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Hernandez says that voiding the 2008 Operating Agreement removes a degree of certainty that farmers rely upon to make a living. Farmers are already grappling with economic uncertainty and drought. Now, they’ll also be confronting regulatory uncertainty—for the foreseeable future.
In the short-term, farmers can expect continued drought and a tightening of surface water supplies: As of mid-February, the Rio Grande Project had a total of 201,816 acre feet stored in Elephant Butte and Caballo reservoirs. Irrigation season is expected to begin in mid-June and last six to eight weeks. As the drought continues, the district has warned that farmers should expect a short allocation year. Not only that, but EPCWID is also dealing with a “very short supply” and the two districts plan on “running water together” with Mexico. Unlike some years, all three users—EBID, EPCWID, and Mexico—will start running irrigation water on the same date this year. With water in such short supply, everyone will get a run at the water, and it will ensure less water is lost from the system.
Meanwhile, in Texas, the Rio Grande Project supplies the EPCWID, which provides water for 69,010 acres of water rights land (in a region that receives on average eight inches of rain each year). According to its website, the EPCWID encompasses 156 square miles, more than 350 miles of canals and laterals in the distribution system and more than 269 miles in the drainage system. The system has more than 2,205 turnouts, which are used to irrigate cotton, alfalfa, pecan, chile, wheat, milo, and vegetables.
EPCWID’s general manager, Jesus Reyes, is unable to comment on the litigation. But he explains that the district has 32,000 water accounts—85 percent of which serve tracts of land that are five acres or less. The district also supplies irrigation water via the American Canal to the City of El Paso for municipal uses. During full allocation years, 50 percent of the water El Paso uses comes from the Rio Grande Project under EPCWID’s contracts.
The drought has hit Texas users hard: During full allocation, EPCWID delivers four acre-feet of water per acre to its farmers. In 2012, it delivered only about 2.5 acre feet, says Reyes. (Unlike in New Mexico, where in theory, senior water rights holders receive their water before junior rights holders, in Texas all users are treated the same: Orders to EPCWID are placed on a first-come, first-served list. Farmers there also share shortages regardless of priority.) Reyes estimates that last year, farmers in the district chose to not plant about half what they might normally.
And this year promises to be worse: Currently, EPCWID has only 35,000 acre-feet of water stored at Elephant Butte Reservoir. During a full allocation year, he explains, the district has 380,000 acre-feet.
Managers and farmers within EPCWID are also concerned about the dissolution of the 2008 Operating Agreement. As Reyes explains, the agreement allowed the district to conserve water, promote conservation, and carry over water from year to year. “That is, any water we conserved one season, we could carry over to the next season,” he explains, adding that the district was capped at 32,000 acre feet. “This carry-over helps our community because we were able to let our constituents and the City of El Paso know how much water we have, early in the year.” Leaving that water behind Elephant Butte Dam benefited EBID, he says, and recreationists in New Mexico.
History Repeats Itself
As tensions rise among farmers, states, and attorneys, it’s worth remember that this isn’t the first time that Texas has sued New Mexico over groundwater pumping and its effects on surface flows. In 1974, Texas sued New Mexico in the U.S. Supreme Court, claiming New Mexico had violated the 1948 Pecos River Compact and shortchanged it by 1.2 million acre-feet of water since the 1960s. The suit dragged on for almost two decades and cost both states millions of dollars.
In his 2002 book, “High and Dry: The Texas-New Mexico Struggle for the Pecos River,” G. Emlen Hall, Emeritus Professor of Law at the University of New Mexico School of Law, details that suit and the impact it had on New Mexico. “No winner,” he writes, “has emerged in the aftermath of Texas v. New Mexico.”
Although they’re different in geography and scope, the Pecos suit and the current suit on the Rio Grande share a few similarities. Hall notes that the complaint Texas recently filed is a familiar one.
“This is the old Pecos River problem where the Roswell wells were depleting the flow of the Pecos outside the Compact,” he writes in an email. “That’s a real problem, but I’m not sure it’s a Rio Grande Compact one. Under the Compact, New Mexico’s obligation is to deliver water to Elephant Butte. What happens after that may be a federal problem, but not a Compact one.” Without supplemental groundwater, New Mexico’s farmers in the southern part of the state will be “out of luck,” according to Hall, who adds: “And, the stakes are very high, higher than the Pecos—which took millions of dollars to get out of.”
In the final chapter of “High and Dry,” Hall addresses the issue of compacts, which he notes are “important everywhere in the West” because they address the basic legal framework within which individual states share water. He continues:
“Most of those compacts, like the Pecos River Compact, date from the mid-twentieth century and represent compromises by which the rapid unfettered development of the first half of the twentieth-century could be protected, regulated, and continued in the second half. Lawsuits between states over those compacts, like Texas v. New Mexico, No. 65 Original, reveal late twentieth-century structural flaws which indicated the lawsuits and compacts no longer are capable of mediating between the water past and the water future.”
Indeed, this problem will become increasingly severe throughout the 21st century.
Responses to “Compact Complications”