{"id":629923,"date":"2018-09-28T07:00:46","date_gmt":"2018-09-28T13:00:46","guid":{"rendered":"http:\/\/nmpolitics.net\/index\/?p=629923"},"modified":"2018-09-30T19:34:19","modified_gmt":"2018-10-01T01:34:19","slug":"as-nms-water-situation-worsens-legal-battle-over-the-rio-grande-intensifies","status":"publish","type":"post","link":"https:\/\/nmpolitics.net\/index\/2018\/09\/as-nms-water-situation-worsens-legal-battle-over-the-rio-grande-intensifies\/","title":{"rendered":"As NM\u2019s water situation worsens, legal battle over the Rio Grande intensifies"},"content":{"rendered":"<div id=\"attachment_629927\"  class=\"wp-caption module image alignnone\" style=\"max-width: 771px;\"><img loading=\"lazy\" decoding=\"async\" class=\"size-large wp-image-629927\" src=\"http:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_2920-771x514.jpg\" alt=\"Rio Grande\" width=\"771\" height=\"514\" srcset=\"https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_2920-771x514.jpg 771w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_2920-336x224.jpg 336w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_2920-768x512.jpg 768w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_2920-1170x780.jpg 1170w, https:\/\/nmpolitics.net\/index\/wp-content\/uploads\/2018\/09\/IMG_2920.jpg 1200w\" sizes=\"auto, (max-width: 771px) 100vw, 771px\" \/><p class=\"wp-media-credit\">Laura Paskus \/ New Mexico Political Report<\/p><p class=\"wp-caption-text\">A storm brews near the Rio Grande in Albuquerque.<\/p><\/div>\n<p>Last winter, snows didn\u2019t come to the mountains, and the headwaters of the Rio Grande suffered from drought. In April, the river \u2014 New Mexico\u2019s largest \u2014 was already drying south of Socorro. And over the summer, reservoir levels plummeted.<\/p>\n<p>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.<\/p>\n<p>If New Mexico loses the case, Texas could seek damages of up to $1 billion, compensation for the more-than three million acre feet of water the state says it should have received over the course of more than a half-century. Not only that, but New Mexico could be forced to curtail groundwater pumping throughout the Rincon and Mesilla valleys, the hundred-mile stretch from below Elephant Butte to the United States-Mexico border.<\/p>\n<h3><b>\u2018Litigation is flowing\u2019<\/b><\/h3>\n<p>Looking at Elephant Butte Reservoir right now, which is only three percent full as of\u00a0<a href=\"https:\/\/waterdatafortexas.org\/reservoirs\/individual\/elephant-butte\" target=\"_blank\" rel=\"noopener\">Sept. 26<\/a>, it\u2019s easy to think that New Mexico doesn\u2019t have any water to send downstream. But it\u2019s the water below-ground that has been a point of contention between the two states. And the disagreements span the course of decades.<\/p>\n<p>Texas has long-complained that by allowing farmers to drill wells alongside the Rio Grande, New Mexico has siphoned off water that is hydrologically connected to the river, and should be flowing downstream to Texas under the Rio Grande Compact of 1938.<\/p>\n<aside class=\"module align-left half type-aside\">\n<h3>About this article<\/h3>\n<p>This article comes from\u00a0<a href=\"http:\/\/nmpoliticalreport.com\/881010\/as-nms-water-situation-worsens-scotus-battle-over-the-rio-grande-intensifies-en\/\" target=\"_blank\" rel=\"noopener noreferrer\">New Mexico Political Report<\/a>,\u00a0a nonprofit news organization\u00a0focused on promoting a greater public understanding of politics and policy in New Mexico. It\u2019s the third in a three-part series about the Rio Grande, its reservoirs and the U.S. Supreme Court battle over its waters.<\/p>\n<\/aside>\n<p>Then, more than a decade ago, drought motivated farmers in Southern New Mexico and west Texas to talk about doing things differently. With the wet years of the 1980s and \u201890s in the rearview mirror, they watched levels drop in Elephant Butte and Caballo reservoirs and talked about new ways to share water. In the end, Texas agreed to back off complaints about New Mexico\u2019s groundwater pumping, and New Mexico farmers agreed to share surface waters during dry times. In 2008, Elephant Butte Irrigation District (EBID) and El Paso County Water Improvement District No. 1 (El Paso No. 1) signed a new agreement with the U.S. Bureau of Reclamation. That\u2019s the federal agency that operates the Rio Grande Project and is responsible for storing water at Elephant Butte and Caballo for EBID, Texas and Mexico.<\/p>\n<p>But the states hadn\u2019t agreed to the new water sharing plan, and in 2011, then-New Mexico Attorney General Gary King sued Reclamation, saying the new plan sent too much water to Texas.<\/p>\n<p>Then, in 2013, Texas took the issue to the U.S. Supreme Court. It sued New Mexico and Colorado, alleging that New Mexico failed for decades to comply with the Rio Grande Compact by not regulating groundwater pumping.\u00a0<a href=\"http:\/\/nmpoliticalreport.com\/794156\/in-deep-water-u-s-supreme-court-to-decide-how-states-share-the-drying-rio-grande-and-new-mexico-could-lose-big\/\" target=\"_blank\" rel=\"noopener\">Earlier this year<\/a>, New Mexico was dealt another blow when the Supreme Court\u00a0<a href=\"http:\/\/nmpoliticalreport.com\/811284\/breaking-u-s-supreme-court-issues-opinion-on-texas-v-new-mexico-colorado\/\" target=\"_blank\" rel=\"noopener\">allowed the U.S. government<\/a>\u00a0to intervene in the case. According to the federal government, New Mexico has harmed its ability to deliver water under the compact and under the international treaty with Mexico.<\/p>\n<p>\u201cWe may be in a water drought, but the litigation is flowing down here,\u201d says Gary Esslinger, manager of EBID, who says he tries to keep a sense of humor through the litigation and the drought. EBID has roughly 8,000 farmers and includes about 90,000 acres of irrigable lands, though this year\u2019s low water conditions meant only about 75,000 acres were planted.<\/p>\n<p>\u201cElephant Butte sits in geographic New Mexico, so you would think Santa Fe would be protecting us, but when it comes to water accounting and federal accounting of water through the three states, we\u2019re in Texas,\u201d Esslinger says.<\/p>\n<p>That\u2019s because under the Rio Grande Compact, New Mexico doesn\u2019t deliver water across the state line, but to Elephant Butte Reservoir about 100 miles north of Texas. From there, Reclamation delivers Rio Grande Project water to Southern New Mexico, Texas and Mexico.<!--more--><\/p>\n<p>When the case ended up in the Supreme Court, EBID tried to intervene and become a party to the case. As Esslinger explains, the irrigation district is in a sort of limbo: it\u2019s in geographic New Mexico but \u201ccompact Texas.\u201d<\/p>\n<p>The Supreme Court denied that intervention, but the irrigation district did file an amicus, or friend of the court, brief. And recently, the new special master on the case,\u00a0<a href=\"http:\/\/nmpoliticalreport.com\/821522\/change-up-scotus-changes-special-master-on-rio-grande-water-battle-en\/\" target=\"_blank\" rel=\"noopener\">Judge Michael Melloy<\/a>, granted both EBID and El Paso No. 1 an \u201cenhanced level of participation,\u201d says EBID\u2019s attorney, Samantha Barncastle. That status allows the districts to take part in the ongoing discovery and deposition processes.<\/p>\n<p>Still frustrated that it\u2019s on the fringes of the legal dispute, even though it could affect their farmers so intimately, the district is increasingly focused on how agriculture can survive into the future, given constraints on surface waters, due to drought and warming.<\/p>\n<p>\u201cWe\u2019re not going to have the surface water we had in the \u201880s and \u201890s, so as an irrigation district we need to find out a way to survive to benefit the economy in Southern New Mexico,\u201d she says. \u201cIt\u2019s nice to rely on the surface water, but it\u2019s not materializing every year like it used to, or it\u2019s different than it used to be,\u201d she says. Sometimes precipitation comes later in the year, as rain instead of snow, or it falls below the reservoir and can\u2019t be captured for storage.<\/p>\n<p>\u201cAt this point, everybody needs to understand it\u2019s absolutely necessary to rely on the groundwater, but we have to do that in a responsible way,\u201d Barncastle says. \u201cWhat EBID would like to see happen is [to have] responsible limits on how groundwater can be used.\u201d<\/p>\n<p>EBID\u2019s farmers are looking for solutions, she says, not litigation. And\u00a0all the water users need to figure out what it means to have a resilient aquifer in Southern New Mexico. Municipal and industrial water users rely on groundwater, too, she points out. And if groundwater is the \u201csavings account\u201d \u2014 the water people draw upon when surface water isn\u2019t available \u2014 everyone needs to know their spending limits.<\/p>\n<p>\u201cWe\u2019re looking at, how do we make sure this area survives into the future, assuming we aren\u2019t always going to have the surface water available,\u201d says Barncastle. \u201cSomething\u2019s got to give, so what are the give points and who is going to participate? Our position is it\u2019s not just the farmers that should be cutting back and getting responsible about water use \u2014 it\u2019s everybody.\u201d<\/p>\n<h3>New Mexico\u2019s defense<\/h3>\n<p>Today, the state of New Mexico continues to defend itself against the claims from Texas \u2014 and now, also from the United States. In May, it also filed its own complaints against the other two parties.<\/p>\n<p>Among other<a href=\"http:\/\/media.ca8.uscourts.gov\/files\/smDocuments\/State%20of%20New%20Mexico's%20Counterclaims.pdf\" target=\"_blank\" rel=\"noopener\">\u00a0counterclaims<\/a>, New Mexico now says Texas pumps groundwater to the detriment of surface flows, and the United States acted outside its authority over the Rio Grande Project when it signed onto the 2008 Operating Agreement with EBID and the west Texas irrigation district.<\/p>\n<p>Moreover, New Mexico says that through the renegotiated operating agreement and groundwater pumping, the U.S. and Texas have both reduced New Mexico\u2019s water supplies and \u201cdeprived New Mexico of the equities and protections it bargained for when it entered into the [Rio Grande] Compact.\u201d<\/p>\n<p>In front of the Supreme Court, and in meetings with the special master, the state is represented by a contract attorney, Marcus Rael, Jr., from New Mexico Attorney General Hector Balderas\u2019 former law firm, Robles, Rael &amp; Anaya. That firm is assisted by the law firm Trout Raley, which is based in Denver.<\/p>\n<p>Last year, Balderas also announced a joint defense agreement with the New Mexico Office of the State Engineer, New Mexico State University, PNM, the New Mexico Pecan Growers Association, Southern Rio Grande Diversified Crop Farmers Association, the City of Las Cruces and Camino Real Regional Utility Authority.<\/p>\n<p>Deputy Attorney General Tania Maestas spoke with\u00a0<i>NM Political Report<\/i>\u00a0about the litigation\u2019s progress as the state prepares for discovery, works with its witnesses and coordinates with the New Mexico Interstate Stream Commission and private contractors on hydrological modeling of the lower Rio Grande.<\/p>\n<p>Maestas explains that each of the parties has until Feb. 1 to submit expert reports concerning the relationship between surface and groundwater in the Lower Rio Grande and the amount of water New Mexico has delivered downstream. In addition to studying historic conditions, experts are looking at what she called \u201csignificant changes\u201d in the area, including those related to drought and climate change, since EBID, El Paso No. 1 and Reclamation signed the 2008 Operating Agreement. \u201cWe\u2019re really looking forward to revealing through our expert reports all the changes that make the 2008 Operating Agreement inadequate,\u201d she says.<\/p>\n<p>It\u2019s unfortunate that EBID filed an amicus brief siding with the position of Texas, but Maestas says the Office of the Attorney General does not see EBID as its enemy.<\/p>\n<p>\u201cThe way Attorney General Balderas looks at this is we are all New Mexicans and we are all looking for a way to secure a more sustainable water future,\u201d she says. \u201cWe hope that ultimately, we are able to resolve this case amicably and with input from all of our lower Rio Grande partners, including EBID.\u201d<\/p>\n<p>After five years of hammering out details \u2014 like who the parties are and rejecting an earlier motion by New Mexico to dismiss the case \u2014 the court is going to start getting down to the real issues soon.<\/p>\n<p>\u201cWe are coming out swinging,\u201d she says. \u201cAlthough we are forced to defend this case\u201d \u2014 which was filed before Balderas was elected attorney general \u2014 \u201dthere are a number of facts and issues that will come out with this litigation that show the U.S. and Texas do not have clean hands.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"<p>New Mexico could be forced to curtail groundwater pumping throughout the Rincon and Mesilla valleys.<\/p>\n","protected":false},"author":1,"featured_media":629927,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[11],"tags":[284,147,2260,3272,116,277],"class_list":["post-629923","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-news-and-analysis","tag-climate-change","tag-environment","tag-texas","tag-u-s-supreme-court","tag-washington","tag-water"],"_links":{"self":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/629923","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/comments?post=629923"}],"version-history":[{"count":0,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/posts\/629923\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media\/629927"}],"wp:attachment":[{"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/media?parent=629923"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/categories?post=629923"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/nmpolitics.net\/index\/wp-json\/wp\/v2\/tags?post=629923"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}