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Water Litigation in the Lower Rio Grande | 24-1Water Matters!

Water Litigation in the Lower Rio Grande

The Rio Grande winds down from the San Juan Mountains inColorado to the Gulf of Mexico. It flows through the three States,Colorado, New Mexico, and Texas and forms the border between the

two countries, the Republic of Mexico [hereinafter Mexico] and the UnitedStates of America [hereinafter United States]. The land is arid or semi-aridand the water is vital to the lives, economies and environments within andalong its banks. The Rio Grande Project [hereinafter Project] was authorizedand built by the United States Reclamation Service in the early 20th centuryto collect the waters of the Rio Grande and to serve farmers in New Mexico,west Texas and Mexico with more regularized and fairly allocated flows forirrigated agriculture.1 Later in the late 1920’s and early 1930’s, Colorado,New Mexico and Texas negotiated the 1938 Compact that allocated thesurface waters among themselves.2

The water allocation issues are hotly contested in south-central New Mexicoand the surrounding area. The Doña Ana County economy is one of thefastest growing in the state.3 Project water allows the area’s economies basedon agriculture, education, commerce and defense/aerospace to develop andthrive. The population has been growing steadily and in 2011 rose above213,600.4 The area is a prime agricultural center for the state, producingpecans, peppers, onions, alfalfa, hay, cotton and other row crops.5 Thetourism industry and the water-related recreation at the Elephant ButteReservoir and the Caballo Reservoir are important to the entire state.6 TheNew Mexico State University [hereinafter NMSU] is one of the largestemployers of the area, draws thousands of students to live andstudy, and serves as the home of teaching, comprehensiveresearch, and public service - all of which fuel the local and stateeconomy and the local quality of life.7

Today, the river and those who depend on it face moreadministrative challenges in the face of shrinking water suppliesand increased population. These challenges have given rise totwo ongoing lawsuits: the Lower Rio Grande Adjudication,New Mexico v. EBID, et al., 96-CV-888 (1996) [hereinafterN.M. v. EBID) in the New Mexico Third Judicial District

Today, the river and those whodepend on it face more

administrative challenges in the faceof shrinking water supplies and

increased population.

“Even with its record ofsuccessful regulation andmature infrastructure anddiversion operations,water conveyed throughthe Rio Grande continuesto exhibit significant, andsometimes verycontentious, issues.”

Challenges and Opportunities forWater of the Rio Grande

M. Edward Rister, Allen W.Sturdivant, Ronald D. Lacewell,

and Ari M. Michelsen2011 Southern Agricultural

Economics Ass’nhttp://ageconsearch.umn.edu/

bitstream/113529/2/jaae433ip6.pdf

24-2 | Water Matters! Water Litigation in the Lower Rio Grande

Court [hereinafter adjudication court] andthe New Mexico v. United States, et al.,D.N.M. 11-CV-691 (2011) [hereinafterN.M. v. U.S.) in United States District Courtof New Mexico [hereinafter U.S. DistrictCourt]. A third possible suit was opened onJanuary 8, 2013, when Texas filed a motionin the U.S. Supreme Court, suing NewMexico over alleged Rio Grande Compactviolations. As of January 25, 2013, the U.S.Supreme Court had not agreed to hear thecase.8 This article lays out the history of theProject and issues and status of the twoactive cases.

The first case, N.M. v. EBID, is a state courtadjudication being undertaken to identifyand to formalize the scope and thedescription of valid water rights in the areabetween the Elephant Butte Dam and thestate line with Texas. The adjudication is oneof the largest in New Mexico and willdetermine water right claims in about14,000 subfiles - each of which deals withone or more water rights - and for about18,000 claimants. The adjudication courtand the parties are also working out thestream system issues: so-called because theirresolution will affect many if not all of theclaimants in the case. The court has or willdetermine the following stream systemissues: 1) the farm delivery requirement(FDR) and the consumptive irrigationrequirement [hereinafter CIR) for all crops;2) the groundwater rights of the ElephantButte Irrigation District [hereinafter EBID);3) the status and description of domesticwells; 4) the rights and the nature of therights of the United States in the Project; 5)the claims of those whose water rightspredate those of the Project; and 6) theclaims of the Nathan Boyd Estate.9

Adjudications are complex, expensive andlengthy proceedings.10 Some water rightclaimants worry that the case will cancel or

reduce their water rights. EBID is concernedbecause its members’ adjudicated waterrights make up the district’s entitlement fromthe Project and thereby protect its ability andresponsibility to deliver water to the 90,640acres within its boundaries.11 The claimantshold a general suspicion about anygovernment’s interest in their rights,preferring to manage their water withoutgovernmental oversight.12 The EBID, apolitical subdivision of the state, shares thissuspicion of federal and/or state interest inthe district’s ability to manage the surfacewater of the Project and deliver it to theirmembers. The adjudication of the waterrights, however, is required under the 1907New Mexico Water Code and gives the NewMexico State Engineer [hereinafter StateEngineer) the information necessary to meethis statutory obligations; that is, toadminister the existing water uses, topreserve the aquifer, to make informeddecisions about the future waterdevelopment in the area, to be ready toadministrate in times of shortage, and tomeet New Mexico’s Compact obligations.13

The second case, New Mexico v. UnitedStates, was filed on August 8, 2012 in theNew Mexico federal district court. The caseconcerns a 2008 Texas court settlement andan alleged violation of the calculation of NewMexico credit water under the Rio GrandeCompact by the Bureau of Reclamation.The settlement, titled the “OperatingAgreement for the Rio Grande Project,”[hereinafter Operating Agreement] wasnegotiated among EBID, El Paso CountyWater Improvement District No. 1[hereinafter EP No. 1] and the Bureau ofReclamation. The Operating AgreementSettlement ended a contract dispute, firstraised in 1979, that was the subject oflitigation in federal district court cases filedin Texas and New Mexico. The OperatingAgreement describes a written procedure fordividing Project water between the twoirrigation districts.14 New Mexico is suingthese settling parties. The issues include: 1)whether the 2008 Operating Agreementsettlement violated NEPA and other state

Adjudications are complex, expensive and lengthy proceedings.


and federal water statutes; and, 2) whetherReclamation unlawfully released NewMexico Compact credit water in violation ofthe Rio Grande Compact.

With respect to the Operating Agreement,EBID believes that it negotiated a fairallocation of the Project surface water whichtakes into consideration New Mexicogroundwater pumping which capturessurface water in the river as the water wasbeing delivered to Texas. EBID’snegotiations resulted in the groundwaterpumping development in New Mexico from1951 to 1978 being grandfathered in anddeemed not to interfere with the delivery ofwater to Texas. EBID also believesnegotiating the Operating Agreementsettlement headed off a legal battle betweenTexas and New Mexico in the United StatesSupreme Court [hereinafter U.S. SupremeCourt].15

The State of New Mexico believes that NewMexico farmers are not getting a fair share ofthe Project surface water and, as a result, thefarmers are pumping groundwater moreheavily. It is concerned the effects ofgroundwater pumping on both sides of thestate line are not being factored correctly inthe Operating Agreement. The State believesthat the Mesilla Valley aquifer is beingdepleted from the pumping and the reducedsurface water flows in the ditches is lesseninghistoric recharge. According to the State, theAgreement’s carryover provision reallocatesEBID’s water to Texas so that the NewMexico farmers and municipalities receiveless water than they should. Finally, NewMexico challenges Reclamation’s 2011 releaseof water to Texas that New Mexico claims asCompact credit water. New Mexico did notauthorize the release and asserts that therelease has and will adversely affect theaccounting of New Mexico’s water underProject and Compact operations, therebyundermining its sustainable water future.16

The question faced today is how to share ashrinking and erratic source of water inagricultural and municipal settings locatedacross many overlapping jurisdictions. The

water of the Rio Grande has been dividedthrough several agreements. The 1906Convention for Equitable Distribution ofthe Waters of the Rio Grande [hereinafter1906 Convention] between the UnitedStates and the Mexico defines each country’sshare of these waters.17 The Rio GrandeCompact allocates the United States’ portionamong the States of Colorado, New Mexicoand Texas. The Rio Grande Project dividesProject water between EBID and EP No. 1and provides for the delivery of Mexico’sportion identified in the 1906 Convention.The reservoirs store both Compact andProject water. The adjudication will resolveclaims and describe rights to use water bothin and out of the EBID. These agreementsand the adjudication provide theinformation and rules necessary for the State,the districts, the Compact Commissionersand the Bureau of Reclamation to manageavailable water, to protect the resource, andto administer shortages.

History of the RegionIn 1536 when the Spanish, led by AlvarNúñez Cabeza de Vaca, entered the Juarez,Mexico area, they found Indians irrigatingnearly 30,000 acres of maize, beans andsquash. The Spanish first established theirsettlements in the early 1600s and theEuropean population and agriculturegradually increased over the next 150 years.In 1827, following Mexican independencefrom Spain, El Paso was founded on thenorth bank of the Rio Grande. By the endof the 19th century, 50,000 people lived onboth sides of the river south of the NewMexico state line.18

When Spanish settlement began in NewMexico in 1598, eighty-one inhabited

The question faced today is how to share ashrinking and erratic source of water in

agricultural and municipal settings located acrossmany overlapping jurisdictions.


pueblos and their fields supported as many as100, 000 people along the Rio Grande.19

The European settlements grew slowly untilentry of the Denver & Rio Grande Railroadin the San Luis Valley of southern Coloradoin the late 19th century. By the last decade ofthe 1800’s, Colorado settlers had developedthousands of acres of farmland in the SanLuis Valley with extensive irrigation works.20

As water uses along the Rio Grandeincreased, shortages also increased, affectingfarmers as far south as El Paso and Juarez. In1888, the U.S. Geological Survey reportedthat the river went dry before it reachedthese border cities and, eight years later, theInternational Boundary Commissionreported that the annual river flows at theborder had decreased by 200,000 acre-feet.Mexico had long asserted a water right basedon earlier settlement and irrigation thatpredates the uses by European communitiesin the United States. Responding to reducedwater supplies at the border, Mexicopressured the U.S. State Department to takeaction so that it would receive the waternecessary for its senior right. The UnitedStates placed an embargo on thedevelopment of water supplies on publiclands in New Mexico and Colorado, toprotect existing deliveries in the south.21

Possible storage projects had long beendiscussed among interested citizens,governments and businesses in the area. Twoprojects were given serious consideration,one in each state. In 1893, Dr. Nathan Boydof New Mexico formed a private enterprise,the Rio Grande Dam & Irrigation Company,to build a dam and reservoir to supplyirrigation water to farm lands located in NewMexico’s Mesilla Valley. He planned to storespring flood flows and release themthroughout the drier summer.22 The

proposed works were not intended to serveMexico or west Texas, and would have likelymade international tensions worse. In 1895,the State Department approved the projectand construction began. Shortly thereafter,the State Department changed its positionon the project and otherwise stymied theproject by bringing lawsuits and blockingconstruction permits, eventually causing theproject to fail. Dr. Boyd’s heirs continue tosue the federal government over the failedproject and the government’s role in thatfailure into the 21st century.23

About the same time, El Paso Valley residentsdeveloped a plan for an international dam toserve farmers in west Texas and Mexico.They opposed the Dr. Boyd’s plan becausethey feared it would capture the flood flowsthey needed for their reservoir. The NewMexico farmers resisted the El Paso Valleyplan because they believed the proposedreservoir would flood a large area in southernNew Mexico. As upstream diversionscontinued to decrease local water supplies,the pressure to find a resolution to theproblems of water allocation between theStates and Mexico grew more acute.24

Then in 1904, the 12th InternationalIrrigation Congress, made up of engineers,government officials and the U.S.Reclamation Service [hereinafterReclamation Service] personnel, endorsedthe Service’s plan addressing the problem.The plan envisioned the Reclamation Serviceconstructing the Rio Grande Project, afederal reservoir and distribution system toprovide irrigation water to lands in NewMexico and Texas. The plan alsocontemplated delivering 60,000 acre-feet toMexico, provided a treaty with that countrycould be negotiated. That treaty - the 1906Convention - was ratified in 1906.25

Rio Grande Project FacilitiesWhen the Reclamation Service was createdin 1902, one of its first priorities was to solvethe New Mexico, Texas and Mexico waterproblem. In 1905, Congress extended theReclamation Act to El Paso Valley, thus

As water uses along the Rio Grande increased,shortages also increased, affecting farmers as farsouth as El Paso and Juarez.


allowing Texas residents to received Projectwater; authorized the construction of the RioGrande Project, including Elephant ButteDam; and directed that the apportionmentof the Project water would be based onirrigation surveys conducted by theReclamation Service. Subsequently, theElephant Butte Water Users’ Association andEl Paso Valley Water User’s Association wereformed. Later, the members of theseassociations reorganized into EBID in 1918and EP No. 1 in 1917. These organizationsformed to work with the ReclamationService on the operations and to pay for thecosts of the construction and the operationand maintenance of their respective parts ofthe Project. Each district’s payment wasbased on its irrigated acreage and the waterapportionment to it.26 In 1923, Congresschanged the name of the ReclamationService to the Bureau of Reclamation.27

The Project works include the reservoirs, thedams, the delivery system and the drains.The geographic area involved runs fromElephant Butte Reservoir in New Mexico,past the state line to just above FortQuitman in far west Texas. In 1906, theUnited States submitted Filing No. 8 withthe New Mexico Territorial Engineer for anappropriation of 730,000 acre-feet per yearand in 1908, submitted a second filing for allunappropriated water in the Rio Grande forthe Project. The Bureau of Reclamationbegan building the Elephant Butte dam in1908, completing it in 1916. Whencompleted, Elephant Butte Reservoir had acapacity of 2,638,000 acre-feet. As irrigationincreased in the New Mexico Mesilla Valley,seepage problems and a rising water tablemade construction of a drainage systemimperative to keep the fields viable. Between1917 and 1925, 457 miles of drains wereconstructed to resolve the problem.28

In 1938, Reclamation finished the CaballoReservoir. The reservoir is located twenty-two miles south of Elephant Butte Reservoirand has a capacity of 343,990 acre-feet.Caballo is used to control flood flows, tostore water released from the Butte in thewinter for hydropower generation, and to

store water Elephant Butte Reservoir can nolonger accommodate because of siltbuildup.29

Reclamation also completed AmericanDiversion Dam near El Paso in 1938. Thisdam is used to divert the last of EP No. 1’sproject water from the river. Water forMexico is diverted by the International Damwhich was built in 1918. This dam divertsRio Grande water into the Acequia Madre inEl Paso to be delivered to Mexico as requiredby the 1906 Convention. The AmericanDam and the 1918 International Dam arelocated just outside of the Project andoperated by the International Boundary andWater Commission.

Today, the facilities of the Rio GrandeProject include two storage dams, sixdiversion dams, 141 miles of canals, 462miles of lateral ditches, 457 miles of drainsand a power plant. The power plant wasbuilt at the Elephant Butte dam in 1940 andwas operated by the Project until it was soldto a private company in 1977. The Project’sirrigation system regularized the waterdelivery that has been vital to the economicdevelopment and growth of the farmingindustry and municipalities within andaround the Project.30

Water AvailabilityThe amount of water stored in the ElephantButte Reservoir has varied considerably overtime. Wet years prevailed duringconstruction, and by 1915, the Butte hadfilled sufficiently to begin storage anddelivery operations. Reclamation begantracking water measurements within theProject in 1915 and continues today. Usingthe collected information, it is able to charthistoric averages. For a long time, the

The Project works include the reservoirs, thedams, the delivery system and the drains. Thegeographic area involved runs from ElephantButte Reservoir in New Mexico, past the state

line to just above Fort Quitman in far west Texas.


reservoir levels remained above average.Then in 1936 - 1937 and again in 1940,they dropped to below average. InDecember 1940, the Butte was at a recordlow, but by June of 1941, it had refilledcompletely. These swings continuedthroughout the 1940’s and 1970’s period,during which water levels rose to historicaverages or above only five times. In the1950’s drought, the water supply in theButte dropped to as low as 10,000 - 20,000acre-feet. Through strict conservation, theplanting of drought tolerant crops, and thedrilling of more than individual 700 wells,the farmers were able maintain cropproduction. Full-supply conditions returnedand, between 1978 and 2002, the farmersenjoyed full allocations each year. The watertable, which dropped in periods of heavygroundwater pumping, returned to normallevels.31

By 2003, shortage conditions once againcaused the Elephant Butte Reservoir to dropbelow full-supply levels. The Projectdelivered reduced amounts of surface waterto the districts, and the farmers turned againto groundwater pumping to make up thedifference. As happened historically, theincreased groundwater pumping lowered thewater table, but this time when full-supplyconditions returned, the water table did notrecover. There are different views on whythis happened: perhaps the failure to recoverwas caused by the shortages, groundwaterpumping, other mechanisms or somecombination of some or all of them.32

AdministrationThe surface water and the groundwater inthe Rio Grande Project have a closegeohydrological connection and their userequires careful conjunctive management.

The Project surface water administration is acooperative endeavor among the Bureau ofReclamation, EBID and EP No. 1. Fromthe time the Reclamation Service made thefirst deliveries to the farms in 1915 until1978, the agency administered the storedsurface and the drain water throughout theProject as one unit without regard to thestate line. It released water from thereservoirs and delivered it to the farmheadgates in the states and to the AcequiaMadre for Mexico.33

The administration of the Project changedafter the districts paid off their constructiondebts to the United States in 1979-1980 andit is now operated as two units. The Bureauof Reclamation retained the ownership andthe control of the Elephant Butte and theCaballo dams, the two reservoirs and thediversion dams. Under the 2008 OperatingAgreement settlement, Reclamation notifieseach district of its allocation of projectsupply. Each district informs its membershipof the allocation and diverts its share at thediversion dams. The districts then deliverwater to the members’ farm headgates. Thetwo districts request releases of water from tReclamation. This change gives the districtsmore control over the management and thedistribution of their allocated water.34

The New Mexico State Engineer hasadministrative authority over thegroundwater in the lower Rio Grande Basin.This authority arose by operation of state lawwhen the Engineer “declared”35 the severalgroundwater basins beneath the lower RioGrande stream system between 1961and1982.36 In December 2004, the StateEngineer created the Lower Rio GrandeWater Master District to provide for the‘economical and satisfactory apportionment’and administration of groundwater in thelower Rio Grande stream system. The watermaster district includes the Hot Springs, LasAnimas Creek and Lower Rio Grandeadministrative groundwater basins. The StateEngineer also embarked on a program tohave all wells in the district metered exceptfor those which serve only one household or

The administration of the Project changed afterthe districts paid off their construction debts tothe United States in 1979-1980 and it is nowoperated as two units.


livestock. As of the spring of 2010, about2,500 wells had been metered.37

As a separate but related matter, theCompact Commission administers theCompact waters to ensure that each Statereceives its equitable share of the Rio Grandewaters. EBID management refers to thedistrict as being ‘in Compact Texas forpurposes of the Rio Grande Compact andsurface water, but in geographic New Mexicofor groundwater’.38

Allocation In 1905, Congress authorized theinvestigation and the construction of the RioGrande Project and studies of irrigable landslocated within it. Following the studies, theReclamation Service determined that theappropriate apportionment would consist ofsufficient water for 88,000 irrigated acres(later adjusted in 1937 to 90,640 irrigatedacres) in southern New Mexico and 67,000irrigated acres (later adjusted to 69,010irrigated acres) in western Texas. Based onthe ratio of irrigated acres, southern NewMexico would receive 57% and westernTexas would receive 43% of the availableProject water. The 1906 Conventionallocated 60,000 acre-feet a year of RioGrande flows to Mexico. This amount canbe reduced in times of “extraordinarydrought.”39

The Elephant Butte Reservoir stores bothCompact and Project water. The Projectwater is administered by the districts and theBureau of Reclamation and the CompactCommission has authority over the Compactwater.40 EBID is in Compact Texas forpurposes of the Rio Grande Compact andsurface water, but in geographic New Mexicofor groundwater.

The 1938 Compact: Eventually however, itbecame apparent that a water apportioningagreement between Colorado, New Mexicoand Texas was needed for the Rio Grande.The 1920’s expansion of agriculture in theMiddle Rio Grande and Colorado’s San LuisValley threatened to deprive the Project ofthe flows necessary to make its deliveries.

Between 1895 and 1925, the United Stateshad placed an embargo on the diversion ofwater from the Rio Grande to federal landsin Colorado and New Mexico to protect theriver’s water supply. By 1928 the States,through their appointed commissioners, hadopened talks with the goal of negotiating acompact to allocate Rio Grande surfacewater between them. The commissionersfirst put in place a temporary agreement in1929 which maintained the status quo andthereby avoided U.S. Supreme Courtlitigation while negotiations for a permanentcompact were underway. Then the GreatDepression tabled all activity until the end of1933.41

Work on the Compact restarted in 1933 andfinished in 1938 when the Compact wasratified. Key provisions include: 1) thecreation of a Commission to oversee theoperations of the Compact; 2) two gaugingstations to monitor deliveries by Coloradofor New Mexico and deliveries by NewMexico at Elephant Butte Reservoir forTexas; 3) development of a system of debitsand credits to account for variations; and 4)a release for the Project of 790,000 acre-feetfor accounting purposes. Believing that theProject operations divided the water for usewith the Project, the commissioners did notdevelop a delivery schedule for the areabetween the Butte and the Texas state line.42

In a year when New Mexico’s delivery to theElephant Butte Reservoir exceeds thatamount required by the Compact, the Statebuilds up a credit which can be saved orrelinquished to Texas. If Texas accepts thatwater, New Mexico can store more water inreservoirs upstream of the Butte in futureyears. This provision means that in dry yearsNew Mexico can more easily meet its

Eventually however, it became apparent that a water apportioning agreement

between Colorado, New Mexico and Texas was needed for the Rio Grande.


obligations to Texas and keep some waterflowing to the New Mexico farmers.43

The Rio Grande Project: The Rio GrandeCompact left Reclamation in charge of theallocation and delivery of “Usable Water”from the Butte to the districts and Mexicothrough the operations of the Project.Usable Water consists of all water in reservoirstorage with the exception of the Rio GrandeCompact credit waters belonging toColorado or New Mexico, and waterimported into the Rio Grande basin throughthe San Juan-Chama Project. The runoffwithin the Project and the water returned tothe river through the drains are alsoimportant to the Project’s supply.44

Until 1951, the Bureau of Reclamationdelivered an equal amount of water per acreto the farmers, as it was ordered. If it was awater short year, Reclamation wouldannounce the water allotment per acre forthat year. As the 1951-1975 drought cycleprogressed, the surface water supplydiminished and Reclamation needed todevelop a method of determining thedeliveries to the farmers and Mexico thataccommodated the shortage conditions. Apart of the analysis included determininghow much of the water amounted to a fulldelivery to the lands in the United States. Inthe early 1950s, Reclamation analyzed datafrom the period 1946 to 1950, anddetermined that a full allocation for eachacre was 3.0412 acre-feet. The allocationaccounted for the system’s losses andaccretions.45

In 1979-1980, the districts paid off theirconstruction debt to the United States andtook over the operation and the maintenanceof the irrigation and the drainage system,

giving them more control over theadministration of the surface water. At thattime, each district entered into a contractwith Reclamation. These contracts called forReclamation to develop an allocation andoperating plan which was later the subject ofthe 2008 Operating Agreement. The yearsof full-supply and a lawsuit with the City ofEl Paso over the New Mexico StateEngineer’s denial of 266 applications to drillwells in the Mesilla Bolson for water use inTexas delayed action on the allocationagreement.46

From the mid-1980’s until 2008, Bureau ofReclamation operated the Project usingallocation procedures that not been approvedby the districts. It allocated water usinglinear regression curves for the historicdelivery (D1) and historic diversion (D2) ofProject water. These curves are based on ananalysis of the release, the delivery ratios andefficiencies measured during the 1951-1978period. When Reclamation proposed usingthe D1 and D2 curves as the basis of anoperating agreement, the districts did notagree.47

During the full-supply years, the Bureau ofReclamation allocated 495,000 acre-feet toEBID, and 377,000 acre-feet to EP No. 1,thus maintaining the historic 57% - 43%split. When Reclamation made thesereleases, the combination of the waterreleased, return flows, tributary water anddrain water resulted in a total deliverythroughout the Project, on average, of about930,000 acre-feet.48 If a district did not callfor all its allotted water in a particular year,the remainder would be reclassified into thegeneral pool in the reservoirs and reallocatedbetween the districts the following year. Thisregime remained in place until 2008.49

The pressure to find a solution to theoperating procedures mounted when in 1997the United States filed a quiet title action inthe U.S. District Court in New Mexico todetermine the federal rights in the Project.EP No. 1 filed a counterclaim alleging aninequitable allocation of Project water sinceReclamation failed to take into consideration

Usable Water consists of all water in reservoir storage with the exception of the RioGrande Compact credit waters belonging toColorado or New Mexico, and water importedinto the Rio Grande basin through the San Juan-Chama Project.


the New Mexico groundwater pumping.50

The 1997 case was sent to mediation and theparties attempted to negotiate an operatingagreement. The mediation failed. The U.S.District Court dismissed the United States’quiet title action and EP No. 1’scounterclaim in 2001, deferring to the statestream adjudication to determine the rightsof the United States. However, it retainedjurisdiction in the case if any of the partiesbelieve their rights have not been adequatelyaddressed in the adjudication.51

The 2008 Operating Agreement: Whenwater-short conditions reappeared in 2003,the districts and the Bureau of Reclamationintensified their efforts to reach anagreement for managing the Project. For thefirst time, Reclamation had to administerwater during a drought in a two unit system.Adding to the problems, the operations datashowed a pronounced deviation from thehistoric D2 curve. Reclamation trieddifferent approaches to an equitable solution,but in 2007 EBID filed a lawsuit in federaldistrict court in New Mexico, and shortlythereafter, EP No. 1 filed a lawsuit in afederal district court in Texas concerning thedistricts’ objections to procedures thatReclamation had tried to implement.52 TheTexas rules of procedure mandatedimmediate mediation. EBID was aware thatTexas had hired a well known water rightlegal specialist to prepare a petition to theU.S. Supreme Court alleging a breach of theRio Grande Compact and requesting anequitable apportionment of all watersbetween Elephant Butte Reservoir and Ft.Quitman, Texas. EBID came to the tablebecause these cases tend to be resolved infavor of downstream state.53 The districtsand Reclamation crafted and signed anoperating agreement on February 14, 2008which will remain in effect until December31, 2050.54

The 2008 Operating Agreement describeshow the Bureau of Reclamation will handlethe accounting of usable water in theReservoirs, as well as the releases and thedistribution to the districts and to Mexico.The agreement bases the allocation to EP

No. 1 and Mexico on the historic riverperformance reflected in the D1 and the D2curves. EBID’s water allocation is based on anew “D3” method, in which the district isallocated whatever deliverable water is leftafter Mexico’s and EP No. 1’s allocations aremade. The D3 allocation method isintended to protect EP No. 1 from theeffects of New Mexico groundwaterpumping. EBID supported this allocationmethod to dissuade EP No. 1 from arguingfor a groundwater depletions allowancebased on groundwater pumping as of 1938,the date of the Compact. Instead, EBIDnegotiated the pumping baseline at the1951-1978 shortage condition whichgrandfathered in thousands of acre-feet ofNew Mexico groundwater pumping. TheOperating Agreement provides that anypumping depletions which exceed the 1951-1978 levels are to be offset by reducingEBID’s Project surface water allocation.55

The Agreement also includes for the firsttime, carryover accounts for EBID and EPNo. 1. Each district may carryover 60% ofits full-supply allocation from one year to thenext. Any carryover in excess of that amountis credited to the other district. TheAgreement also provides for a detailedOperations Manual, which was completedand released in 2010. Non-operationalbenefits to the districts include the dismissalof lawsuits they had filed, a reduced threat ofTexas filing the U.S. Supreme Court case, aninternal review of the operations of El PasoField Office, codification of allocation andoperational procedures and a provision thatallows procedures to be changed through aconsensus process on an annual basis.56 Mostrecently, changes have been made regardingcalculations of river efficiency due to droughtconditions and a credit to EBID for the City

When water-short conditions reappeared in2003, the districts and the Bureau of

Reclamation intensified their efforts to reach anagreement for managing the Project.


of El Paso Canutillo wellfield pumpingimpacts on EBID.57

The Elephant Butte Reservoir stores bothCompact and Project water. The Projectwater is administered by the districts and theBureau of Reclamation and the CompactCommission has authority over the Compactwater.58 EBID is in Compact Texas forpurposes of the Rio Grande Compact andsurface water, but in geographic New Mexicofor groundwater.

AdjudicationIn 1980, the City of El Paso’s filedapplications with the New Mexico StateEngineer to develop wells in the MesillaBolson groundwater basin. EBID protestedthe applications on the basis that theproposed uses would threaten senior waterrights in New Mexico. In 1986, EBID fileda complaint to initiate a water rightsadjudication in the New Mexico ThirdJudicial District Court in Doña Ana County.The district took these actions to protectNew Mexico water rights by formallyestablishing their amounts and priorities,thereby providing a basis for showing thelocal demand upon the area’s groundwaterresources and for informed decision-makingin the new use application process and tostop the State Engineer from issuing anymore permits until the adjudication wascompleted.59

Between 1986 and 1993, the adjudicationcase shifted between state and federal courtsas the parties litigated issues about the propercourt; whether the State Engineer was aproper party; and, whether under N.M.S.A.1978 § 72-4-17 the stretch of the RioGrande between the Elephant Butte Damand the state line constituted a stream systemfor purposes of state law and the McCarran

Amendment. The McCarran Amendment isa federal act that provides a waiver of UnitedStates sovereign immunity so that it can bejoined in “adjudication of rights to the use ofwater of a stream system or other source” instate court.60 The United States resistedbeing joined in the Lower Rio Grandeadjudication, arguing that the stretch of theriver involved in the case did not constitute a“stream system” for McCarran purposes.Without the United States, the adjudicationwas not feasible because of its interests in theProject. The New Mexico Court of Appealsheld that the case could be heard in DoñaAna County, the State Engineer could be aparty, and because how water is allocatedbetween States in the 1938 Rio GrandeCompact, the stretch of the Rio Grandefrom Elephant Butte to the New Mexico-Texas state line was properly considered astream system for the purposes state andfederal law.61

Subfile Determination: In December of 1997,the State re-filed the adjudication suit in thestate court in Las Cruces.62 Since that time,the work of the court and parties has beendivided into 2 general sections: 1) theindividual water claims known as subfilesand 2) the stream system issues. Subfileorders resolve issues between the State andthe water right claimant, but are still subjectto challenge from other water right holdersin a subsequent part of the case known asinter se. 63

As of October 1, 2012, the State hasidentified slightly fewer than 14,000 subfilesand over 18,000 claimants. The Office of theState Engineer [hereinafter OSE] isresponsible for the technical informationabout the claims and publishing it in ahydrographic survey.64 The State’s attorneysattached to the OSE join the claimants tothe case, work the subfiles by preparing andsending out offers of judgment, informallynegotiating with claimants who object to theoffers and, if necessary, participating informal mediations and trials. Very few of thesubfiles progress to mediation or trial. As ofNovember of 2012, the State has made legalservice upon approximately half of the

In 1986, EBID filed a complaint to initiate a water rights adjudication in the New Mexico Third Judicial District Court in Doña Ana County.


claimants in the case and around 5, 500subfiles have been fully adjudicated.65

Stream System Issues: In October of 2007,the adjudication court entered an orderdescribing the procedures for determiningstream system issues and requiring the Stateto join all remaining claimants so that theywould be bound by any future decisions.66

Stream system issue affect all or a largenumber of parties in the adjudication.Joinder was accomplished in a year and theparties proceeded to identify four streamsystem issues and one expedited inter se issue.The court and the parties have pursued theseissues while the State continues, on a limitedbasis and as staffing permits, to address theadjudication of subfiles.67

The first stream system issue (commonlyreferred to as “issue 101”) involved definingthe consumptive irrigation requirements[hereinafter CIR] and farm deliveryrequirements [hereinafter FDR] for all crops.CIR is “the quantity of irrigation waterexclusive of precipitation, stored soilmoisture, or ground water that is requiredconsumptively for crop production.” 68 FDRis “the quantity of water, exclusive ofeffective rainfall, that is delivered to the farmheadgate or is diverted from a source ofwater which originates on the farm itself,such as a well or spring, to satisfy theconsumptive irrigation requirements of cropsgrown on a farm in one calendar year.”69

Determining these factors occurs in all waterright adjudications and is necessary todetermine one of the statutory elements ofan irrigation water right: the amount ofwater which can be applied to each irrigatedacre. These requirements are usually basedan averaged amount of water required togrow the types of crops, soil conditions andelevation found in the area.70

This issue arose out of a settlement betweenthe New Mexico Pecan Growers [hereinafterNMPG) and numerous other partiesregarding to the irrigation requirements ofmature pecan orchards and the conditionsapplying to the requirements. In 2008, theadjudication court entered an order

approving the settlement. In 2009, the courtentered an amended order which expandedthe issue to include irrigation requirementsfor all crops in the lower Rio Grande basin.The main parties participating inconsideration of this stream system issueincluded the state, EBID, the New MexicoPecan Growers, and the Southern RioGrande Diversified Crop FarmersAssociation who represent farmers growingrow crops such as chiles and onions.71

Pecans are an important crop in the lowerRio Grande area and they require more waterthan most other crops to thrive. In 2006acting under the general Active WaterResource Management Regulations[hereinafter AWRM], the State Engineerissued proposed Lower Rio Grande AWRMregulations which recommended a FDR of4.0 acre-feet per acre. The pecan growersargued for a higher FDR, based on NewMexico State University studies showing thatpecans require 4.5 to 7 acre-feet annually,depending on soil type. The DiversifiedCrop Growers wanted equal treatment, whilethe State recommended determining oneFDR for pecans and a second for all othercrops. 72

The challenge was to find an equitable andcrop-sufficient solution to the amount ofwater per acre that would not run afoul ofthe Rio Grande Compact and the RioGrande Project operations. In June of 2011,the main parties advised the adjudicationcourt that a settlement had been reached.On August 22, 2011, the adjudication courtentered its Final Judgment setting forth FDRand CIR amounts for all crops in the NewMexico Lower Rio Grande Basin as well asthe CIR amounts for irrigation rightstransfers to irrigation or non-irrigation

The challenge was to find an equitable and crop-sufficient solution to the amount of water per

acre that would not run afoul of the Rio GrandeCompact and the Rio Grande Project operations.


purposes. The Judgment also provided timefor the parties to “prove up” an entitlementto an additional acre-foot for the FDR, basedon historic beneficial use. The State’sevaluation of the evidence submitted byclaimants is under way.73 Since theJudgment was not appealed, the water rightelement concerning the amount of water tobe applied to each irrigated acre has beenestablished.74

The second stream system issue (commonlyreferred to as “issue 102”) addressed EBID’sclaim to underground waters for 90,640acres of its members’ lands. Followingsuccessful negotiations between the State andEBID, the court entered a Stipulated SubfileOrder on October 4, 2010 adjudicatingEBID’s groundwater rights associated withfive deep wells drilled in 1973. EBID’s totalentitlement from the five wells is capped at9,500 acre-feet. This water is intended tosupplement members’ surface rights in timesof shortage.75

The third stream system issue (commonlyreferred to as “issue 103”) is to determine thepriority, transferability, and beneficial useelements of domestic well water rights. Thecourt has deferred the scheduling in thismatter.76

The fourth stream system issue (commonlyreferred to as “issue 104”) is to determine therights and interest of the United States in theRio Grande Project. The United Statesclaims include rights: 1) to enough water tomeet the needs of the Project; 2) to divert,store and impound surface waters of the RioGrande in an amount of 2,638,860 acre-feetfor Elephant Butte Reservoir and 242,990acre-feet for Caballo Reservoir; 3) tocontinuously fill and refill the reservoirs; 4)to release sufficient water from storage tomeet the irrigation demands of the Projectand Mexico; and 5) to the delivery of waterat certain points within the Project systemincluding return flows, surface water orgroundwater.77

For case management purposes, the adjudica-tion court has segmented the United States’claim. When one segment is completed, the

court and the parties decide what should beaddressed next. In the first sub-issue, theUnited States claimed that as a matter of law,it is entitled to water from both surface andrelated groundwater for the Project. In2012, the adjudication court denied thatclaim, holding that the United States hasonly established a surface right under NewMexico state law and stating that the issue ofthe status and quantity of return flows in theProject should be determined administra-tively.78 Had the United States’ claim pre-vailed, the federal government could haveexercised more control over the water andconjunctive management of the water in thelower Rio Grande, to the detriment of theauthority of the State Engineer.79 In Octoberof 2012, the adjudication court set theschedule for litigating the issues of amountsof water and priority dates for the UnitedStates’ Project right.80

The Boyd Estate: On February 1, 2011, theadjudication court initiated an expeditedinter se proceeding on the claims of theEstate of Nathan Boyd. The Boyd Estatemade the following claims:

1. A right to divert 506,720 acre-feet of bi-annual recharge, with a priority date of1894. This right was intended to servefarmers and other water users in theRincon, the Hatch, the Mesilla and ElPaso Valley, and to provide forhydroelectricity generation andrecreation.

2. Rights to the Elephant Butte and theCaballo Dams, which the Boyd Estateclaims derived from the Secretary of theInterior’s 1895 approval of its proposedproject.

3. A right to deliver irrigation water tofarmers with pre-existing water rightson the Doña Ana, the Mesilla and theLas Cruces Community Ditchesthrough the Fort Seldon/ Leasburgcanal and diversion.

4. A right to deliver irrigation water tolands that were not yet served throughthe Fort Seldon /Leasburg canal anddiversion, with a priority of 1987.


5. A right to deliver irrigation water to thefarmers in the Rincon and the Hatchvalleys in the Doña Ana and the Sierracounties through the West Side or thePercha diversion and canal, with apriority date of 1894.

6. A right to deliver irrigation water to thefarmers in the Lower Mesilla Valley viathe Santo Thomas Diversion, or theWest Side Canal.81

In February 2012, the adjudication courtentered an order granting several motions todismiss these claims holding that it is boundby prior decisions in other courts on thesematters. Thus, “the Boyd Estate does notstate a cognizable claim to water rights inthis adjudication.”82 In April 2012, theNathan Boyd Estate filed its notice of appealwith the New Mexico Court of Appeals.83

As of November 9, 2012, no briefing or oralarguments have been scheduled.84 Dr.Nathan Boyd’s family has pursued its claimsthrough many courts since the late 1890’S.If the Boyd Estate were to win on thoseclaims after many years of litigation, theownership, operations and management ofthe Project would be profoundly affected,and significant monetary damages may beowed.

Adjudication Progress: Significant progress hasand is being made in the water rightsadjudication. For example, in November of2009, Reclamation and the State agreed toadjudicate the amount of acreage forindividual claims according to EBID’sassessment acreage records. This agreementresolved large numbers of objections byirrigators to the State’s offers of judgmentwhich proposed using actual irrigatedacreage. The water rights of large users arebeing determined. Subfile orders have beenentered for the majority of the City of LasCruces’ water rights and the remaining rightsare being negotiated. Subfile orders havebeen entered for the majority of NMSU’swater rights and the remaining rights arebeing negotiated. Inter se challenges fromother water right holders, if any, remain tobe heard in both instances. The City of ElPaso’s irrigation water rights in New Mexico

are being negotiated.85 Successfulnegotiations result in locally crafted solutionsto issues which could have taken years tolitigate and give the local players much morecontrol over the resulting solutions.

Operating Agreements and DisagreementsShortly after the announcement of theOperation Agreement in 2008, the State ofNew Mexico began to have concerns whichrevolved around EBID’s Project allocation infull-supply years and related groundwaterdepletions. Under the Agreement, EBID’sProject surface water allotment is calculatedfrom the deliverable water remaining afterthe allotments for EP No. 1 and Mexico areidentified. This method is intended toaccount for the groundwater depletions tothe system caused by pumping in NewMexico. According to the State, the EBIDfarmers are also unfairly absorb the lossesfrom Texas pumping.86 The district respondsthat the negotiated solution gave it adepletions baseline derived from the 1951-1978 condition rather than the 1938condition and avoided U.S. Supreme Courtlitigation. EBID notes that, in addition toTexas depletions, the district is also carryingdepletions by New Mexico pumpers locatedoutside the district.87

Then, New Mexico and Texas could notreach an agreement about evaporation lossesin Elephant Butte Reservoir that affected thecalculation of a relinquishment of NewMexico’s Compact credit water. Over NewMexico’s objections, the Bureau ofReclamation made the evaporationcalculation and subsequently released about33,000 acre-feet of the Compact credit waterto the Project.88

Shortly after the announcement of the OperationAgreement in 2008, the State of New Mexicobegan to have concerns which revolved around

EBID’s Project allocation in full-supply years andrelated groundwater depletions.


On August 8, 2011, the New MexicoAttorney General sued the Department ofInterior and the Bureau of Reclamation inthe U.S. District Court of New Mexico, inNew Mexico v. United States, seeking to havethe 2008 Operating Agreement invalidatedand a permanent injunction issuedpreventing its use.89 The districts have beenjoined and the City of Las Cruces hasintervened on the side of the State of NewMexico to request the court to compel theBureau of Reclamation to conduct thenecessary studies to ensure that the area hassustainable water sources for the long term.90

The federal court denied, without prejudice,the Middle Rio Grande ConservancyDistrict’s [hereinafter Conservancy] motionto intervene on the credit water issue. TheConservancy filed a motion to reconsiderand awaits the court’s decision.91

New Mexico alleges that the 2008 OperatingAgreement constitutes a major change to theoperations of the Project resulting in areallocation of more than 150,000 acre-feetof water each year from New Mexico toTexas and Mexico, in violation of the RioGrande Compact, the Reclamation Act andthe state water law; that Reclamation did nothave the authority to unilaterally release orreduce the State’s Compact credit water; and,that Reclamation did not fully address theenvironmental impacts during the NEPAprocess.

The State asserts that Reclamation nowreallocates 170,000 acre-feet of EBID surfacewater supplies to EP No. 1 in full-supplyyears and that EBID’s percentage of Projectwater has changed from the historic 57% to

about 38%. It claims that EBID membersnow receive one third less water that theyreceived historically. The State calculates thevalue of that reallocated water to be in themillions to billions of dollars.92

EBID responds that historically,Reclamation’s allocation methods did nottake into account groundwater pumping andthe 2008 Operating Agreement’s allocationmethods do. The district asserts that in spiteof the State’s claims of monetary losses,agricultural economic production hasincreased since the implementation of theAgreement. In addition, it claims that theapparent recent disparity in allotments is theresult of EP No. 1 calling for its carryoverwater from the previous year. The State,according to EBID, is counting the samewater multiple times. In addition, EP No. 1allotment includes return flows from theCity of El Paso treatment plants. Carryoverwater is allowed for the first time under theAgreement. In the past, that water would beput back into the general pool andreallocated to both district the followingyear. This new operational rule is importantto EP No. 1 because the district cannot turnto groundwater sources as EBID does in drytimes. The carryover water in ElephantButte Reservoir answers that need.93

The State claims that since EBID receivesless surface water under the OperatingAgreement, its farmers will increase theirgroundwater pumping to get 4.5 acre-feetper acre to their crops even in full-supplyyear. Since less water is running through theditches, less recharge is entering the aquifer.Under these conditions, the aquifer is takinga double hit: more water pumped out andless water percolates in. During a shortagecondition, the effects are magnified. TheState believes that EBID’s current lowallotments are produced by the OperatingAgreement and exacerbated by the shortagecondition. 94

EBID responds that it employs a strategy ofusing surface water when it is available andreserving groundwater for times whensurface water is not available. Since 2008,

On August 8, 2011, the New Mexico AttorneyGeneral sued the Department of Interior and theBureau of Reclamation in the U.S. DistrictCourt of New Mexico, in New Mexico v. UnitedStates, seeking to have the 2008 OperatingAgreement invalidated and a permanentinjunction issued preventing its use.


the district has received about 100,000 acre-feet from EP No. 1’s excess carryover water.This carryover has eased New Mexicopumping in the district. EBID believes thatits current low allotments are a resultprimarily of the drought/ shortageconditions.95 EBID believes that theOperating Agreement benefits both districts.It gives the water management flexibilityEBID needs and provides EP No. 1 with anincentive to conserve water that it needs. Thedistrict reports that the Agreement is a ‘livingdocument’ and it has and will be adjustedannually as problems arise. 96

New Mexico alleges that Reclamation hasreallocated the State’s Compact credit waterand that only the Rio Grande CompactCommission has the authority to take suchan action. As a result, Reclamation’s decisionto release New Mexico’s Compact creditwater deprives the Middle Rio Grande usersof the right to store water upstream,pursuant to storage limitations in theCompact.97 Formal relinquishment of thewater to Texas would have preserved thatright. As a result of the release of the creditwater, the Compact Commission and itsadvisors are unable to agree to the 2011credit water accounting.98

New Mexico also alleges that the Bureau ofReclamation did not fully address theenvironmental impacts in the NEPA processand that an EIS analysis that looks at 5 yearshorizon is inadequate in this case.99

In November of 2013, the U.S. DistrictCourt heard argument on motions to dismissall or part of the case before it. No decisionshave issued as yet. One of the motionsrequested a mediator, but, the State haswithdrawn that motion. All the parties wereawaiting a decision on what is left to litigatewhen Texas elevated the controversy over theallocations of Rio Grande water betweenTexas and New Mexico to the U.S. SupremeCourt. The Court has taken no action onTexas’ motion to file its Complaint.

ConclusionThe debate in the case is about the shape ofNew Mexico’s water future in the lower RioGrande, who will manage the water, andwhat is the best way to do it. The issuesaround how to share water, a limitedresource, are made more critical in the face ofclimate change and/or prolonged droughtand growing populations.100 The Compactallocates surface water between States, but issilent on groundwater. The 2008 OperatingAgreement is not acceptable to the State ofNew Mexico. It is, however, acceptable toTexas because it addresses the issue ofgroundwater.

Other questions have been asked about howNew Mexico, the districts and the Bureau ofReclamation will conjunctively manage thesurface and groundwater over which theyhave authority; how will their decisions affectother residents in the three state area andMexico; and, do these parties with a longhistory of litigation need to continue alongthat course. The Project’s irrigation seasonlasted only a few weeks this year, when infull-supply years it lasts for the full irrigationseason. Farmers below the Butte have beenincreasing their groundwater pumping at arapid rate. The aquifer has dropped since2003 and did not show the expected rates ofrecovery in the following full-supply years.

Under these drought and shortageconditions, can the aquifer and the rest ofthe Rio Grande stream system be maintainedat levels necessary to support agriculture,municipal and other uses that make up theeconomy and lifestyles of south central NewMexico? How long will those uses besustainable and what will happen in times ofgreater shortage? These kinds of complexquestions are best resolved in negotiationthan in litigation and the opportunity isbefore us.101


Sources Consulted and Other Contributors1 Filiberto Cortez, Reclamation, Rio

Grande Project 1905-2009, WATER

EDUCATION FOUNDATION,http://www.watereducation.org/userfiles/09BorderGovernorsCortez.pdf,[hereinafter Project] [presented atXXVII Border Governors Conference,2009] (last visited Jan. 23, 2013); BriefHistory of Bureau of Reclamation,BUREAU OF RECLAMATION HISTORY 4,http://www.usbr.gov/history/2011NEWBRIEFHISTORYV1.pdf [theReclamation Service became the Bureauof Reclamation in 1923] (last visitedJan. 11, 2013).

2 Douglas R. Littlefield, The History ofthe Rio Grande Compact of 1938, N.M.WATER RESOURCES RESEARCHINSTITUTE [hereinafter WRRI],http://wrri.nmsu.edu/publish/watcon/proc44/littlefield.pdf [presented atThe Rio Grande Compact: It’s the Law!,44th New Mexico Water ConferenceDec. 2-3, 1999].

3 Headwater Economics, Study of DonaAna County, ORGAN MOUNTAINS

DESERT PEAKS NATIONAL MONUMENT

(2012), http://www.organmountains.org/creating-jobs/headwaters-economics-study (last visited Jan. 11,2013).

4 Doña Ana County, NM, U.S. CENSUS

BUREAU, http://quickfacts.census.gov/qfd/States/35/35013.html (last visitedJan. 11, 2013).

5 Agriculture, Las Cruces on the Move,VILLAGE PROFILE, http://www.villageprofile.com/newmexico/lascruces/17/topic.html (last visited Jan. 11, 2013);Diana Alba Soular, New Mexico PecanCrop Ranks No. 2 in Size; Eddy CountySecond in State, LAS CRUCES SUN-NEWS,Aug. 24, 2012, http://www.currentargus.com/ci_21391370/new-mexico-pecan-crop-ranks-no-2-size.

6 Headwater Economics, supra.

7 About NMSU, NEW MEXICO STATEUNIVERSITY, http://www.nmsu.edu(last visited Nov. 15, 2012).

8 Texas v. NM, (U.S. Jan. 8, 2013) (CVNo. 22O141 ORG); John Fleck, Stuff IWrote Elsewhere: Original Jurisdiction,JFLECK AT INKSTAIN, (Jan. 9, 2013),http://www.inkstain.net/fleck/2013/01/stuff-i-wrote-elsewhere-original-jurisdiction; Press Release, TexasCommission on EnvironmentalQuality, Texas Files Complaint AgainstNew Mexico with U.S. Supreme Court,WILLIAMS MITCHELL LAW (Jan. 8,2013), http://www.mitchellwilliamslaw.com/wp-content/files_mf/scan_attachment3004243.pdf.

9 LRG Adjudication Stream System Issues,NEW MEXICO COURTS,https://lrgadjudication.nmcourts.gov/index.php/stream-system-issues (lastvisited Jan. 23, 2013).

10 New Mexico Administrative Office ofthe Courts, Water Rights Adjudications,N.M. ACEQUIA COMMISSION (Sep. 14,2007), http://www.nmacequiacommission.state.nm.us/Adjudication/AOC-AdjudicationWhitePaper.pdf;Bridgette Buynak, WATER MATTERS!UTTON CENTER, 4-1 (2012),http://uttoncenter.unm.edu/pdfs/Water-Matters-2012/2012_water_matters_final_full-publication.pdf;Paul Bidderman, IPL Conducts WaterAdjudication Study, UNM SCHOOL OF

LAW, http://lawschool.unm.edu/news/archives/2009/june/ipl.php (lastvisited Nov. 26, 2012).

11 December, 2009 Monthly Report Filedby the Court December 23, 2009, N Mv. EBID, 3rd Judicial District Court,OFFICE OF THE STATE ENGINEER[hereinafter OSE], http://www.ose.state.nm.us/PDF/Legal/LRG-Adjudication/2009-12-Report.pdf;Gary Esslinger, About EBID:


Recommended Reading from the GeneralManagement, EBID, http://www.ebid-nm.org/general/About_EBID/index.shtml (last visited Nov. 21, 2012).

12 Gary L. Esslinger, Lower Rio GrandeProject Operating Agreement: Settlementof Litigation 6, http://wrri.nmsu.edu/publish/watcon/proc53/esslinger.pdf presented at Surface WaterOpportunities in New Mexico, WRRI(Oct. 2008); Telephone Interviewswith Claimants, JOE M STELLOMBUDSMAN PROGRAM, UTTON

CENTER, UNM SCHOOL OF LAW(2007-2012); William Hume, WaterDeal Doable if State, Feds Cooperate,ALBUQUERQUE JOURNAL (Sep. 16,2012), http://www.abqjournal.com/main/2012/09/16/opinion/water-deal-doable-if-state-feds-cooperate.html.

13 Adjudications, OSE, http://www.ose.state.nm.us/legal_ose_adjudication.html (last visited Nov. 21, 2012);N.M.S.A. 1978 §§ 72-2-1, et seq.

14 Email from Steven L. Hernandez,attorney for EBID, to author (Dec. 17,2012) (on file with author).

15 Id.; Steven L. Hernandez & J. PhilipKing, Briefing on the 2008 Compromiseand Settlement Agreement Between theUnited States, Elephant Butte IrrigationDistrict and El Paso County WaterImprovement District No. 1, N.M.LEGISLATURE, http://www.nmlegis.gov/lcs/committeedetail.aspx?CommitteeCode=WNR [presented before theLegislative Interim Committee onWater and Natural Resources August27, 2012]; Scott A. Verhines, P.E.,State Engineer & Estevan R. Lopez,P.E., Director of the ISC, N.M.LEGISLATURE, http://www.nmlegis.gov/lcs/committeedetail.aspx?CommitteeCode=WNR [presented at the InterimWater and Natural ResourcesCommittee, June 26, 2012].

16 Id., Stephen Farris, Esq. & Sarah Bond,Esq., Briefing for the Legislative InterimCommittee on Water and NaturalResources http://www.nmlegis.gov/lcs/committeedetail.aspx?CommitteeCode=WNR [presented to N.M.Legislative Interim Water and NaturalResources Committee, Aug. 27. 2012].

17 Convention [for the] EquitableDistribution of the Waters of the RioGrande, U.S. – Mexico, May 21, 1906,34 Stat. 2953 [hereinafter 1906Convention].

18 Robert Autobee, Rio Grande Project,BUREAU OF RECLAMATION 3-6 (1994),http://www.usbr.gov/projects//ImageServer?imgName=Doc_1305577076373.pdf.

19 MARY E. BLACK, G. EMLIN HALL, &FRED M. PHILLIPS, REINING IN THE RIOGRANDE 23-26 (2011).

20 Autobee, supra, at 5.

21 Id.; Littlefield, supra, at 2-3.

22 Id.

23 See, U.S. v. Rio Grande Dam &Irrigation Co., 9 N.M. 292, 51 P. 674(1898); U.S. v. Rio Grande Dam &Irrigation Co., 174 U.S. 690 (1899);U.S. v. Rio Grande Dam & IrrigationCo., 10 N.M. 617, 65 P. 276 (1900);U.S. v. Rio Grande Dam & IrrigationCo., 184 U.S. 416 (1902); U.S. v. RioGrande Dam & Irrigation Co., 13 N.M.386, 85 P. 393 (1906); Rio GrandeDam & Irrigation Co. v. U.S., 215 U.S.266 (1909); Rio Grande Irrigation &Land Co (Great Britain), Vol. VI at133; Boyd v. U.S., No. 96-476L, slipop. at 2 (Fed Cl. April 21, 1997);N.M. v. EBID, CV-96-888, ExpeditedInter Se Proceeding: The Claims of theEstate Of Nathan Boyd, No. RN-97-2413, Subfile No. LRR 28-099-1001(Boyd Claims), Boyd Estate v. U.S.,EBID & Las Cruces, No. 32119(NMCA filed Apr. 6, 2012), N.M.COURTS, https://lrgadjudication.


nmcourts.gov/index.php/stream-system-issues.

24 Littlefield, supra, at 3.

25 Id. at 2-4; ROBERT EMMET CLARK, NEW

MEXICO WATER RESOURCES LAW 72-73(1964); 1906 Convention, supra.

26 Autobee, supra, at 6-7; Act of February25, 1905, Pub. L. No. 58-104, 33 Stat814.

27 Brief History, supra.

28 Id.; Cortez, Project, supra, at 18 & 30.

29 Autobee, supra, at 22-23 (between 1925and 1980, silt reduced Elephant Butte’scapacity from 2,638,000 acre-feet to2,110,298 acre-feet); Rio GrandeProject, Facilities Description – ElephantButte Powerplant, BUREAU OF

RECLAMATION (May 16, 2011),http://www.usbr.gov/projects/Project.jsp?proj_Name=Rio%20Grande%20Project (as of 2011, the capacity was at2,210,298 acre feet of water to providefor irrigation and power generation).

30 Shari A. Kelley, Caballo Lake State Park,N.M. TECH, http://geoinfo.nmt.edu/tour/state/caballo_lake/home.html;Rio Grande Project, supra; CRSPManagement Center, Rio GrandeProject, WESTERN AREA POWER

ADMINISTRATION,http://www.wapa.gov/crsp/planprojectscrsp/riograndeproj.html; Autobee,supra, at 7-19; Filiberto Cortez, LowerRio Grande Project Operating Agreement:Settlement of Litigation 3, WRRI,http://wrri.nmsu.edu/publish/watcon/proc53/cortez.pdf [hereinafterOperating Agreement] [presented atSurface Water Opportunities in NewMexico, WRRI, Oct., 2008];CLIMAS, Coping with Drought on theRio Grande, U. AZ (Aug. 22, 2012)http://www.climas.arizona.edu/feature-articles/august-2012, Rio GrandeProject, supra, Elephant ButtePowerplant; C.S. Conover, Ground-Water Conditions in the Rincon and

Mesilla Valleys and Adjacent Ares in NewMexico 17-21 USGS, (1954), http://pubs.usgs.gov/wsp/1230/report.pdf.

31 AUTOBEE, supra, at 12-23; Cortez,Project, supra, at 40; Esslinger, supra, at4; Complaint for Stream Adjudicationand Request for Injunctive Relief at 5,EBID v. Reynolds, (3rd NMDC Sep. 12,1986) (No. CV-86-848); OSE/ISC,Rio Grande Project 2008 OperatingAgreement; Changes In Allocation AndEffects On New Mexico 6-7, N.M.LEGISLATURE, http://www.nmlegis.gov/lcs/handouts/WNR%20062612%20OSE%20and%20ISC%20REPORT%20JUNE%202012.pdf [presented tothe N.M. Legislature InterimCommittee on Water and NaturalResources, June 26, 2012]; OSE, 1THE WATER SOURCE 1 (2006),http://www.ose.state.nm.us/PDF/ActiveWater/LowerRioGrande/Water-SourceVol1-Iss1-FallWinter.pdf.

32 Peggy Barroll, Ph.D, Rio Grande ProjectOperating Agreement – A New MexicoPerspective 13-17, OSE (AUG. 5, 2010),http://www.ose.state.nm.us/PDF/ISC/BasinsPrograms/RioGrande/OpAgreement/2010-CLE-presentation.pdf;Fred Martino, Alarm Over BigGroundwater Use Increase in Las Cruces,KRWG TV/FM (May 11, 2012),http://krwg.org/post/alarm-over-big-groundwater-use-increase-las-cruces.

33 Cortez, Operating Agreement, supra, at3-4; Esslinger, supra, at 3-4.

34 Cortez, Operating Agreement, supra, at3-6; Esslinger, supra, at 3; Cortez,Project, supra, at 18 & 30; OSE, ActiveResource Management, Protecting ourWater Future 25, OSE (Nov. 2006),http://www.ose.state.nm.us/PDF/ActiveWater/LowerRioGrande/AWRM_ProtectingOurWaterFuture.pdf; Sale ofWater for Miscellaneous Purposes Act,43 U.S.C. §521 (1920); HernandezEmail, supra.


35 Declared Groundwater Basins, OSE,http://www.ose.state.nm.us/water_info_groundwater_basin.html [“Adeclared groundwater basin is an area ofthe state proclaimed by the StateEngineer to be underlying by agroundwater source having reasonablyascertainable boundaries. By suchproclamation the State Engineerassumes jurisdiction over theappropriation and use of groundwaterfrom the source.”] (last visited Nov. 26,2012).

36 Declaration of Basin, N.M.S.A. 1978 §72-12-25A.

37 In the Matter of the Creation of the LowerRio Grande Water Master District for theAdministration of Rights to the Use ofGround Water from the Lower RioGrande Groundwater Basin of NewMexico (Dec. 3, 2004), OSE,http://www.ose.state.nm.us/ActiveWater/LowerRioGrande/LRG-WaterMasterDistrictOrder.pdf;Sheldon Dorman, Water Master, NMOSE Lower Rio Grande Water MasterDistrict 2007 Report (Jan. 18, 2008),OSE,http://www.ose.state.nm.us/PDF/ActiveWater/LowerRioGrande/2007-LRG-WaterMasterReport.pdf; PressRelease, OSE, State Engineer’s LowerRio Grande Metering Initiative isSuccessful, OSE (Apr. 2, 2010),http://www.ose.state.nm.us/PDF/News/2010/pr-2010-04-02-MeteringInLRG.pdf.

38 Hernandez Email, supra.

39 Littlefield, supra, at 2-4; Cortez,Operating Agreement, supra, at 2;Esslinger, supra, at 3; 1906Convention, supra; J. Philip King, P.E.,PhD. & Julie Maitland, M.A., Water forRiver Restoration: Potential forCollaboration between Agricultural andEnvironmental Water Users in the RioGrande Project Area (June 2003),GLOBAL RESTORATION NETWORK,http://www.globalrestorationnetwork.

org/uploads/files/LiteratureAttachments/470_water-for-river-restoration—-rio-grande-project-area.pdf.

40 Rio Grande Compact, art. 1(b), art. 4,art. 12 (1938), OSE, http://www.ose.state.nm.us/PDF/ISC/ISC-Compacts/Rio_Grande_Compact.pdf; Bond Communication, supra.

41 Littlefield, supra, at 5-7; 1906Convention, supra, Reclamation Act of1902, 43 U.S.C. 383; Clark, supra, at73 (citing N.M. Laws 1929, Ch. 42);Gary Daves, History of WaterDevelopment in the Middle Valley,WRRI,http://wrri.nmsu.edu/publish/watcon/proc39/Daves.pdf [presented at TheWater Future of Albuquerque andMiddle Rio Grande Basin, Nov. 1995].

42 Id. at 7-8; Cortez, Project, supra, at 23;Cortez, Operating Agreement, supra, at5; Esslinger, supra, at 3; Rio GrandeCompact, 53 Stat. 785 (1939);N.M.S.A 1978 § 72-15-23.

43 Esslinger, supra, at 3; Staci Matlock,City’s Water Tied to Elephant Butte,THE NEW MEXICAN (Aug. 14, 2011),http://www.santafenewmexican.com/localnews/City-s-water-tied-to-Elephant-Butte-Reservoir#.UKQI-2fhfOM.

44 Id., at 1; U.S. v. Las Cruces, 289 F.3d1170 (2002).

45 Cortez, Operating Agreement, supra, at 4;Cortez, Project, supra, at 35-36;Esslinger, supra, at 3; Telephonecommunication with Sara Bond,Assistant Attorney General of NewMexico (Jan. 2013).

46 Cortez, Operating Agreement, supra, at 5-6; Esslinger, supra, at 3-6.

47 Id.; Esslinger, supra, at 3-6; NewOperating Agreement Approved for RioGrande Project (Feb. 14, 2008),RECLAMATION, http://www.usbr.gov/newsroom/newsrelease/detail.cfm?RecordID=20601.


48 NM’s Comments on US’ & El Paso’sJoint Response to Request for Statementof the Issues Regarding US’ Rio GrandeProject - SS-97-104 at 6, N.M. v.EBID, No. CV-96-888, 3rd JudicialDistrict Court, Oct. 9. 2012, N.M.COURTS, https://lrgadjudication.nmcourts.gov/index.php/stream-system-issues; CLIMAS,supra, Dry Times.

49 Cortez, Operating Agreement, supra;Esslinger, supra.

50 U.S. v. EBID, et al., (D.N.M.) (No. CV97-0803).

51 Cortez, Operating Agreement, supra, at5-6; Esslinger, supra, at 3-6; Terracon,et al., The New Mexico Lower RioGrande Regional Water Plan 17(December 2003), OSE, http://www.ose.state.nm.us/water-info/NMWaterPlanning/regions/LowerRioGrande/LOWER-RIO-GRANDE-REGIONAL-WATER-PLAN.pdf; HernandezEmail, supra.

52 Cortez, Operating Agreement, supra, at5-6; Esslinger, supra, at 3-6;Reclamation, Rio Grande ProjectOperations, Rio Grande ProjectOperations Manual (2010).

53 Hernandez, Briefing, supra, at 1.

54 Cortez, Operating Agreement, supra, at5-6; Esslinger, supra, at 3-6;Reclamation, Rio Grande ProjectOperations, Rio Grande ProjectOperations Manual (2010);Reclamation, Rio Grande ProjectOperations, 2008 Operating Agreement,http://www.usbr.gov/uc/albuq/rm/RGP/index.html.

55 Cortez, Operating Agreement, supra;Esslinger, supra; Hernandez Email,supra.

56 Id.; Esslinger, supra, at 3-6; King,supra, at slides 17-18; EBID, OperatingAgreement, http://www.ebid-nm.org/general/Latest_News/997_OpAg_EBID.shtml (last visited Nov. 13,

2012); EBID, Compromise andSettlement Agreement & OperatingAgreement for the Rio Grande Project(2008), http://ebid-nm.org/Static/PDF/OpAg/OpAg.pdf.

57 Hernandez Email, supra.

58 Rio Grande Compact, art. 1(b), art. 4,art. 12 (1938),http://www.ose.state.nm.us/PDF/ISC/ISC-Compacts/Rio_Grande_Compact.pdf;Bond communication, supra.

59 Esslinger, supra, at 3; Douglas G.Caroom and Susan M. Maxwell, TheNew Mexico/Texas Allocation Dispute:City of El Paso Perspective 8,http://www.bickerstaff.com/files/DGC_El_Paso__s_Allocation_Perspective_Jan_2003.pdf (presented at the Lawof the Rio Grande: Environmental,Compact and Priority - AdministrationIssues in a Time of DroughtConference, Jan. 2003); Complaint at5, EBID v. Reynolds, supra.

60 EBID v. Regents of NMSU, 115 N.M.229, 233, 849 P.2d 372, 376(N.M.C.A. 1993); N.M.S.A. 1978 72-4-17 (‘requires adjudication of allsurface and groundwater hydrologicallyconnected to the stream system’, citingState ex rel. Reynolds v. Sharp, 66 N.M.192, 244 P.2d 943 (1959)); McCarranAmendment, 43 U.S.C. § 666 (a)(1952).

61 EBID v. NMSU, 115 N.M. at 236-238.

62 Amended Complaint for DeclaratoryJudgment and For Injunctive Relief,N.M. v. EBID, supra, SS-97-104 (Dec.19, 1997).

63 Sixth Amended Order RegardingStream System AdjudicationProcedures, N.M. v. EBID, supra, SS-97-104 (Sep. 14, 2009).

64 N.M.S.A. 1978 §§ 72-4-13 & 72-4-17.


65 State of New Mexico’s Rule 71.3 Report– FY 13, Lower Rio GrandeAdjudication Bureau [hereinafter State’sReport], (Jun. 8, 2012), http://www.ose.state.nm.us/PDF/Legal/AdjudicationsResourceAllocation/LRG%20Rule%2071%203%20Report%20-FINAL.pdf; Telephonecommunication with OSE Staff (Oct.31, 2012).

66 Fourth Amended Order RegardingStream Adjudication Procedures, N.M.v. EBID, supra (Oct. 16, 2007).

67 State’s Report, supra, at 1-5.

68 Glossary of Terms (n.d.), (OSE),http://www.ose.state.nm.us/water_info_glossary.html.

69 ISC, Reloan Program Policy at 6, OSE(Sep. 21, 2005), http://www.ose.state.nm.us/PDF/ISC/LoanProgram/ReloanProgramPolicy.pdf.

70 NMSA 1978, § 72-4-19; JointStatement of NM Pecan Growers,Southern NM Diversified Crop FarmersAssociation and the State of NM on (1)Issues Raised by SSI No. 101; (2) Issuesfor Hydrology Committee; and (3)Joint Discovery Plan at 3, State v. EBID,supra, SS-97-101.

71 CIR/FDR - Final Judgment at 2-4,N.M. v. EBID, supra, SS-97-101.

72 Id. at 6-9; State’s Report, supra, at 1.

73 State’s Report, supra, at 1-5.

74 CIR/FDR - Final Judgment at 6-9,N.M. v. EBID, supra, SS-97-101;State’s Report, supra, at 1.

75 Stipulated Subfile Order - ElephantButte Irrigation District, N.M. v. EBID,supra, SS-97-102; State’s Report, supra,at 1.

76 Amended Order Designating Priority,Transferability, and Beneficial UseElements of a Domestic Well WaterRight as a Stream System Issue andCommencing Stream System

Issue/Expedited Inter Se Proceeding No.103, N.M. v. EBID, supra, SS-97-103;State’s Report, supra, at 1.

77 United States’ Statement of Claim forWater for the Rio Grande Project, N.M.v. EBID, supra, (Sep. 15, 2010).

78 Order Granting the State’s Motion toDismiss the United States’ Claims toGroundwater and Denying the UnitedStates’ Motion for Summary Judgment,N.M. v. EBID, supra, SS-97-104 (Aug.16, 2012).

79 John Fleck, Feds Entitled to N.M. Water?,ALBUQUERQUE JOURNAL (Aug. 1, 2012),http://www.abqjournal.com/main/2012/08/01/news/feds-entitled-to-nm-water.html; John Fleck, Judge: FedsHave No Groundwater Rights,ALBUQUERQUE JOURNAL (Aug. 21,2012), http://www.abqjournal.com/main/2012/08/21/news/judge-feds-have-no-groundwater-rights.html.

80 Order on Next Issues and Schedule forLitigation Regarding the United States’Rio Grande Project, N.M. v. EBID,supra, SS-97-104, (Oct. 12, 2012).

81 Order Granting (1) the United States’and EBID’s and (2) City of Las Cruces’Motions to Dismiss the Clams of theEstate of Nathan Boyd at 18, N.M. v.EBID, supra, Boyd Claims, (Feb. 24,2012).

82 Id.

83 Notice of Appeal, N.M. v. EBID, supra,Boyd Claims (Apr. 6, 2012); DocketingStatement, Boyd Estate v. U.S., No.32,119, (N.M.C.A. May 5, 2012).

84 Telephone communication with clerk atNew Mexico Court of Appeals (Nov.11, 2012).

85 Hernandez email, supra.

86 Barroll, supra, at 19.

87 Hernandez, Briefing, supra,.

88 Verhines, supra, at 6.


89 Complaint, supra; Steven Hernandez,Background on the Lower Rio GrandeProject [presented at A Rafting CLE -Down the Wild and Scenic Rio Chama,Aug. 18, 2012] (obtained from author).

90 Las Cruces Sides with State in WaterLawsuit, LAS CRUCES SUN-NEWS (Sep.27, 2011)

91 Memorandum Opinion and Order,N.M. v. U.S., supra, (Jan. 24, 2012)Doc. No. 39 (granting State’s motion tojoin EBID and EP No. 1);Memorandum Opinion and Order,N.M. v. U.S., supra, Feb. 17, 2012)Doc. No. 53 (granting City of LasCruces’ motion to intervene);Memorandum Opinion and Order,N.M. v. U.S, supra, (Feb.17, 2012)Doc. No. 50 (denying the Middle RioGrande Conservancy District’s motionto intervene, without prejudice); JohnFleck, Conservancy District Votes to JoinState Lawsuit Over Lower Rio GrandeWater Distribution ALBUQUERQUEJOURNAL (Nov. 10, 2012), http://www.abqjournal.com/main/2011/10/25/blogs/nm-science/conservancy-district-votes-to-join-state-lawsuit-over-lower-rio-grande-water-distribution.html.

92 Amended Complaint for Declaratoryand Injunctive Relief, N.M. v. U.S.,supra, Doc. No. 45 (Feb. 14, 2012);Verhines, supra, at 6; Farris, supra; LasCruces Sides with State in Water Lawsuit,LAS CRUCES SUN-NEWS (Sep. 27,2011), http://www.lcsun-news.com/las_cruces-news/ci_18984959.

93 Hernandez, Briefing, supra, HernandezEmail, supra.

94 Verhines, supra.

95 Hernandez, Briefing, supra.

96 Id; Hernandez Email, supra.

97 Rio Grande Compact, art. 7.

98 OSE/ISC, Operating Agreement, supra,at 6-7.

99 Reclamation, NEPA Scoping Summaryon the Implementation of the RioGrande project Operating Procedures(May 12, 2012), http://www.usbr.gov/uc/albuq/rm/RGP/pdfs/ScopingSummary.pdf; Complaint for Declaratoryand Injunctive Relief, No. 11-cv-691,N.M. v. U.S. (D.N.M. Aug. 8, 2011)Doc. No. 1.

100 Climate Change and Water in theSouthwest, UTTON CENTER (June 12,2012), http://uttoncenter.unm.edu/research-notes/climateSWJune12.pdf.

101 Hearing Airs Rio Grande Water Fight C-2, ALBUQUERQUE JOURNAL (Aug. 8,2012); Las Cruces, supra; Hume, supra.

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