New Mexico has not met its obligations to deliver Rio Grande water downstream under the Rio Grande Compact among CO, NM, and TX. Over the past decade, our under-deliveries through the Middle Rio Grande to Elephant Butte have brought us from a substantial credit into a significant debit for the first time since 1990. If we continue the trend, New Mexico will violate the law. Texas will sue and it will cost New Mexicans – big time. The Legislature needs to address the situation before it is too late.
We cannot continue merely hoping each year that we will squeak through. With business as usual, we will surely lose that gamble – and the evidence indicates within a few years.
Each year, a majority of the water that flows into the Middle Rio Grande must be delivered on through the region for use downstream. The Rio Grande Compact requires New Mexico to deliver that water at Elephant Butte Dam. An elaborate accounting system compares annual delivery obligations with wet water deliveries and keeps track of annual and cumulative over-deliveries or under-deliveries at each year end.
The State has been allowing the Middle Rio Grande to regularly consume water that is obligated for use below Elephant Butte Dam, using up water that legally belongs to water users in southern NM, Texas, and Mexico.
In 2010, New Mexico’s accumulated credit was about 170,000 acre-feet. The trend has since gone steadily downward. At the end of 2019 we were 38,800 acre-feet in arrears. At the end of 2020, State agency experts are predicting that cumulative arrears will reach 85,000 acre-feet. The Compact allows a cumulative debit not to exceed 200,000 acre-feet, a limit our average annual under-deliveries since 2010 will soon exceed. New Mexico will then be in violation of the Compact. This is untenable.
We have a painful precedent. New Mexico allowed itself to violate the Pecos River Compact in the 1960s and 1970s. Texas sued. In 1982 the U.S. Supreme Court ruled in Texas’ favor. New Mexico was ordered to pay $14 million in penalties and to never again fail to meet its Texas delivery obligations. The Supreme Court appointed a special master to perform annual delivery accounting under the Supreme Court rules at the expense of the states. The Supreme Court did not tell NM how to comply; it ordered NM’s annual compliance and left it to NM to figure out how. Reliably delivering sufficient water to comply with the Court decree required significant compromise and expense. Implementation of a 2003 regional compromise agreement authorized by state law with the intent of gaining New Mexico’s permanent compliance has cost taxpayers about $200 million.
But it appears that the lessons of the Pecos River have been forgotten. The Middle Rio Grande recent annual average delivery shortfall is higher. Who knows what the penalty and the cost of non-compliance for a successful Texas lawsuit might be?
Equity and fairness among New Mexicans also are involved. More than half of the water released from Elephant Butte Dam is for New Mexicans. Therefore, a shortfall in deliveries due to overuse of water in the Middle Rio Grande not only violates our agreement to share the Rio Grande with Texas and Colorado, but also impacts the southern region of New Mexico.
New Mexico cannot afford to allow itself to continue teetering on the brink with no plan to ensure that its deliveries of water comply with the legal obligations.
In 2003 the Legislature directed that compliance with compacts is imperative, determined the State Engineer has the authority to limit water use in order for compact compliance purposes, and directed the State Engineer to promulgate rules to do so (NMSA 1978 § 72-2-9.1). The State Engineer started that work with the promulgation of general rules for administration in 2004 (NMAC § 19.25.13). These rules, now in effect, prefer agreements among water users to priority administration. The rules were upheld by the NM Supreme Court in 2012, overturning adverse rulings at the District Court and Court of Appeals. Since then, however, the State Engineer has neglected the topic of Rio Grande Compact compliance even though the Middle Rio Grande is using more water than its legal share, causing deliveries of water to be consistently inadequate to meet obligations.
The Rio Grande Compact does not affect or limit the rights of tribes, but the six Middle Rio Grande pueblos’ actual uses of water have been accounted as part of the Middle Rio Grande’s share of the river. Subject to meeting the Pueblos’ water rights, adhering to the Compact requirements must become the State’s highest water management priority. While tightening our belt might be uncomfortable, the State’s irresponsible failure to do so will be truly painful.
The Legislature should direct the Administration to pull us all back from the brink and create an ongoing buffer, well-away from the 200,000-acre-foot limit and the consequences that violating that limit would bring.
Relatively simple legislation should demand that the State Engineer establish the needed cushion to keep us away from the 200,000 acre-feet violation. For example:
The State of New Mexico declares that its first priority in allowing use of water in the Middle Rio Grande, other than the water to which the Middle Rio Grande pueblos are entitled, shall be to ensure that the State does not violate the Rio Grande Compact’s delivery requirements.
Whenever year-end accounting has shown New Mexico to have incurred a cumulative Rio Grande Compact debit that makes a violation of the Rio Grande Compact possible in the following year, the State Engineer shall take steps to reduce non-Native American water uses in the Middle Rio Grande region to ensure no shortfall in annual compliance with delivery obligations.
The State Engineer shall report quarterly to the Legislature on steps undertaken, their effect to date, the State Engineer’s current year compliance forecast, and any additional steps planned to ensure the cumulative debit does not violate the 200,000 acre-foot Rio Grande Compact debit limit.
New Mexico taxpayers cannot afford to continue risking the chaos, uncertainty, and cost of more U.S. Supreme Court litigation brought by NM’s failure to meet its unambiguous requirements to deliver water downstream. Let’s meet our obligations by taking action now!