In 2003, Pino participated in the creation of a sub-regional water plan for the Rio Jemez/Rio Puerco drainage. The document makes repeated references to the desired relationship between the State of New Mexico and the tribes: government-to-government consultation on water planning, water settlements, and adjudication. “It’s good to see it in print,” Pino declares, “but in practice, it never really happened. The people who were part of the process were never fully engaged. We never listened to one another in what our needs and desires were.”
In a similar vein, the State Water Plan provides for an Indian Water Right Settlement Trust Fund as an indication of New Mexico’s commitment, and an incentive to tribes and the federal government to settle Indian water claims. But state funds have not been made available for the Rio Jemez settlement, and Pino says, “We feel they reneged on their promise.”
He speculates that by working out the shortage sharing agreement in 1995, Jemez basin litigants put themselves “on the back burner. There was no crisis, no need to address that issue, because we as local people took care of it and agreed to share the water among the communities.”
Another impediment to settlement, Pino notes, was the familiar assurance that state compliance with the Rio Grande compact shall in no way affect Indian water rights. “In the settlement negotiations, that issue kept coming up. It was disguised, but it kept coming up. The less water they can give us, the more water they’ll have for Texas.”
Likewise, Pino regrets the state’s use-it-or-lose-it policy. “With that mentality, you’re taking away from future generations,” he says, a philosophy decidedly at odds with Zia’s tribal council, whose goal in 1983 was to ensure water for the needs of the people “to the end of time.” Eventually, Pino believes, “those that fight over resources will kill themselves off. Self-centeredness, greed, and ego will be their demise.” Instead, he counsels mutual respect, and truly listening to what others have to say. “If we just go through the motions, Mother Nature is going to shake us up and we will have no choice.”
The State Water Plan and Regional Water Plan Updates
Scott Verhines, New Mexico’s State Engineer, is “a year and two weeks on the job,” and among the day’s Dialogue presentations, he says he notes “a sequence of events that makes a lot of sense.” That sequence goes: Planning is important, and planning along with the threat of litigation can inform a settlement discussion, with the goal of trying to provide certainty to everybody in an area of the state. “We have settlements that have taken place,” he avows, and yet, “those that we thought were done are hard to meet” under the extraordinary drought conditions the state currently faces. Perhaps, he suggests, settlements are works in progress, and the certainty afforded by them “is a certainty, but…”
As State Engineer, Verhines chairs the Water Trust Board, an infrastructure-funding entity originally formed to leverage local, state and federal resources for large projects, and to improve the state’s watersheds. “Statutorily and in policy, the Water Trust Board is supposed to implement the recommendations of the State Water Plan. It is also supposed to give preference to projects that were identified and prioritized in regional water plans. I’m not sure we’ve quite got there yet…We need to provide a continuing opportunity for regional water plans to get updated. What if there’s a good idea that doesn’t have a path forward because it was not in the original regional plan?”
Verhines says that although planning has taken on a negative connotation over the years, the Office of the State Engineer still supports it, given one caveat: “Planning efforts need to result in something. If we can’t get somewhere in 18 months or two years, let’s spend that money somewhere else… Maybe that process (planning .settlement . certainty) is something to consider, because where it’s happened, we’re that much further on.”
Verhines believes regional water planning served its original purpose of keeping water in the state, but the resultant plans may not be representative of all interests in a region. “If you want a plan to be implemented,” he says, “it’s important to have all the right people at the table.” At a Western States Water Council conference on infrastructure, Verhines learned a few things that may aid the Water Trust Board in reforming its capital outlay program. The private investment sector is eager to finance large infrastructure projects, but the single biggest credit risk in doing so is deferred maintenance. What shows up on an entity’s books as an asset may actually represent a liability if essential upkeep has been put off. Public funding sources need to apply a similar yardstick, and some prioritizing must be done so the available dollars aren’t spread too thin.
Verhines concludes with the cold, hard fact that the past 24 months have been among the driest in state history. Record low flows were set on 220 separate days at several gauges on the Upper Pecos. “No amount of administration is going to resolve that,” he says. “We need to bring planning back into the picture. What are we going to do [given the scale of looming drought and lawsuits!] so that we’re solving rather than fighting?”
Estevan Lopez, Director of the Interstate Stream Commission, admits, “not much has happened” toward updating state and regional water plans. With no funding available for planning in recent years, the OSE is carrying out an internal update of the state water plan. Most of the chapters have been drafted, Lopez says, and will be put out for public comment soon. The work plan calls for the update to be completed by June of this year. On the regional front, little has been accomplished unless the regions themselves raised the funds to do an update. “A few have,” Lopez says, “and I commend those that have kept the process going.”
There is broad-based support this year for “modest funding for the planning process. Our request is going to be for $400,000 in recurrent funding. There are 16 planning regions, and if we could allocate $100,000 to four regions per year, in four years we’ll get through updating all 16. I’m sure it’s not going to work out that cleanly, but in the fifth year, we’ll have $400,000 to focus efforts on updating the state plan.” Several initiatives underway are “either planning processes themselves, or the implementation of something that’s been planned for many years,” Lopez reports.
A Colorado River basin study, done by the Bureau of Reclamation and released in December, predicts an annual shortage of between 3.2 million and 7.5 million acre-feet over the next 50 years. The study evaluated some 150 proposals for making up for such a shortfall that could be taken quickly if climate effects begin to accelerate. “After spending $6 million over three years,” Lopez says, “this really is a call for action.”
Also on the Colorado river, Mexican and U.S. sections of the International Boundary and Water Commission have negotiated a five-year amendment to the 1944 treaty that provides a mechanism for sharing shortages and surpluses. “It contemplates some joint environmental efforts in the Colorado delta area, and some joint projects to try to add water to the system, so it’s one component of how we’ll address the conclusions of the basin study.” In the Middle Rio Grande, work is proceeding on the Biological Opinion for the silvery minnow and southwest willow flycatcher. The current Opinion expires in March, and Lopez is hopeful that the new plan can be completed by the time irrigation season starts. “We’re also working to transition from simply a collaborative program that seeks to avoid jeopardy for those species, to a recovery and implementation program, something that gets us to an endgame on this.” He adds, “Maybe that’s too ambitious for this system, but I think we have to try.”
In the southwest corner of the state, the Arizona Water Settlement Act allows New Mexico to use up to 14,000 acre-feet of additional water from the Gila and San Francisco Rivers, “a 50 percent increase in the right we have today, so we’re trying to plan how we’ll use that water, and the substantial amount of federal funding that goes with it.”
On the other side of the state, the Eastern New Mexico Water Supply System, or Ute Pipeline, which will carry water from Ute Reservoir to communities like Clovis and Portales, has been in planning for 50 years. To date the project has received authorizing legislation, some aspects of construction have begun, and litigation that previously held the project up has been resolved.
As to Indian water right settlements, Lopez names three that have been negotiated, authorized, and “are being implemented right now.” Those are the Navajo Settlement in the San Juan Basin, which includes a billion-dollar infrastructure project with a state cost-share of $50 million; the Aamodt Settlement, which addresses the claims of San Ildefonso, Pojoaque, Tesuque and Nambé Pueblos, promising $50 million in state money for water and wastewater infrastructure; and the Taos Settlement, which represents a $20 million commitment in state funds.
An Indian Water Rights Settlement Fund was created in 2005, and to date, the legislature has appropriated $25 million for the three settlements mentioned above. In reference to the “failed negotiations” on the Rio Jemez, Lopez says, “New Mexico has consistently maintained a position that the Indian portion of Indian water right settlements—to the extent that there’s funding required for that—is a federal obligation. We don’t have the resources to take that on…Unfortunately, very late in the negotiations with Zia, Santa Ana and Jemez Pueblos, the federal government said, ‘We’re not going to fund any more than 50 percent of these settlements,’ and the state balked at that. That’s what broke down in that negotiation. Absolutely, we have a role to play in funding these settlements…We feel like we’ve done that, but we have to maintain some principles, otherwise we’ll never be able to get through the remaining negotiations with some 16 Pueblos and tribes.”
Finally, in regard to the Pecos, Lopez says that in 2001, the state was so close to under-delivery to Texas that a group of water users in the Lower Pecos was convened to come up with a consensus solution. The resulting settlement required the Interstate Stream Commission to acquire water rights in the Roswell artesian basin, and to construct augmentation well fields so that in times of low flow, groundwater can be pumped into the river to increase supply to the Carlsbad Irrigation District or for state line deliveries. But since March of 2011, the drought has made it necessary to pump constantly, and well capacity has “dropped dramatically.” The present drought is “beyond any of our modeling,” Lopez concedes, and “tensions are high as a result. We’re trying to work through those issues.”
Angela Bordegaray, senior water planner for the Interstate Stream Commission, says, “It’s easy to focus on what we haven’t done, what we can’t do, and what we aren’t doing,” when in actuality, so much has been accomplished. “I want to express my gratitude for this particular venue…it really is our state’s Town Hall on water, and while we on the public funding level haven’t come through consistently with support for water planning, the Water Dialogue board and all who put this meeting together year after year have sustained the effort. For that we can be grateful.”
Another thing that deserves our gratitude, Bordegaray says, is change, because along with it come new opportunities and new perspectives. “I don’t claim to know how to define climate change,” she says, “or to distinguish it from drought, but obviously something is going on… I’m speaking most deeply as a mother: if the forecasts play out, my 10-year-old daughter won’t be able to raise her children in the same environment that I am raising her. That’s very close to me and close to all of us….Clearly, as a planet, we don’t know what to do about it because we think we have to agree on whether it’s really happening, or who is causing it. I think that is going to change, and quickly.” We may not have answers, Bordegaray encourages, but our best bet for finding them lies in “listening to each other and building on our successes.”
Dominique Cartron, of D.B. Stephens and Associates, has researched how water plans in Colorado, Arizona, Oregon and Texas have been developed; how regional plans were or were not integrated with a state plan; and how funding and plan implementation are connected.
Arizona’s plan is “groundwater focused,” Cartron says, concentrating on population centers and active management areas where 75 percent of the state’s water is used. The goal is to reach “a sustainable yield situation in the aquifers” by 2025. The state has been actively planning since 1980, and although funding is down, the program is well staffed. The planning division also encompasses water conservation, water use and permitting, with revenue coming from several key funds, including the ecosystem-and-environment-focused Arizona Water Protection Fund, and the implementation-oriented Water Management Assistance Program, which is dependent on groundwater withdrawal fees. In regard to climate change, Arizona is looking at various basin studies and models to aid in scenario planning and future projections.
Colorado has no comprehensive water plan, but a six-year program called the Statewide Water Supply Initiative is underway to gather data and “identify gaps and needs.” In 2005, permanent Basin Roundtables (the equivalent of New Mexico’s regions) were established to do basin-wide assessments that will be integrated at the state level. A committee of basin representatives meets to address inter-regional issues, and the combined regional and state planning program receives $1.5 million in funding each year. Colorado’s equivalent of New Mexico’s Water Trust Board is the $10 million Water Supply Reserve Account that funds projects originating from Basin Roundtable recommendations.
In terms of climate change, numerous studies suggest its effects are already underway, but how to address those through water planning is as yet undetermined since Colorado’s Climate Action Plan focuses on greenhouse emissions, and not on water.
Oregon began its state water plan in 2009. The program is “very much top-down,” notes Cartron, with but two staff members and a lot of in-kind contributions from other agencies. The Governor’s budget request for water planning from 2013 to 2015 is for $66 million, with $21 million for a project implementation fund, $10 million for basin aquifer recovery projects, $4.5 million for data collection, and the remainder for measuring, metering, and studying instream flows. There is no regional planning program, but groups doing watershed planning are being funded through the legislature. The state water plan includes specific climate goals, with the intent to developa suite of “climate change adaptation strategies.”
Texas has engaged in “robust water planning since about 2000.” A third-iteration state water plan, published in 2012, was funded to the tune of $16 million, and is based entirely on regional water plans. Any project funded at the state level must be consistent with the applicable regional plan. The state does provide technical support to the regions, and maintains about 20 permanent staff positions in the planning division. As to climate change, Cartron concedes wryly, “I don’t think you talk about that in Texas.”
Reviving What Lives
There is no quarrel: water planning is as significant in 2013 as it was when the legislature mandated it in 1987. We have not exhausted its learning curve, regardless of the money spent, the input accumulated, or the revisions carried out, for such recipes overlook the most essential ingredient. Planning is the process whereby, as John Fleck puts it, “a community’s values become functionally enshrined.” But as we have seen, values change, rearranged by circumstance and necessity. Perhaps, then, what must be “enshrined” is the obligation to acknowledge values, to include the organic soul of community and continuity in the dry mechanism of every plan. As the “generation of right now,” the ones with current skin in the game, our choices proscribe or enlarge the prospects of those who follow us; they also revere or discredit the values of those who came before. To plan is to tell that story, which breathes, and has no end.
(Creative Commons feature image via Flickr by: Lane 4 Imaging)
May 30, 2013