By ALTA LECOMPTE
Las Cruces Bulletin
Last week Phil King, hydrology consultant to the Elephant Butte Irrigation District, was preparing his report for the February EBID board meeting scheduled for Wednesday, Feb. 8.
On his mind was the ever-present specter of continuing drought. But this month something else competed for his attention: the long-awaited special master’s final recommendations on Texas and New Mexico lawsuits over the right to use water from the Rio Grande.
“’Any day now,’ they’ve been telling us,” King said of the release of the final report on the dispute.
The report has been filed with the US. Supreme Court, which appointed the special master to make recommendations on the suits, King said.
He was not optimistic.
The preliminary report favored Texas’s claim, which could mean less water and a hefty fine for New Mexico.
“The Supreme Court almost always follows the recommendations of the special master,” King said.
New Mexico could face costly outcome
In its complaint filed in January 2013, Texas alleges New Mexico is violating the 1938 Rio Grande Compact by allowing surface water diversions and groundwater pumping below Elephant Butte Reservoir, according to a Bloomberg BNA report.
EBID delivers project water to New Mexico and Texas irrigators who hold federal contracts.
New Mexico in April 2014 moved to dismiss Texas’ claim, asserting that the complaints of Texas and the U.S., also a plaintiff, “rest on the incorrect notion that the Compact imposes a Texas state line delivery obligation and a duty on New Mexico to protect Rio Grande Project deliveries to the state line.”
New Mexico’s motion to dismiss the case argues that Article IV of the Compact requires the state to deliver water to a point 100 miles above the state line.
In 2016, the special master, Gregory Grimsal, filed a 273-page preliminary report recommending dismissal of a New Mexico’s complaint.
If the case continues, Grimsal would oversee a full-fledged trial — complete with extensive discovery — before the justices hear oral arguments, according to the Texas Tribune.
“If Texas ultimately prevails, it could receive more than just extra water. New Mexico could be forced to fork over hundreds of millions of dollars in damages, experts say,” the Texas Tribune stated.
Historically, Texas has received 43 percent of the water, with New Mexico getting 57 percent.
King also was preparing to update the board on the current water level in Elephant Butte Reservoir and the outlook for the approaching irrigation season.
“I will make no recommendation for an initial allotment at that time,” he said, anticipating the board meeting. “I will wait to see what the snow melt is going to look like.”
Elephant Butte Reservoir currently contains 250,000-acre-feet of water and stands at 12 percent of capacity, King said. In January 2016 the reservoir held 100,000 acre feet more than it does now.
He said there has been a “decent snowfall” in the Colorado and northern New Mexico mountains.
“The watershed in southern Colorado and northern New Mexico is well over average for January 30,” he said. “But if it quits snowing now this would not be a good year.” The National Resources and Conservation Service (NRCS) three-month outlook for the area is for warmer and drier than normal, he said.
King said aquifers are depressed due to the multi-year drought.
“We have too many straws in the water to keep everybody supplied,” he said.
Next steps for New Mexico
King said those concerned about the outcome of the New Mexico-Texas water cases have to get used to a hurry-up-and-wait scenario.
Once the special master’s final report comes out, “we will see how people will strategize to deal with the situation,” he said. King said the states — including the New Mexico attorney general and state engineer — as well as the U.S. , which is a party to the suit — and water users — need to pay attention to the report.
“I realize we have to face that any settlement solution will have to initiate with the water users in the lower Rio Grande,” he said. “The irrigation district works closely with the Texas irrigation district.”
He said he expects the two districts to continue to work together, and, in addition New Mexico has internal issues it has to address.
“We have to figure out how to slow water use and make the availability of water equitable,” he said.
King asserted surface and groundwater must be managed jointly as must industrial and agricultural use.
“It takes a lot of cooperation, but we’re used to it,” he said.
Alta LeCompte can be reached at email@example.com or 575-343-7478.