a classic example of how folks in the West try to engineer their way out of the region’s aridity and, ultimately, fail.
The LFCC might be considered the infrastructure love-child from the coupling of the Rio Grande Compact and, well, silt — a lot of it. The compact, signed in 1938, divided the waters of the Rio Grande between Colorado, New Mexico, and Texas. Whereas the Colorado River Compact allocates a set amount of water to each group of states, the Rio Grande Compact uses a more complicated distribution formula based on flows at specific river gages.
Among other things, it requires New Mexico to deliver a certain percentage of the Rio Grande’s flow to Elephant Butte Reservoir, where it is stored for Texas. This is strange, I know, because the reservoir is in New Mexico, not Texas, and not even that close to the latter state. But these water compacts can be like that. New Mexico can accrue up to 200,000 acre feet of water debt to Texas and still be in compact compliance, giving the upstreamers some breathing room during dry years.
The Compact went into effect in 1939, a dry year on the Rio Grande; 1940 was similarly meagre, with a peak streamflow under 3,000 cfs at the Otowi Bridge gage. But the Rio flooded, big time, in 1941 and 1942, peaking above 22,000 cfs at Otowi. That kind of big water tends to pick up big silt — especially from the Rio Puerco, a Rio Grande tributary — and when the river started losing energy at the slackwater above Elephant Butte Reservoir, the sediment fell out of the flow, accumulating on the river bed. If you’ve ever rafted the lower San Juan River, you’ve experienced a similarly silty phenomenon below Slickhorn Canyon.
The silt filled in and plugged the existing river channel, sending the water out across a much wider, shallower plain, and forced the railroad to raise its tracks repeatedly along a section that crosses the river. During ensuing low-water years, the river was so spread out that most of it evaporated or seeped into the silt or was sucked up by encroaching tamarisk before reaching the reservoir. Before long, New Mexico was deep in water-debt to Texas, and in 1951 owed the downstream state 325,000 acre-feet, putting New Mexico out of compliance with the compact.
This is where the engineers come in. In order to get the river to Texas they would divert it around the river bed, kind of like providing fish passage around dams for salmon. And they would do this by building a deep, narrow, 75-mile long ditch from San Acacia to the reservoir that would carry water and silt more efficiently and result in less evaporation. It would be called the Low Flow Conveyance Channel because it would convey the river during low flow. Construction began in 1951 and the LFCC went into operation in 1959.
For the next two decades, the LFCC did what it was supposed to do: Carry up to 2,000 cfs of the river’s flow around the river, itself, and deposit it in Elephant Butte Reservoir, where it was stored for Texas. New Mexico’s substantial water debt slowly shrank, finally disappearing in 1972. Despite the channel’s name, during this time it carried most of the river’s water during high flows and low, thus depriving the riparian zone of its life-giving river and altering the ecosystem.
The 1980s were notoriously wet years for most of the Southwest and somewhat perilous times for the infrastructure built to help states comply with water compacts. Glen Canyon Dam, constructed primarily to allow Upper Colorado River Basin states to deliver the obligated amount of water to the Lower Basin, was pushed to the brink by massive snowmelt in 1983 and, to a lesser extent, in 1984.
The Rio Grande ran large during those years, too. Elephant Butte Reservoir filled up completely, inundating the lower reaches of the LFCC. Silt happens, it turns out. When the reservoir levels declined several years later, the last 15 miles of the channel had essentially disappeared under a thick layer of sediment. No longer able to carry water to the reservoir, the LFCC was shut down in 1985 and hasn’t been used to convey the Rio Grande since.
But the first 60 miles or so of the LFCC remains, running alongside the Rio Grande like its more linear twin, separated by an earthen levee built to keep a flooding river from inundating and wrecking the canal. Bizarrely, the river channel is about 10 feet or more above the canal, due to all of that sedimentation over the years, making flooding more likely. And that means more engineering, and maintenance dollars, are required to protect the engineered canal. In a weird Anthropocene-esque twist, the canal now serves an environmental purpose: It catches and conveys irrigation runoff and groundwater to the Bosque del Apache National Wildlife Refuge, keeping the wetlands there wet.
As Rio Grande flows continue to decline and New Mexico piles up water debts to Texas, the possibility of reopening the LFCC grows. The Middle Rio Grande Conservancy District, which acquired the northern end of the channel from the feds, has talked about using it again to get more river water downstream to Texas (thereby freeing up more Rio Grande water for New Mexico irrigators). And the state engineer’s office asked lawmakers to budget $30 million for the LFCC.
But it would take far more than that to clean out, rehabilitate, and extend the lower section so it could reach the shrinking reservoir. And even then, it could only be used on a limited basis, since diverting the entire flow of the river would run up against endangered species laws and other environmental concerns. Elizabeth Miller wrote a strong piece for NM In Depth about efforts to reopen the channel and environmentalists’ concerns. It’s well worth a read.
For now, however, the Low Flow Conveyance Channel will stand as a reminder that while engineering our way out of a short-term drought may be somewhat effective, it usually doesn’t work in the long-term. To survive ongoing aridification we must dispense with dams and canals and rethink our relationship to this landscape and overhaul the way we use diminishing amounts of water.
We have a chance this year to watch a fascinating intersection of climate-change driven changes in the Rio Grande through Albuquerque as filtered through both physical infrastructure and what we call the “institutional hydrograph”.
Dust on snow is likely to accelerate Rio Grande headwaters snowmelt, meaning all that stored water comes off earlier. With nowhere to store it (see below, it’s an issue of both rules and physical infrastructure problems), we’ll be operating this year in a run-of-the-river situation on the middle Rio Grande through Albuquerque. Even though there’s still a lot of snow right now, once it comes off we’ll be down to base flow on the Rio Grande. Absent good summer rains, the river could dry through Albuquerque again this year.
In the “before times” (before the creation of the Middle Rio Grande Conservancy District in the early 20th century, which led to the construction of El Vado Dam) communities in New Mexico’s Middle Rio Grande depended on the run of the river. When the runoff dwindled in the summer, they couldn’t irrigate. (This is part of the reasoning behind our argument in the new book that claims that there once were ~125,000 acres irrigated in the Middle Valley are not credible.) Construction of El Vado allowed communities to do the classic “dams move water in time” thing – store some of the big spring peak and stretch it out through summer.
El Vado is busted, though, unusable while it undergoes repairs. As Dani Prokop reported last month, the repairs are dragging:
That means no storage (other than a little bit in Abiquiu Reservoir for Native American communities) for irrigators, which means that once the snow is melted, the river will dwindle.
THE INSTITUTIONAL PLUMBING: ARTICLE VI
Even if El Vado wasn’t broken, though, we’d sorta be in the same bind thanks to Article VI of the Rio Grande compact, which says….
New Mexico’s compact debt to Texas – the net we’ve underdelivered in recent years – is 93,000 acre feet. So even if El Vado wasn’t broken, any water we were able to store up to 93,000 acre feet would have to stay there. (This is why the Middle Rio Grande Conservancy District has reduced its diversions this year to 80 percent of what the district otherwise be sending down its canals – to get more of that water to Elephant Butte Reservoir, to try to reduce compact debt, so they can usefully store water once El Vado is fixed. This is a whole other blog post, because the discourse around this has been fascinating as I do the “embedded writer” thing at MRGCD for my book research.)
HYDROLOGY IN THE 21ST CENTURY: UNDERSTANDING THE RULES
I was down at the Rio Grande yesterday morning to record an interview about western water stuff with a crew from Italian public television. (The were neat! It was fun!) A bosque walker asked what we were doing and Luca, the TV guy, explained that they were interviewing the professor (pointing to me). The woman asked if I was a hydrologist. No, I replied, I do water policy.
That’s the thing. To understand the flow in the river we were standing next to, you need to understand the physical science – climate, hydrology, and such. But then, crucially, you needs to think about how the actual wet water is filter through the system’s human-built physical plumbing, which then requires understanding who it all is filtered through the rules.
A NOTE ON SOURCES, METHODS, AND BUSINESS MODELS
At this point in a post like this, I often drop in a thanks to my supporters, who make this work possible, including the Utton Center and Inkstain’s contributors. But I’d also point you to the linked information sources above – Downtown Albuquerque News is subscription-supported and one of my favorite local news reads, and Source NM (Dani Prokop’s employer – she’s doing great water stuff, invaluable to the community). Information is a public good, and as my economist friends like to point out, because of the free rider problem, public goods are under-provided.
From the Alamosa Citizen “Monday Briefing” newsletter:
Speaking of the Rio Grande, Texas and New Mexico, and to a degree Colorado, have been arguing since 2013 about water from the Rio Grande that Texas says New Mexico shorts it. Now the case has a proposed settlement. The biggest change the two sides have agreed on is that the gage station in El Paso, not Elephant Butte Reservoir in New Mexico, would be where Texas’ share of the Rio Grande would be measured. The agreement still needs a sign off from the U.S. Supreme Court.
A settlement draft is on the table to end nearly a decade of litigation over Rio Grande water before the Supreme Court — but not everyone is on board.
On Tuesday, Judge Michael Melloy — who is overseeing the case as the special master — said he would hear arguments on a draft settlement presented by Colorado, New Mexico and Texas, over the objections of the federal government and at least two irrigation districts.
The three states called the draft settlement a “carve-out decree” that resolves all issues of Rio Grande water-sharing between the states, while leaving open discussions of “intrastate” water management in New Mexico. Those discussions would involve disagreements over management of federal irrigation canals and dams, said Jeff Wechsler, the lead attorney for New Mexico.
“The settlement we believe fairly ensures that both Texas and New Mexico receive their fair share of water,” Wechsler said, adding that the state was open to resolving issues with the federal government.
Attorneys for the federal government disagreed that any issues could be “carved out,” and objected to the states’ proposed settlement, the terms of which remain confidential.
“Without the United States agreeing to this settlement, this compact dispute can’t end,” said Fred Liu, assistant to the Department of Justice’s solicitor general.
Texas sued New Mexico in the Supreme Court in 2014, arguing that groundwater pumping in southern New Mexico denied Texas its fair share of river water laid out by the 1938 Rio Grande Compact. In 2018, the high court allowed the federal government to join the case. The federal government has argued that New Mexico’s groundwater pumping threatens a water-sharing treaty with Mexico and arrangements with El Paso County Water Improvement District No. 1 and Elephant Butte Irrigation District.
Attorneys representing the irrigation districts sided with the feds Tuesday in opposing the states’ proposed settlement.
“This is a settlement over the objection of three major participating entities, all who run the (Rio Grande) Project and all who will be responsible for implementing this settlement over our objection, over our rights,” said Samantha Barncastle, who represents Elephant Butte Irrigation District. The Rio Grande Project is the series of federal dams and canals that distributes water and hydroelectric power to communities along the Texas-New Mexico state line.
Barncastle asked Melloy to send all of the parties back to the negotiating table.
Maria O’Brien, the attorney for El Paso County Water Improvement District No. 1, called the draft agreement “not workable.” She charged the states with making offers they could not actually keep.
Melloy on Tuesday called off the Jan. 17 trial date he set last month after the parties failed to reach an agreement after nearly a year of negotiations. He scheduled a Jan. 24 briefing to determine the legal issues surrounding the proposed settlement.
The judge encouraged the parties to continue negotiations in the months ahead of the briefing.
Liu pushed back, saying the federal government’s team did not have the resources to split between negotiating a new settlement, and responding to the states’ draft settlement.
Melloy responded that it was the federal government who had pushed for continuing to negotiate the case in May when the court inquired about scheduling the pending second half of the trial.
“Don’t start down that ‘poor old United States of America. We’re too busy to talk about settlement, and we don’t have the resources and we’re stretched too thin.’ I’m not buying that argument,” Melloy said, clarifying that he was not directing the parties to continue settlement discussions.
“I’m not directing you to do anything, and you can do whatever you want.”
Albuquerque, New Mexico — In late June, the mornings start out at 80 degrees but temperatures quickly soar past 100. Everywhere fields are brown and the high desert bakes in glaring sunlight. But there is one long, narrow corridor of green here: the Rio Grande.
Jason Casuga, CEO of the Middle Rio Grande Water Conservancy District, and Anne Marken, water operations manager, have been watching the river’s water gauges around the clock for days, knowing that entire stream segments below Albuquerque may go dry at any time. If rains come over the weekend, everyone will relax, at least for a while.
If that moisture doesn’t come, Casuga and Marken must move quickly to release to these dry stream segments whatever meager water they can squeeze from their drought-strapped system, giving the U.S. Bureau of Reclamation time to save as many endangered silvery minnow as they can from almost certain death.
“We only have so much time to start the drying operation,” Casuga said, referring to a practice where his district shifts water in its system so that Reclamation can rescue the fish before the stream goes completely dry and leaves them stranded to suffocate.
“If we don’t do it, you might see 30 miles of the entire river go dry. It’s stressful. We’ve been doing this controlled hopscotching for weeks now.”
The Middle Rio Grande district, created in 1925, is responsible for delivering waters to farmers as well as helping the state meet its obligations to deliver water to Texas under the 1938 Rio Grande Compact. It coordinates management activity with Reclamation and the U.S. Army Corps of engineers on a river system that includes five major reservoirs and hundreds of miles of canals.
A crippled river
The district’s liquid juggling act is becoming increasingly common, and it is painful for everyone to watch, from the 19 tribes and six pueblos whose homes have lined its banks for thousands of years, to the 6 million people and 200,000 acres of irrigated lands that rely on the river across the three-state river basin.
“The worry is heavy,” said Glenn Tenorio, a tribal member of the Santa Ana Pueblo north of Albuquerque, who also serves as the pueblo’s water resources manager.
Under the terms of the 1938 Rio Grande Compact, Colorado, New Mexico and Texas share the river’s flows before it reaches Mexico. They have watched drought cripple the river, with flows dropping by 35% over the last 20 years.
But unlike other Western states, in New Mexico water users share both supplies and shortages, and that’s a lesson other states might benefit from, experts say. In most Western states where the prior appropriation system, known as first-in-time, first-in-right exists, water users with younger, more junior water rights are routinely cut off in times of shortage, creating expensive, conflict-ridden water management scenarios.
Water scarcity grows
Still, in response to growing water scarcity, Texas sued New Mexico in 2013, alleging that groundwater pumping in the southern part of New Mexico was harming its own share of water in the river. After being heard briefly before a special master for the U.S. Supreme Court last year, the three states—Colorado is also named in the case—agreed to pause the lawsuit while they conduct mediation talks.
Want more background on the Rio Grande Compact?
Check out this fact sheet
Whether the talks will succeed isn’t clear yet. In addition to the groundwater dispute, New Mexico owes Texas roughly 125,000 acre-feet of surface water from the river and, under the terms of the compact, cannot store any water in its reservoirs until Texas is repaid.
But there is some hope emerging, as Colorado embarks on a $30 million land fallowing program to reduce its Rio Grande water use and as New Mexico seeks new federal rules that will allow it to store more water and re-operate its federal reservoirs.
Page Pegram helps oversee Rio Grande river issues for New Mexico’s Office of the State Engineer. Unlike Colorado, New Mexico has never had the resources to quantify its various water users’ share of the river. Until now, the state has survived on healthy snowpacks and summer rains.
Though the drought has lasted more than 20 years, in the last five years, Pegram has seen the system deteriorate significantly.
“We’re seeing a fundamental change in water availability,” she said. “Suddenly, everything is different. Temperatures are higher, evaporation is higher, and soil moisture is lower. It’s new enough that we can’t pinpoint exactly what’s happening and we don’t have time to study the issue. It’s already happened.”
In the beginning
The Rio Grande has its genesis in the lush high mountain tundra above Creede, Colo., flowing down through Monte Vista and Alamosa, making its way along Highway 287, crossing the Colorado state line as it flows toward Santa Fe and Albuquerque, then dropping down to the tiny town of Truth and Consequences before it hits the Texas state line. At that point it travels through El Paso and forms the border between Texas and Mexico until it hits the Gulf of Mexico.
It is in the headwaters region in Creede where the majority of its flows originate. And while the hay meadows outside Creede are lush, and the streams cold and full, water has become so scarce even here that if homeowners want to drill a water well, they have to buy water rights from elsewhere to ensure those farther downstream on the river have adequate supplies.
Zeke Ward has lived in Creede for some 40 years, and has served on citizen advisory boards that oversee the river, water quality, and mine residue cleanup efforts.
He said the headwaters area has largely been protected from the most severe aspects of the mega-drought gripping the Rio Grande Basin and much of the American West because there are few people here and 80% of the land is owned by the U.S. Forest Service.
Still, he says, the river is vital to the region’s small tourist economy. “We don’t have a ski area,” he said. “So we have to make a living in 100 days, and that’s not easy.”
Follow the river below Creede and soon you enter the San Luis Valley, where irrigated agriculture dates back at least to the 1500s and where the combination of drought and overpumping have sapped an expansive, delicate series of aquifers. So much water has been lost that the state has issued warnings that it will begin shutting wells down if the aquifer, which is fed from the Rio Grande and its tributaries, is not restored within 10 years.
Craig Cotten is the top Colorado regulator on the Rio Grande and has overseen state and community efforts to make sure Colorado can deliver enough water to fulfill its legal obligations to New Mexico and Texas.
To do so, Cotten routinely cuts water supplies to growers, based on where they fall in the valley’s system of water rights. Right now, Colorado is meeting its compact obligations, but the cost to the valley is high and the cost of failure higher still.
“The farmers are struggling with reaching sustainability,” Cotten said. “If they don’t get there, wells will be shut down.”
But Cotten said he is cautiously optimistic that the Rio Grande can be brought back to health as the climate continues to dry out, in part because there are new tools to manage its lower flows more precisely, including sophisticated airborne measuring systems that show with greater accuracy how much snow has fallen in remote areas and how much water that snow contains.
Knowing more precisely how much water is in the system means the state can capture more when flows are higher, and see more accurately when streamflows will drop. Previously, snow-water estimates have varied widely, miscalculating by as much as 70% or more how much water is in a given mountain region.
In addition, this year Colorado lawmakers approved $30 million to begin a program that will pay San Luis Valley farmers to permanently fallow their lands, something that will relieve stress on the aquifer and the Rio Grande and which could stave off a mass well shutdown.
Plenty to learn
Cleave Simpson manages the Rio Grande Water Conservation District in Alamosa and is also a Colorado state senator.
He believes that the work on the upper Rio Grande holds important lessons for the three states sharing its water and others in the American West.
The people of the Rio Grande Basin have been living with whatever the river can produce for years now, and effectively sharing in any shortages. In addition, though the San Luis Valley aquifers are deteriorating, the farmers in the region have taxed themselves and used some $70 million from those tax revenues to fallow land, something that more and more experts agree will need to be done everywhere, including in the crisis-ridden Colorado River Basin.
“You don’t have very far to look to see your future on the Colorado River,” Simpson said. “Just look at the Rio Grande.”
Farmers in the San Luis Valley, including Simpson, are also testing new crops, such as quinoa and industrial hemp, which use less water than potatoes, a longstanding local mainstay.
“I don’t think I can keep doing what our family has been doing for four generations,” Simpson said. “I raise alfalfa because my dad and my grandpa did. But now I am raising 50 acres of industrial hemp for fiber … it certainly uses less water than my alfalfa crop.”
The work in the San Luis Valley, including the new $30 million paid fallowing program, is a major step toward bringing the Rio Grande Basin back into balance.
And while “fallowing” is a term somewhat new to the water world, it is a management practice some of the oldest users of the river, its tribes, have practiced for millennia.
Tenorio’s family has lived in Santa Ana Pueblo for thousands of years. He said tribal members have learned to balance their needs with whatever the river provides. These days that’s not easy, but he said they focus on the future, to ensure their communities can grow and that their irrigated lands continue to produce the corn, melons, grains, beans and alfalfa that they’ve raised as long as anyone can remember.
“We only can do with what we’re given from Mother Nature,” Tenorio said.
Like other tribes in New Mexico, the Santa Ana Pueblo’s water rights have never been quantified, but because they are so old, they get their water first based on how much is available.
Looking ahead, Tenorio is hopeful that better coordinated use of New Mexico’s few reservoirs, as well as more efficient irrigation systems, will allow everyone to adapt to the drier environment.
“We pray every day for our farmers and everyone who lives on the river,” he said.
Unlocking manmade infrastructure
Casuga, of the Middle Rio Grande Conservancy District, describes himself as the CEO of bad news. But he said he has some hope that the river can be better managed.
If new rules to operate the federal reservoirs are eventually approved, he says New Mexico could easily meet its water obligations to Texas. An effort is now underway in Washington, D.C., to make that happen.
“This river is highly developed from a human standpoint,” Casuga said. “We as men impact the river so we have to unlock this manmade infrastructure to help it.”
Until then though, the day-to-day reality of operating the river remains complex. In June, when the temperatures were soaring, the rain did come, but it offered only a brief respite for the Rio Grande.
This week, as the searing heat returned, the river began drying out, forcing Casuga and Marken to launch their elaborate hopscotch game again.
Jerd Smith is editor of Fresh Water News. She can be reached at 720-398-6474, via email at email@example.com or @jerd_smith.
Farmers and ranchers across the San Luis Valley face a deadline: Their underground water source is drying up from a combination of overuse and a decades-long drought driven by climate change. To restore a balance of supply and demand, farmers and ranchers across the valley need to drastically cut how much water they pump out of the ground, according to the Colorado Division of Water Resources. If they don’t, the state has threatened to step in and shut off hundreds of wells, which local water managers say would devastate the valley’s agriculture-driven economy…
Sarah Parmar, the director of conservation with Colorado Open Lands, a nonprofit that works to protect land from development, looks down at the brittle ground and recounts her first visit to this farm last summer.
“The farmer had a mix of peas and oats that he was growing, and they were up to his waist,” Parmar said. “It’s definitely a very productive farm.”
No food grows here now. The farmer has stopped watering these 1,800 acres. Instead, he’s working with Parmar on a deal to leave that water alone to save the area’s shrinking groundwater supply and keep other farms in operation. The farmer plans to sign a contract with Parmar to permanently end the use of his water rights to grow food here, and that rule would apply to any future owner of the property. Parmar calls the agreement a groundwater conservation easement — and said it could be the first of its kind in the country…
Once the agreement is signed, the farmer plans to sell the land to the Rio Grande Water Conservation District, which will work to revegetate the acres with native plants.
The bill creates the groundwater compact compliance and sustainability fund to help finance groundwater use reduction efforts in the Rio Grande River Basin and the Republican River Basin, including buying and retiring irrigation wells and irrigated acreage.
The Colorado Water Conservation Board administers the fund and can make expenditures based on recommendations from the board of directors of the Rio Grande Water Conservation District or the Republican River Water Conservation District. A conservation district’s recommendations must first be approved by the state engineer…
Clearly referencing the water development investment group Renewable Water Resources (RWR), Donovan wanted to know how to explain a group of people wanting to export water from the valley when it is clear water scarcity is already an issue. Robbins, who was testifying at the time, responded that it was something they “were trying to understand themselves” but said that the Rio Grande Water Conservation District is united in their resolve to fight the efforts with all they have.
Referencing the RWR proposal, Donovan then commented that being given money to build a senior citizen center or for law enforcement won’t help much if there are no senior citizens or communities left. She then commented that the General Assembly is receiving the message that the group “needs to look for water somewhere else.”
Click the link to read an article on The Alamosa News (Priscilla Waggoner). Here’s an excerpt:
Senator Cleave Simpson’s bill “Groundwater Compliance Compact Fund” passed the Senate Agriculture and Natural Resources Committee by unanimous vote on [January 25, 2022].
If the bi-partisan, bi-cameral bill ultimately passes both the Senate and the House, SB22-028 will create a groundwater compliance and sustainability fund eligible to receive allocated funding to help both the San Luis Valley and the Republican River Basin in crucial efforts to achieve sustainability in valley aquifers and compact compliance, respectively…
Long before any other basins were addressing sustainability in managing groundwater, growers in the San Luis Valley were looking ahead and taking steps to reduce groundwater usage. In Subdistrict No. 1 alone, more than $70 million has been collected from growers and redistributed to growers in a myriad of ways including, but not limited to, the purchase of water rights and well permits. But the challenge remains.
The language in Simpson’s bill describes the current situation best. “Despite the conservation districts’ and the state’s diligent efforts to implement strategies to reduce groundwater use, including the creation of six groundwater management subdistricts in the Rio Grande River Basin and the use of various federal, state and local funding sources to incentivize the purchase and retirement of irrigated acreage, extensive groundwater use in the Rio Grande and Republican River Basins continues to threaten aquifer sustainability, senior water rights and compact compliance.”
The Treasury Department has ruled that projects related to water conservation qualify for expenditure of American Rescue Plan Act (ARPA) funding. In collaboration with the Colorado Water Conservation Board and the State Engineer, Senator Simpson developed a plan that would request allocation of $50 to $80 million for the purpose of supporting both the Republican River Basin and the Rio Grande River Basin in purchasing acreage to put out of production – all toward the end of reducing groundwater usage through, among other things, retiring irrigation wells and irrigated aces and ultimate compliance of requirements established either through compacts or state statutes that carry heavy consequences should groundwater usage not be reduced.
However, SB-028 is just the first step in this process. In order for $80 million to be allocated to the Groundwater Compact Compliance Fund, the fund itself must first be created by the legislature. And that is what Senator Simpson’s bill would accomplish.
Assuming SB22-038 passes and the fund is created, the next step will be to write the bill requesting the $80 million dollar allocation to the fund.
WHILE Colorado remains largely an observer in the ongoing federal court case over the Rio Grande Compact, the issues that could increase its involvement have become clearer since Texas filed its initial complaint eight years ago.
Texas originally made no claims against Colorado as its arguments focused on New Mexico’s delivery obligations and the use of groundwater below Elephant Butte Reservoir. Colorado was named a party to the initial complaint simply because it is a signatory to the 1938 compact. But the state’s role in the proceedings could change, depending on whether the case impacts Colorado’s ability to manage Platoro Reservoir, the Upper Rio Grande Basin’s largest post-compact reservoir, and the debits the state is allowed to accrue under the compact. Likewise, court decisions might change how federal water compacts are interpreted, which could also spur greater involvement by Colorado.
In August, Special Master Michael J. Melloy ordered Texas to file a supplemental complaint with the U.S. Supreme Court because it raised issues distinct from the original complaint and had the potential to greatly expand the scope of the lawsuit. That supplemental complaint claimed, among other issues, that New Mexico violated the compact by not keeping a pool of water equal to the delivery debits it is allowed to accrue in reservoir storage.
While Colorado was not named directly in the complaint, Colorado sees that claim as an attack on how the state manages its reservoirs and the 100,000 acre-feet of debits it is allowed to accrue against its downstream delivery obligation. “It is a bigger concern because it directly affects us,” Division Engineer Craig Cotten said earlier this month.
Water users in Colorado’s section of the Rio Grande have also informed Attorney General Phil Weiser that they would seek amicus status to join the case should Texas prevail with its claim. “If Texas were to prevail on its claimed interpretation of Arts. VI-VIII, Platoro Reservoir would be rendered effectively useless to the Conejos District because it would be the only reservoir where Colorado could store debit water,” stated the memorandum signed by the Rio Grande Water Conservation District, the Conejos Water Conservancy District and the Rio Grande Water Users Association.
Platoro Reservoir has a storage capacity of only 53,571 acre-feet, which would put Colorado in the position of losing roughly half of its allowable debits under the compact. Those debits, as the memorandum noted, were intended to recognize that variations in stream flow would impact Colorado’s ability to strictly adhere to the delivery obligations laid out by the compact.
Colorado is also leery of the proceedings giving the Rio Grande Project, which is made up mainly of Elephant Butte and Caballo reservoirs in New Mexico, an authority not called for by the compact. Both the United States, which operates the reservoirs under the Bureau of Reclamation, and New Mexico have argued that the project and its contracts with downstream irrigation districts are silently incorporated into the compact. “They’re really trying to add a lot to the compact,” Cotten said. A brief by Colorado has asked the special master to rule as a matter of law that the Rio Grande Project is not incorporated into the compact and does not impose obligations to the states under the compact. The issue of obligations under those contracts should be addressed outside the compact, Colorado argued.
Virtual testimony in the case began last week, with in-person testimony coming later in Cedar Rapids, Iowa. Both Cotten and Deputy State Engineer Mike Sullivan are expected to testify as fact witnesses, although they may not take the stand until a second phase of the trial in spring.
Attorneys laid out their arguments Monday during the first day of a virtual trial in a lawsuit over Rio Grande water with Texas and the federal government alleging that New Mexico’s use of groundwater cut into Texas’ share of river water.
The appointed special master, Michael Melloy, a senior judge for the U.S. 8th District Court of Appeals, is hearing arguments in the 8-year-old case and will compile a report for the U.S. Supreme Court.
Melloy determined in late August that the long-awaited three-month trial would be split into two portions, one virtual and one in-person later in Cedar Rapids, Iowa. He cited a health emergency for one of the Texas attorneys and concerns about the increase of COVID-19 cases for splitting the trial.
Virtual testimony from a mix of members of federal agencies, farmers, irrigation managers, hydrologists and city officials from El Paso and Las Cruces will continue over several weeks.
In the 2014 complaint in the case, officially called No. 141 Original: Texas v. New Mexico and Colorado, Texas attorneys allege New Mexico’s groundwater pumping reduced Texas’ Rio Grande portion by tens of thousands of acre feet each year, and owes Texas damages. An acre-foot of water is equal to about 325,851 gallons.
Colorado is named as a defendant only because it is a signatory to the 82-year-old Rio Grande Compact…
The longstanding tug-of-war over the river’s water between the states and the federal government started a decade ago. In a 2011 federal lawsuit, New Mexico alleged the federal government shorted New Mexico its Rio Grande water, and gave too much to Texas. It escalated when Texas filed a new lawsuit against New Mexico in the U.S. Supreme Court three years later.
On Monday, attorney Stuart Somach, who represents Texas, opened with an apology for repeating arguments, saying he’s presented Texas’ case since 2012…
The basis for Texas’ case, Somach said, was that New Mexico’s groundwater pumping south of the Elephant Butte Reservoir depleted the Rio Grande and violated the Rio Grande Compact.
Historically, the Rio Grande was split 57% to New Mexico and 43% to Texas. Somach said that the increased groundwater use from the city of Las Cruces, New Mexico State University and agriculture in New Mexico reduces the total amount of river water available to Texas.
“We don’t quibble with the fact that we get 43% of something,” Somach said. “But what we’re entitled to is 43% of the conditions that existed in 1938, not the conditions that have been created by New Mexico groundwater pumping.”
Somach said over the next few weeks, Texas farmers, the irrigation district and officials from the city of El Paso will testify to the “injury caused directly by New Mexico’s actions.”
James DuBois, an attorney in the Department of Justice, told the court that New Mexico has known that groundwater pumping would impact the amount of water in the Rio Grande…
DuBois said New Mexico’s actions threatened the compact, and the 1906 treaty that guarantees Mexico’s portion of the Rio Grande, up to 60,000 acre-feet…
DuBois said the court would hear from federal officials at the U.S. Bureau of Reclamation, which oversees irrigation projects in the West, about a 2008 operating agreement between the federal government and irrigation districts that updated allocations.
He said to expect testimony from the International Boundary and Water Commission, a binational agency which enforces the water treaty with Mexico, in coming weeks.
The opening arguments for New Mexico were split between the outside counsel and New Mexico Attorney General Hector Balderas.
Balderas said the uncertain climate future and a shrinking river make this case pressing…
Balderas said the state maintains that New Mexico is not receiving its fair share of water. He referenced the federal civil case from 2011, when the then-Attorney General Gary King sued the federal government over the 2008 operating agreement with the irrigation districts. King alleged the agreement gave too much water to Texas and shorted New Mexico. That 2011 case remains unresolved, because when Texas filed the lawsuit in the Supreme Court in 2014, action halted in the lower courts.
“It’s not Texas that is being harmed in this case, it is New Mexico,” Balderas said…
Attorney Jeff Wechsler, representing New Mexico, said the 2008 operating agreement meant that New Mexico is shorted on surface water, making area farmers more reliant on groundwater pumping…
Wechsler said that additional water in Texas is sold by the El Paso irrigation district to Hudspeth County, which is allowed to use Rio Grande project waste water…
Wechsler went on to say that groundwater pumping in the Hueco Bolson by El Paso, a major source of water for the city, has impacted Rio Grande project waters.
Wechsler said that New Mexico farmers, relying on groundwater because of the federal government’s allocation changes since 2008, are paying more in maintenance and in soil changes, which he said amount to millions in damages.
Weschler asked the court to rule that “New Mexico receives 57% of project water” and allow the state to collect damages.
New Mexico water agencies are urging farmers to think twice about planting crops in what could be a tight water year. The state faces a big water debt to downstream users, and a multi-year drought is taking its toll.
The Office of the State Engineer recommends “that farmers along the Rio Chama and in the Middle Valley that don’t absolutely need to farm this year, do not farm,” according to a staff report that Interstate Stream Commission Director Rolf Schmidt-Petersen presented to the Commission earlier this month.
Irrigation supply along the river from Cochiti Dam to Elephant Butte Reservoir is governed by the Middle Rio Grande Conservancy District. The district cut its 2020 irrigation season a month short, because there wasn’t enough water to go around. A shorter season also helped deliver some river water to Elephant Butte as part of New Mexico’s Rio Grande Compact obligations.
In January, the district board voted to delay the start of the 2021 season until April 1, a month later than usual.
This year is on track to be a situation of water shortages and storage restrictions unlike any since the 1950s, said Mike Hamman, the district’s chief engineer and CEO and an Interstate Stream Commissioner. The district also anticipates receiving as little as half the usual allotment of San Juan-Chama water.
“The hydrology really started to shift in the early ’90s,” Hamman said. “We’ve got into this cycle of below-average, average, above-average years, and I’ve noticed that our climatic conditions (limit) the available snowpack. That exacerbates things a little bit more now, where we need to have well-above-average snowpacks to address the poor watershed conditions that may have resulted from a poor summer rain period or fall moisture.”
Regional farmers are advised to prepare for severe water shortages by exercising “extreme caution” in planting crops this spring and by using any available water only for the most essential uses…
The current Rio Grande Compact water debt of about 100,000 acre-feet, or 32 billion gallons, restricts how much the state can store in reservoirs.
By the end of January, the state will have released about 3,200 acre-feet, or about 1 billion gallons, of “debit water” from El Vado and Nichols Reservoir near Santa Fe to Elephant Butte.
Last year’s monsoon season from May to September was the driest on record for New Mexico.
The Rio Grande could go completely dry this summer all the way from Angostura Dam north of Bernalillo through Albuquerque, especially if this year brings another lackluster monsoon season…
‘Last page in our playbook’
The fail-safe options New Mexico relied on last year to stretch the Rio Grande water supply won’t be available this year. This summer on the river may look like what water managers and environmental groups worked to stave off during last year’s hot, dry summer months.
The Middle Rio Grande didn’t look good in July 2020. The MRCGD had just a few days of water supply left.
No water could have meant no irrigation for farmers, but also limited river habitat for endangered species, scarce drinking water supply for local communities, and meager flows for river recreation.
Then came word from the other Rio Grande Compact states of Colorado and Texas: New Mexico had permission to boost river flows by releasing a total of 12 billion gallons from El Vado Reservoir.
“That was the last page in our playbook, or pretty darn close to it,” Schmidt-Petersen told the Journal.
The release kept the Rio Grande from drying completely in the Albuquerque stretch and helped extend the irrigation season for central New Mexico farmers.
Colorado River water diverted via the San Juan-Chama Project also added to the trickling native Rio Grande flows.
Last summer’s massive release from El Vado was water that had been stored as assurance that the state’s Rio Grande Compact debt would be paid.
That water is gone. New Mexico still has to “pay back” the 12 billion gallons, plus any obligations accrued this year.
State Engineer John D’Antonio said the drought is shaping up to be as severe as the conditions the state experienced in the 1950s.
Gov. Michelle Lujan Grisham’s December 2020 emergency drought declaration could provide some financial relief for communities affected by the record-setting dry conditions.
“There could be appropriated up to $750,000 for each eligible and qualified applicant that the governor may designate from the surplus unappropriated money in the general fund, if there is any,” D’Antonio said.
The state Drought Task Force would determine which organizations or local governments receive the money, which under the emergency declaration could be used for water conservation projects, to offset economic losses caused by the drought, or as a match for federal funding.
New Mexico will endure another double whammy of limited water supply and growing Rio Grande Compact water debt if snowpack levels don’t improve dramatically by early spring.
Statewide snowmelt runoff forecasts published Jan. 1 showed most of New Mexico at less than 80% of normal levels.
Since then, some snowstorms have brought much-needed moisture to the northern half of the state.
But New Mexico needs several months of above-average snow and rain to dig out of a drought before the hot summer months.
Groundwater wells in the lower Rio Grande region of southern New Mexico supply water for municipal and agricultural uses when the river is low.
“That’s not the same in the middle valley for all the farmers there,” Schmidt-Petersen said. “There are limitations on wells that have been in place for long periods of time, so some places can pump and some cannot, and similarly all the way up the Chama.”
The race against time continues for farmers in southern Colorado’s San Luis Valley, with the state’s top water regulator warning that a decision on whether hundreds of farm wells will be shut off to help save the Rio Grande River could come much sooner than expected.
July 28, at a virtual symposium on the Rio Grande River, the state warned growers that they were running out of time to correct the situation.
“We’ll see in the next couple of years if we can turn around this trick,” said State Engineer Kevin Rein. “If we’re not turning it around, we need to start having that more difficult conversation.”
The valley is home to the nation’s second-largest potato economy and growers there have been working voluntarily for more than a decade to wean themselves from unsustainable groundwater use and restore flows in the Rio Grande. Thousands of acres of land have been dried up with farmers paying a fee for the water they pump in order to compensate producers who agree to fallow land.
The San Luis Valley, which receives less precipitation than nearly any other region in Colorado, is supplied by the Rio Grande, but under the river lies a vast aquifer system that is linked to the river. It once had so much water that artesian springs flowed freely on the valley floor.
As modern-day farmers began putting powerful deep wells into the aquifer, aquifer levels declined, and flows in the river declined too as a result, hurting the state’s ability to deliver Rio Grande water downstream to New Mexico and Texas, as it is legally required to do.
Between July 2019 and July 2020 the valley’s unconfined aquifer, which is fed by the Rio Grande River, dropped by 112,600 acre-feet. All told the aquifer has lost around 1 million acre-feet of water since the drought of 2002.
Through a plan written by growers in the valley and approved by the state in 2011, farmers had 20 years, from 2011 to 2031, to restore the aquifer. But multiple droughts in the past 19 years have made clear that the region can’t rely on big snow years to replenish the valley’s water supplies because there are fewer of them, thanks to climate change.
“So what is the future, the short-term future, if we can’t count on climate? And let’s admit we can’t,” Rein said. “If climate’s not cooperating the only thing that can be done is consuming less water.”
Adding to pressure on the region is a proposal by Denver developers to buy thousands of acres of the valley’s farm land, leaving some of the associated water rights behind to replenish the aquifer, while piping thousands of acre-feet of water northeast to the metro area.
Rein said drastic steps, like drying up more fields and sharply limiting how much growers can pump, are needed. But this could result in bankruptcies and could cripple the valley’s $370 million agriculture economy, which employs the majority of workers in the region. Worse still, though, would be the shutdown of all wells in the region, which is what could occur if farmers aren’t able to make progress toward aquifer sustainability.
While the deadline to restore the aquifer is set for 2031, if it becomes clear before then that growers aren’t able to restore groundwater levels, Rein will be forced to take action early by turning off all wells.
Rein said his decision likely won’t come as early as next year. But, he said, “Do we wait until 2031, the deadline? Probably not.”
The groundwater challenges and associated deadline stem from Colorado’s historic 2002 drought which led to more groundwater pumping than ever before and resulted in a falling water table, decreases in water pressure, and failing wells.
Groundwater declines have been so severe that they’ve affected surface water levels in parts of the valley. In 2004, state lawmakers passed a bill requiring the state to begin regulating the aquifer to make it more sustainable.
Landowners within the Rio Grande Water Conservation District (RGWCD) responded by forming a groundwater management district known as Subdistrict 1—that was just the first of what will soon be seven approved subdistricts.
Subdistrict 1 set goals and developed a plan of water management in late 2011 that spelled out how to reduce groundwater depletions and recharge the aquifer.
In 2012 they began paying a fee for every acre-foot of water used. That revenue helps pay irrigators who elect to participate in voluntary fallowing programs and other efforts to replenish the river and reduce stress on the aquifer.
And by 2017, irrigators had restored 350,000 acre-feet of water in the aquifer, halfway to their goal. But drought and disaster struck in 2018. With less surface water available and high temperatures, irrigators pumped heavily to maintain their crops. And by September 2018, farmers had lost about 70 percent of the groundwater gains they had worked so hard to recover.
“2018 was extremely frustrating,” said Cleave Simpson, manager of the RGWCD who is also a fourth-generation grower. ”It really kind of set us back to where we were when we started this in 2012.”
It’s not over yet. Some of that groundwater lost in 2018 has been recovered and this year participation in the fallowing program is higher than ever, with more than 13,000 acres enrolled, according to Amber Pacheco who manages the RGWCD’s subdistrict programs—that’s in addition to the 8,800 acres fallowed through the conservation programs that have been running since 2012.
Simpson and others, faced with another severe drought year, are deeply worried about the success of their conservation efforts, but dire times are also boosting motivation to solve the problem, Simpson said.
“There’s a sense of urgency from the board of managers that we’ve got to keep doing more,” Simpson said. “We’ve got to get back what we lost.”
Caitlin Coleman is the Headwaters magazine editor and communications specialist at Water Education Colorado. She can be reached at firstname.lastname@example.org.
U.S. Commissioner Jayne Harkins of the International Boundary and Water Commission, United States and Mexico, today reiterated that Mexico must take immediate action to deliver Rio Grande water to the United States to comply with the bilateral 1944 Water Treaty. Under the treaty, Rio Grande water is allotted to the United States in quantities calculated based on cycles of five years. The current cycle ends on October 24, 2020. To meet its international obligations, Mexico must deliver an additional 416,829 acre-feet (514.2 million cubic meters [mcm]) to the United States between now and the end of the cycle.
“Mexican government officials have stated there is enough water stored in the Mexican reservoirs to enable Mexico to meet the needs of Chihuahua farmers during this year’s irrigation season while complying with the treaty. They need to increase their water releases to the United States immediately,” said Commissioner Harkins. “Mexico has failed to implement releases promised earlier and continuing to delay increases the risk of Mexico failing to meet its delivery obligation.”
Commissioner Emily Lindley of the Texas Commission on Environmental Quality said, “Mexico has not honored its commitments. Texas farmers, irrigators, municipalities, and industries along the Rio Grande rely on water that should be delivered as laid out in the 1944 Treaty. I echo Commissioner Harkins that it is vital Mexico deliver water immediately to the U.S.”
Mexico has only delivered 1,333,171 acre-feet (1,644 mcm) out of the minimum five- year obligation of 1,750,000 acre-feet (2,159 mcm). The remaining volume yet to be delivered exceeds the 350,000 acre-feet (431.7 mcm) minimum average volume the 1944 Water Treaty requires over an entire year, demonstrating that immediate action is required.
“I want to emphasize that farmers and cities in South Texas rely on this water to get them through the summer,” Commissioner Harkins added.
Under the 1944 Water Treaty, Mexico delivers Rio Grande water to the United States while the United States delivers Colorado River water to Mexico. The United States continues to meet its obligations to deliver Colorado River water and expects Mexico to fulfill its Rio Grande obligations to the United States. The International Boundary and Water Commission is responsible for applying the boundary and water treaties between the United States and Mexico.
A group of county residents is appealing to those concerned about water issues in the county to attend an important water meeting March 12 at 6:30 p.m. at the Road and Bridge Building in Saguache, 305 3rd Street, to sit in on a discussion with commissioners regarding water export plans.
The meeting is styled as “a listening work session,” meaning no public comment or questions will be allowed. The guest speaker is Sean Tonner, who will host a water export proposal presentation…
The water plan, apparently in the works for the past several years, was officially announced during a Rio Grande Water Conservation meeting in Alamosa, the Valley Courier reported Dec. 7, 2018…
While some of those proposing the plan are newly arrived players, the proposal is not. The plan first emerged in the late 1980s with Maurice Strong’s Arizona Land and Cattle Co. and Stockmen’s Water. After reorganizing as AWDI, the new version of the plan was opposed and defeated in the early 1990s by the Rio Grande Water District and Valley citizens.
Originally AWDI, backed by then Baca Ranch owner Gary Boyce — also owner of numerous other water rights — presented a plan to pump 200,000 acre-feet of water annually from the underground aquifer. They claimed there would be no impact on the environment or existing water users. The application was later amended to 60,000 acre-feet annually, (approximately twice the amount consumed yearly by the City of Pueblo).
The new version of the water transport plan was most recently run past Saguache County Commissioners in 2014, prior to the death of Baca Ranch owner Gary Boyce. The entity then proposing the water was Sustainable Water Resources (SWR), now retitled as Renewable Water Resources (RWR). The new company is a mix of the previous organization and new members, a media advisor for the group said Tuesday.
Here’s the release from Wild Earth Guardians (Jen Pelz):
As temperatures in Albuquerque climb to triple digits, the Rio Grande’s flows continue to recede leaving vast islands and sandy channels where the mighty river once roamed. The contrast between conditions this year and last year is stark.
In 2017, the April forecast for the Rio Grande at the Otowi Gauge was 128 percent of average; this year it is 20. The U.S. Drought Monitor’s maps by Brian Fuchs show New Mexico going from only about a quarter of the state in abnormally or moderately dry conditions in June of 2017 to the majority of the state in extreme or exceptional drought this year.
These conditions are driving the early low flows in the Basin, but are not the sole cause of the crisis as seems to be the nationwide narrative.
“Climate change is exposing cracks in western water policy and is shining a spotlight on the unsustainable allocation of water from our rivers and streams,” said Jen Pelz, Rio Grande Waterkeeper and Wild Rivers Program Director at WildEarth Guardians. “The emerging disaster on the Rio Grande this year comes from archaic water policies, lack of accountability by the states, and water managers acting like its business as usual despite the dire stream flow conditions.”
Three main flaws in water policy and enforcement are driving the situation this year. First, the Rio Grande Compact—an agreement between Colorado, New Mexico, and Texas that sought in 1938 to equitably allocate the waters of the Rio Grande between the states–is operating in dry years to magnify the climate changed induced flow declines. When flows are above average (128 percent), like in 2017, Colorado’s delivery obligations to downstream states roughly mimic the flows at the index gauge.
However, when flows cease to reach a threshold of about 4,000 cubic feet per second, the delivery obligation of Colorado ceases entirely meaning Colorado water users can take every last drop and be entirely within the terms of the compact.
The Rio Grande Compact, like other western water agreements, is based on data from an unrepresentative wet period in the historical record; therefore, the allocation system is far from equitable.
Second, the State of New Mexico provides no leadership or accountability to ensure water users in the state are only using what they need. The Middle Rio Grande Conservancy District, for example, requested a permit in 1925 to irrigate over 100,000 acres in the Middle Rio Grande valley from Cochiti Dam to Elephant Butte Dam. The District, however, has not (90 years later) ever proven that it has irrigated the acreage contemplated in the permit, nor that it needs the water it has claimed. This is a fundamental requirement under the New Mexico Constitution that is being blatantly disregarded.
Finally, the District—the entity that delivers water to farmers in the Middle Rio Grande—just last week finally limited its diversions to the more senior users. Despite anticipated flows of 20 percent of average, the District provided water to the most junior users—those that do not have any claim to water—from March 1 to June 12 (104 days).
“These institutional agreements and policies not only threaten the health of the river, but also put the most senior users’ ability to irrigate to the end of the season at risk,” added Pelz. “The wild west days are over and climate change is exposing these flawed choices. It’s time to find a new sustainable path forward.”
WildEarth Guardians works to protect and restore the wildlife, wild places, wild rivers, and health of the American West. Our Rio Grande: America’s Great River campaign seeks to provide the Rio Grande with a right to its own water and to reform western water policy for a sustainable future for this icon.
From the New Mexico Political Report (Laura Paskus):
In early April, when the Middle Rio Grande should have been rushing with snowmelt, New Mexico’s largest river dried. It started through Bosque del Apache National Wildlife Refuge, spreading to more than 20 miles by now. The Albuquerque stretch may dry come June or July, which would mean some 120 miles dry altogether this summer.
Already, if you live in Albuquerque, you may have peered over the bridges and seen sandbars and slow water this spring. Even in places like Velarde or Española, historically low flows are trickling through your town, the result of not enough snow in the mountains this winter.
To see this happening in spring is shocking. But we shouldn’t be surprised. We knew this could happen. Just like we knew the climate was changing.
We know, for example, that warming makes an arid climate even drier.
On average, our snowpack is decreasing, moving north and melting earlier. That leads to less water in the rivers when we need it—spring and early summer before monsoons arrive.
And even when there is snow, warmer temperatures transform more of it to water vapor before it can liquefy its way into the watershed. Warming dries out soils and sends more dust into the air. That’s bad news, both for breathing creatures and snowpack, as topsoil-coated snowpack melts faster.
Warming means less water in rivers and reservoirs, and also less water underground.
Groundwater isn’t being recharged through snowmelt and streamflows, and we’re pumping more to compensate for the lack of surface water. New Mexicans survived the drought of the 1950s by pumping groundwater when the rivers slowed and the rains failed to fall. Since then, we’ve kept pumping, depleting aquifers and groundwater supplies.
Warmer, drier conditions also mean bigger, hotter wildfires and a longer wildfire season.
And after the fires, some of our forests can’t regenerate. Where they once thrived, ponderosa pine and mixed conifer forests can’t survive because it’s too warm—not to mention dry. In some places, even hardy junipers are drying out and dying off.
Before the Dome Fire and then Las Conchas, which burned here in the Jemez Mountains seven years ago, this was a dense conifer forest. Today, the climate is too warm for those trees to return.
In some places across this 30,000-acre burn scar, aspens and locust trees are sprouting where firs used to grow. In other places, the ground remains bare. When rains fall here, floods drive torrents of mud, ash and debris downstream.
Climate change means our forests change; our rivers and our grasslands change. It means our cities and small towns, farms and orchards change.
And we’ve known this for a long time.
In 1965, President Lyndon B. Johnson’s science advisers told him humans were “unwittingly conducting a vast geophysical experiment” by burning within a few generations fossil fuels that had accumulated over hundreds of millions of years. The carbon dioxide humans were injecting into the atmosphere would cause changes, they wrote, that would harm human beings.
In 1988, the New York Times reported on its front page that the Earth was warming. NASA scientist James Hansen testified before Congress, urging action to cut carbon emissions.
We knew what was happening.
In 2005, New Mexico released a report on the potential effects of climate change on the state. The 51-page summary report laid out a range of problems and potential solutions, related to everything from water and infrastructure to public health, wildfire and environmental justice.
New Mexicans then elected a governor who ended all state programs under her authority related to climate change.
Ten years later, scientists, economists and hydrologists worked together to understand New Mexico’s drought vulnerabilities. They handed off a report to the legislature that revealed problems with groundwater supplies in the Lower Rio Grande.
Our state Legislature didn’t renew their funding.
For decades, there have been scientific papers, government reports, planning documents, economic studies and international agreements.
We knew what was going to happen.
And yet, here we are.
No matter what you might hear from certain voices, this drying in the Middle Rio Grande is not normal for springtime.
That’s not to say that the river here has never dried in the spring, since records have been kept or before.
But just because something has happened before doesn’t mean it’s normal.
As it continues happening—as a river that supports millions of people in three states and two countries continues to dry—we all need to pay attention.
We also need to understand what biological, chemical and hydrological impacts are occurring, says Clifford Dahm, professor emeritus at the University of New Mexico’s Department of Biology and an expert on intermittent and ephemeral rivers.
“The aquatic creatures that live in the river, as it’s drying and staying dry longer, are going to change,” he said. “There will be a shift towards completely different communities of fish, algae, invertebrates and trees.”
Right now, we don’t know how quickly those shifts will occur, which species will survive, die or recover. But when the water table drops to more than ten feet below the surface, we do know cottonwood trees struggle and then die, Dahm said.
Right now, we know that in the Rio Grande Basin, warming will lead to a four to fourteen percent reduction in flow by the 2030s and an eight to 29 percent reduction by the 2080s.
On the Colorado River—which New Mexico also relies upon—scientists have predicted a 20 to 30 percent decrease in flows by 2050. And a 35 to 55 percent decrease by the end of the century.
Even on the Gila River in southwestern New Mexico, warming will decrease flows by about 5 to ten percent due to decreasing snowmelt runoff.
From the Colorado Attorney General’s office via the Valley Courier:
[On Monday, January 8, 2018], Colorado Attorney General Cynthia H. Coffman’s office presented arguments in the U.S. Supreme Court in Texas v. New Mexico and Colorado, No. 141, Original, to protect the authority and jurisdiction of the Western States to manage water rights within their own borders and across state lines in cooperation with neighboring state officials.
The case reached the U.S. Supreme Court after Texas sued New Mexico over a dispute regarding water in the Rio Grande Basin. Colorado, Texas and New Mexico are all parties to the Rio Grande Compact, an agreement that since 1938 has regulated the interstate apportionment of the waters of the Rio Grande. Texas did not make any claims against Colorado, but because Colorado is a party to the Compact, Colorado was also included in the case.
While Texas’s claims against New Mexico were pending, the U.S. government attempted to independently sue the State of New Mexico under the Rio Grande Compact. The Supreme Court invited the State of Colorado to present arguments on whether the United States has a right to sue a State under an interstate water compact, despite not being a party to it.
“Arguments over water rights have been going on since the beginning of statehood, but the authority to manage this critically important natural resource has always belonged first and foremost to the States,” said Attorney General Coffman. “We cannot allow the federal government to encroach on our rights and interfere with our ability to manage water resources on equal footing with our Sister States.”
Colorado Solicitor General Fred Yarger argued on behalf of the State, explaining that the federal government does not have a right to sue New Mexico under the Rio Grande Compact. The United States is not a party to the Compact, he explained, and the authority, jurisdiction and responsibility to manage the water of the Rio Grande lies with the States. Solicitor General Yarger argued that allowing the federal government to sue under the Compact to which it is not a party would set a very concerning precedent, harming the ability of States to work together to solve water disputes cooperatively, without federal government intrusion.