Two other “newsworthy” issues in the Southwest region include the damming or diverting of the Gila River for offstream storage under the Arizona Water Settlements Act, and the controversial proposal to pump 54,000 afy of groundwater from the San Augustin Plains “to service a water debt in the middle Rio Grande.” Both proposals boast gargantuan price tags, as-yet unidentified beneficiaries, and likely negative economic and environmental consequences for Salmon’s “faraway, still pastoral world.”
Dick Smith from the Lower Pecos Valley says when work on that region’s water plan began in 1991, “we were under tremendous pressure,” having recently lost a lawsuit to Texas for under-delivery of about 10,000 acre-feet a year of Pecos River water. “It was essential to avoid a priority call and bring the basin into balance…” Smith says, and that meant trying to ensure an adequate supply for existing water rights, projected population growth, commercial/industrial demand, agricultural and environmental needs, and compact obligations, and then to allocate “all future water available for beneficial use in New Mexico.”
Planners eventually settled on four alternatives they believed to be the “most doable.” They were: managed well-field operations, agricultural water conservation, riparian vegetative management, and watershed management.
The Pecos Valley Artesian Conservancy District initiated a loan program enabling landowners to upgrade irrigation systems and maximize water use, resulting in the conversion of about 85 percent of the region’s cropland to center pivot and sideroll sprinklers. “We’re leaving the saved water in the ground,” Smith says, but given successive years of decreased river flows due to drought, “we’re not seeing a huge difference” from the agricultural conservation alternative.
The jury may still be out regarding riparian vegetation management undertaken by the Soil & Water Conservation Districts through a state-funded saltcedar eradication program, but Smith is unambiguous about the watershed management alternative: forest vegetation was so thick that fires over the last 15 years have “destroyed just about everything,” immobilizing the watershed’s ability to store water. “It’s all going to burn,” he predicts, but he also sees the devastation as an opportunity to adopt a wiser management approach.
As to the Lower Pecos water plan’s top alternative of managed well-field operations, it too may fall short of expectations under the continued drought. The strategy involved state purchase of 10,000 acre-feet of surface water rights in the basin, and subsequent pumping of an equivalent amount of groundwater from two well fields to make up deficiencies in river flow in dry years. After “some hundred million dollars” and continuous pumping since March of 2011, the Pecos has been augmented by only 33,600 acre-feet, and several wells have had to be replaced.
The settlement agreement anticipates extraction of up to 35,000 acre-feet in one year, but Smith says the capability isn’t there. In retrospect, he acknowledges that the regional water plan, created during a period of ample precipitation, simply fails to anticipate the harshness of the current shortage, and his warning, delivered in the colloquial of the school of hard knocks, is that a plan “ain’t no good if you can’t do it.”
Regional Water Planning Challenges
David Benavidez, of New Mexico Legal Aid, says that most water planning meetings he’s attended are about “closing the gap,” which doesn’t apply to stakeholders like acequias that have no gap to close. “The discussion is really about how people without enough water rights can get water from people who do have enough.”
Originally, Benavidez recalls, water transfers were entirely a state engineer decision based on impairment to other rights or to the hydrologic system. In 1985, however, “conservation and public welfare” were added to the evaluation criteria, and “much time has been spent trying to define what public welfare is.” After 1987, the state engineer was also mandated to recognize regional water planning as being “in the public welfare,” and to consider such plans in making water transfer decisions.
Finally, in 2003, individual acequia commissions with correspondingly amended bylaws were granted power over water transfers into or out of their acequias. The official state policy is that transfers with a willing buyer and seller are allowed only to the extent that they are not detrimental to the acequia or its members.
Such considerations are making a difference, Benavidez says, because acequias can now be protected from the detrimental effects of water transfers. He likens the new criteria to collective bargaining agreements, or the National Labor Relations Act, which allowed “more interests to be served… There has to be more dialogue rather than less; more collaboration that lets you reach a solution.” Given that overlay of public welfare, the survival prospects for the acequia community are certainly better,” and regional water planning is “more expansive than it otherwise would have been.”
Claudia Borchert, of the City of Santa Fe’s Water Division, notes that the Jemez y Sangre Region has multiple cities and watersheds, and its boundaries are “somewhat arbitrary,” a fact that “plays a role in what can or can’t be accomplished at the regional level.” The regional water plan was updated in 2007, and again in 2009, to reflect the likely effects of climate change on the gap between supply and demand.
Studies are underway in the basin to further ascertain how water resources will be impacted, and to improve current water models for the region, but Borchert says the more important issue is how to respond to predicted increases in evaporation, hotter temperatures, drier conditions, more destructive forest fires, and ecosystem declines. “We have to act. We have to transform the way we work now.”
When dealing with climate change, all the usual water planning challenges—costs, political will, resource limitations, inertia, institutional structures, and entrenched thinking—still apply, and the region is also constrained by what can be accomplished on a geographical scale. “It takes a lot of effort to get even two entities sharing the same watershed to plan…The easier route is to work within one’s own jurisdiction,” Borchert says. That begs the question, “Are water-planning regions the right geographic context in which to effect needed policy changes?”
Increased stakeholder involvement is good, Borchert grants, but she has observed that “the more diverse the group, the more guarded people can become,” reducing the number of actions that may be agreed upon. Other impediments are the lack of defined lines of communication, and of commitment between governmental entities. “Staff-to-staff conversations don’t filter up, or down, or sideways, or anywhere else,” she says, and in light of such confines, alleviating the effects of climate change may be undertaken more expediently with “small scale solutions that are implementable within the jurisdiction of the body that’s working on them.”
Steve Hernandez, a Las Cruces attorney and water specialist, can recall firsthand the year 1980, when the City of El Paso filed 266 applications to export groundwater from the Lower Rio Grande, initiating a legendary lawsuit over New Mexico’s embargo statute. Hernandez, a member of the defense team for the case, says, “That litigation caused regional water planning…It forced us to ask, ‘How do we protect water when we don’t know how much is there?’…Regional water planning became a population projection, with water use tied to that projection, and it served as a basis for our defense, which was that at a minimum, El Paso needed to leave us 40 years’ worth of water in southern New Mexico.”
Water conservation and public welfare were also integral to the protection criteria and as an expert witness on the subject in a case, Hernandez called Dr. Helen Ingram of the University of Arizona. Ingram’s testimony established that public welfare derives from public institutions that oversee water for the constituency of the state. “She envisioned groups—such as governments that have to plan for growth, and districts that have to deliver water— getting together, sorting out their issues, determining what’s in the best interest of that community for the future, and making hard decisions about water: Do we grow? Do we not grow? Do we live within our means? Do we import water? Do we allow it to be exported? And now that we have regional water planning,” Hernandez says, “I see that we still struggle with all those issues. We’ll never get total agreement in an area unless you’re driven there by litigation. That’s what happened to us… It gave us a common core to rally around; it made you sit down and listen to people who had other needs, and it made them listen to you.”
Another basin in the state where litigation forced regional water planning was in the Pecos. “Texas-New Mexico litigation forced us into a room with upstream junior users, upstream senior users, municipalities, all users, to say, ‘We have a common issue now.’ There were contentious meetings throughout that process, but what came out of it was a plan that recognized everybody had to give a little.” Recently, Hernandez says, two permit applications—San Augustin Plains and Berrendo—brought disparate members of another community together. “It was like watching the El Paso situation all over again. You had everybody in the town talking about it. ‘How do we protect ourselves? What did we do wrong? How does regional water planning help or hurt us? What do we need to do now?’ Those are tough questions in an area viewed as having excess water for its foreseeable future needs.”
As in El Paso in 1980, “It isn’t as simple as saying ‘the water is there’,” Hernandez declares. The way the resource is removed from an area can impact how entities like irrigation districts and municipalities deliver water to their constituents. It can also undermine hope for the future, land values, and the capacity of local governments to provide services. In short, exportation raises the issue of protecting the area of origin. “I think the legislature needs to take a hard look at areas viewed as having ‘excess water’, and put in protections, aside from what the state engineer may or may not do.” Unless large transfers become more of a partnership, with “buyin” on the front end, Hernandez says they will be “held up in the courts for years.”
And of course, new litigation continues to crop up. On January 8, 2013, the State of Texas filed an original action in the U.S. Supreme Court, charging that New Mexico “has allowed harm to occur to all of the beneficiaries of the Rio Grande Project,” including New Mexico’s own Elephant Butte Irrigation District. That same day, Carlsbad Irrigation District threatened to make a priority call on upstream neighbors along the Pecos unless signatories of the hard-won settlement agreement devise a new strategy for meeting the current shortfall.
John Kelly, of the Middle Rio Grande Conservancy District board of directors, believes the biggest challenge to regional water planning is the “disconnect between planning and implementation.” Although the Middle Rio Grande Region has a “great, citizen-developed grassroots plan, it runs into entrenched bureaucrats at various agencies, gets thumbed through, put up on a shelf, and ignored…Day-to-day and season-to-season business becomes the focus of the elected body, and long-term planning efforts, premises and goals are never discussed at the policymaker level.”
Kelly reports that regulatory impacts consume much of the MRGCD board’s time, for example, the new Biological Assessment and Biological Opinion for the Rio Grande silvery minnow. As a member of the Middle Rio Grande Endangered Species Collaborative Program, the conservancy has “devoted countless hours” to negotiation with the Bureau of Reclamation and Fish & Wildlife, but Kelly finds those discussions have been “ESA-driven, Fish & Wildlife-driven, and nobody has stepped back and looked at the regional water plan,” in which “protecting our bosque and keeping water in the river” was one of the most important elements derived from public involvement. “That has never come up at one of our board meetings; instead, it’s been this federal deal with the minnow.”
MRGCD board members also spent much of the last year modifying MRGCD water distribution and water bank policy, but “nowhere in those discussions were the premises and goals of the regional water plan brought up.” The review, Kelly says, focused on the “problem of illegal irrigation” and existing disconnects between state and MRGCD records regarding transfers, leasebacks, and dried-up lands. In respect for the private property right of pre-1907 owners, the board does not protest every transfer of water in the middle Rio Grande basin.
It did, however, protest the San Augustin Plains transfer, and Kelly wonders, “At what point should we begin looking at interbasin transfers here? At what point do they become contrary to the public welfare and the continued need for the district?” He also notes several essential capital improvements that will soon have to be included in the conservancy’s budget, specifically, long-deferred maintenance on El Vado Dam, and matching funds for the Corps of Engineer’s Socorro Levee Project. Neither does the agency have a program for upgrading the agricultural conveyance system, or for ensuring that water gets delivered where it’s actually needed.
Kelly believes that by accident, many of the board’s decisions are “right in line with the regional water plan policies…but we could do better.” He proposes tying Water Trust Board capital outlay to projects that have been identified and prioritized in regional water plans, and believes that the OSE should require metes-and-bounds surveys of all tracts from which water rights are transferred.
He acknowledges the pressure to suspend MRGCD water bank operations in light of the ongoing drought, and the need for some sort of “crash effort” to identify properties with senior water rights. “Right now, the only certainty we have is Prior and Paramount rights for the six Pueblos.” He also sees opportunity rather than calamity in two looming circumstances: (1) the advance of the saltcedar beetle, which he hopes will assist human efforts to restore the bosque to a more natural condition, and (2) the recent suit filed by Texas, which has the potential to transform ground and surface water management in the Rio Grande basin.
Peter Pino, of the Pueblo of Zia, cautions, “No matter what kind of plans you have, they never work out…The archaic, the simple, is going to prevail in the end, for no matter how much technology we have, or planning we do, there’s a power greater than the human race, and that is Mother Nature.” It is crisis that usually forces us to make important decisions, Pino says, and in doing so, we have to decide whether to act on behalf of ourselves, or for the good of the bigger society. “As Indian people we’ve always looked back three generations and forward three generations. How will the decisions we make today impact our ancestors, or the children yet unborn?”
Zia is the last water user on the Jemez River, a stream system under adjudication since 1983. In 1994, stakeholders in the valley bypassed the court process and agreed to share water in a very dry year. Afterward, negotiations proceeded until late in 2012, when the settlement discussions broke down and litigants returned to court. “One of the problems,” explains Pino, “is that the State of New Mexico is not a water owner, yet they were calling the shots…The amount of water the tribe was being offered wasn’t sufficient to sustain three generations into the future and beyond... We figured we only have one chance to divide that water pie, and if we settled for something less, it would make it impossible for future generations to exist on our homeland. Our forefathers chose that location because water from the Jemez River was available to irrigate their farmlands…but others moved in upstream from us, and whether they have water rights or not, if the resource is there, they’ll use it.”
Pino’s single visual aid—a 1920s photo of a Zia woman collecting seep water from the bed of the Rio Jemez—illustrates the result. “We find ourselves in this situation,” he says, “even though we don’t take water from the bottom of the river anymore because we have domestic wells. The river runs dry every summer, nine years out of ten. We know what it is to do without.”
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