Groundwater provides an important source of irrigation for farmers in southern New Mexico, but Texas alleges that New Mexico’s use of groundwater below Elephant Butte reservoir has reduced surface water in the Rio Grande that is available for farmers downstream.
Texas filed a lawsuit in 2013 before the U.S. Supreme Court alleging that New Mexico has violated the Rio Grande Compact. This week, special master Judge Michael Melloy heard witness testimony and opening arguments during the first week of a virtual trial. Melloy is tasked with compiling a report for the U.S. Supreme Court. The virtual section of the trial will be followed by an in-person section in the spring in Cedar Rapids, Iowa in March.
Related: Change up: SCOTUS changes special master on Rio Grande water battle
The United States has intervened in the case, arguing that New Mexico has failed to administer the groundwater use and that failure threatens not only the compact but also the 1906 treaty agreement with Mexico. This treaty requires the United States to provide Mexico with up to 60,000 acre-feet of water annually.
State leaders looking for a way to address a litigated claim that New Mexico is not providing enough water to Texas under a decades-old compact want funding for a water conservation pilot program south of Elephant Butte. Though the plan remains vague, both Gov. Michelle Lujan Grisham and the Legislative Finance Committee are proposing to support it by allocating funding to the project in the 2021 fiscal year.
The plan would let water users in the southern part of the state figure out how and when to leave certain areas of their farms unplanted — or fallow — to conserve ground and surface water.
“It’s the start of a solution to the lack of water resources south of Elephant Butte,” said Senate Majority Leader Peter Wirth, D-Santa Fe, who first announced the plan at a Journey Santa Fe event this month. “It’s critical that the solution comes from the farmers down there.” The Governor’s Office is proposing a $10 million allocation in next year’s budget for a year’s implementation of the pilot program. The LFC’s $30 million proposal takes a three-year approach to the plan, Wirth said.
This week, John D’Antonio will take the helm at the Office of the State Engineer, the agency that oversees water rights and applications in New Mexico, for the second time. D’Antonio served as State Engineer beginning in 2003, through the administration of Gov. Bill Richardson, and for almost a year under Gov. Susana Martinez. After leaving the state position in 2011, D’Antonio returned to the U.S. Army Corps of Engineers and was named deputy district engineer for the agency’s Albuquerque district. Asked why, at this stage in his career, he’d want to head the state agency again, especially given New Mexico’s water challenges, D’Antonio said he didn’t initially apply for the position. “But as I spoke to the transition team…and noting how much of a challenge we have as a state, I thought it was important to have someone coming back in that could pull a lot of things together,” he said.
Last winter, snows didn’t come to the mountains, and the headwaters of the Rio Grande suffered from drought. In April, the river—New Mexico’s largest—was already drying south of Socorro. And over the summer, reservoir levels plummeted. Meanwhile, the U.S. Supreme Court battle between Texas, New Mexico and the U.S. government over the waters of the Rio Grande marches onward. At a meeting at the end of August, the special master assigned to the case by the Supreme Court set some new deadlines: The discovery period will close in the summer of 2020 and the case will go to trial no later than that fall.
Right now, New Mexico’s largest reservoir is at about three percent capacity, with just 62,573 acre feet of water in storage as of September 20. Elephant Butte Reservoir’s low levels offer a glimpse of the past, as well as insight into the future. Over the past few decades, southwestern states like New Mexico have on average experienced warmer temperatures, earlier springs and less snowpack in the mountains. And it’s a trend that’s predicted to continue. “There was no spring runoff this year.
For almost a year, drought conditions have gripped New Mexico, dropping lake levels and drying out riverbeds and rangelands alike. Even this summer’s monsoon rains haven’t been enough to alleviate drought conditions or bump up reservoir levels. And while El Niño conditions brew in the Pacific—foretelling wetter conditions for the Southwest later this year—right now, the state’s water situation is dire. The Middle Rio Grande Conservancy District is now notifying farmers that the water it had stored is almost depleted, months before irrigation season’s typical end around Halloween. They can’t predict exactly when the water they have stored in El Vado Lake, on the Chama River in northern New Mexico, will run out.
A U.S. Supreme Court decision on Wednesday in a water fight between Florida and Georgia could have implications for a similar legal battle between Texas and New Mexico over the Rio Grande water supply, legal experts said. Five years ago, Texas sued New Mexico, asserting that New Mexico is in violation of the Rio Grande Compact, an interstate agreement that has governed water allocations between the two states and Colorado for 80 years. New Mexican farmers pumping the river’s groundwater cause river levels in Texas to drop, depriving Texans of the water they’re obligated to, the state argued. Over 1,000 miles away along the Florida-Georgia border, the Sunshine State is accusing its neighbor of taking more than its fair share of water from the Apalachiola-Chattahoochee-Flint River Basin. In Wednesday’s decision, the high court remanded the case to the court-appointed special master responsible for issuing recommendations to the court.
New Mexico filed its responses to Texas and the federal government on a U.S. Supreme Court lawsuit over the waters of the Rio Grande. On Tuesday night, New Mexico Attorney General and its contract attorneys filed the state’s counterclaims on Texas v. New Mexico & Colorado. We’ve posted those three pleadings below. A press release announcing the counterclaims included a quote from Balderas: Our legal strategy will hold Texas and the federal government accountable for the significant amount of precious water being misappropriated that rightfully belongs to New Mexico’s working families and small businesses, and for the federal government not using proper accounting and failing to ensure reasonable water delivery improvements. Using the best science, technology and evidence-based strategy, we will protect our traditionally underserved and culturally diverse population, and protect against those interests that threaten our citizens and businesses.
Despite the rains that doused parts of New Mexico on Monday, the state officially entered into drought conditions on the Rio Grande when water levels in two key reservoirs dipped below a critical legal threshold. On Sunday, New Mexico entered into Article VII restrictions as storage in Elephant Butte and Caballo reservoirs dropped below 400,000 acre-feet. Under Article VII of the Rio Grande Compact, that means Colorado and New Mexico can’t store water in any upstream reservoirs built after 1929. In the Rio Grande watershed, reservoirs capture and store native Rio Grande water and water piped from northwestern New Mexico via the San Juan-Chama Project. Each drop is earmarked for particular users and managed under the legal strictures of the compact.
New Mexico’s next governor should be ready to confront the state’s critical water issues on his or her first day in office. That’s according to Mike Connor, deputy secretary of the U.S. Department of the Interior during the Obama administration, who spoke at a water conference at the University of New Mexico on Thursday. The agenda looked ahead—past the six remaining months of Gov. Susana Martinez’s administration—to what the next governor needs to understand about New Mexico’s water challenges, from drought and water transfers to interstream agreements, including on the Colorado River, whose waters seven U.S. states and Mexico share. Connor noted that on the Rio Grande, Elephant Butte Reservoir is 18 percent full, and said it could drop to less than five percent by the end of this year’s irrigation season. “The governor needs to have some policy initiatives ready to go as quickly as possible because there are going to be water issues that need to be addressed from the get-go,” he said.