Water laws no longer reflect dwindling resource

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By Sherry Robinson

Faces were pretty long during a recent meeting of the interim legislative Water and Natural Resources Committee and not because of the gloomy reports on snowpack and reservoir levels, the smoke hovering from wildfires, and the grim struggles among water users. No, it was the growing consensus among experts that this isn’t a drought; climate data tell us that the last 50 years have been wetter than normal. The new normal is also the old normal.
Writing in a recent column, Sen. Jerry Ortiz y Pino, an Albuquerque Democrat, launched into the implications of getting used to one to three inches of rain a year instead of the six to 10 inches of past years.
That’s a good discussion to have, of course, but the same experts have been telling us this for several years. They have practically talked themselves hoarse, and we don’t hear it because we’d rather hear “drought” than “desertification.” At least drought holds out the possibility of relief.
This dawning realization could work its way into the lawsuit Texas v. New Mexico and Colorado, the latest attempt by Texas to squeeze New Mexico like an orange.
New Mexico is party to eight compacts and two international treaties that govern shared river systems. The Rio Grande Compact of 1938 divvied up the water — 57 percent for New Mexico, 43 percent for Texas — based on irrigated farmland in the two states. It didn’t specify the amount of water to be delivered.
The plot thickens. Southern New Mexico irrigators and the city of El Paso, Texas, agreed in 2008 to a new ratio with the Bureau of Reclamation. The farmers knew their groundwater pumping was affecting surface flows and felt vulnerable to Texas demands for water, according to an account written for the Utton Transboundary Resources Center at the University of New Mexico’s School of Law.
New Mexico and Texas couldn’t agree on a solution, so the Elephant Butte Irrigation District cut its own deal. Irrigators agreed to guarantee water deliveries, even if they had to give up some water, and El Paso agreed to grandfather in 40 years of wells. Irrigators gained some security and avoided a lawsuit. But the State Engineer thought the agreement was overly generous to Texas, and New Mexico Attorney General Gary King sued in 2011.
Texas fired back with its own action this year, claiming that New Mexico farmers are taking too much water, both surface and groundwater. The Lone Star State is now asking for more than it would have gotten under the 2008 agreement. State Engineer Scott Verhines said, “We are seeing a pattern of Texas litigation demanding interstate waters for which they have no legal right. Texas sues instead of addressing increasing water use within Texas.”
Whether the Supreme Court accepts the case, legal action will take years and burn millions in taxpayer dollars. Texas has already allocated $5 million for fiscal 2014 and hired itself a fancy California lawyer.
That’s especially nutty, considering that Elephant Butte reservoir, which stores compact water, is at seven percent capacity. It’s like fighting over the contents of a teacup. Which brings us back to that, uh, permanent condition the experts see, also called climate change. When the states negotiated this compact during the 1930s, there was a lot more water. We’re discovering more and more, as the flows shrink and the wells dry up, it’s getting harder to figure out which trickle is yours and which is mine.
We may have to admit that the Rio Grande and other compacts, written for different times and different problems, are obsolete. It’s probably time to renegotiate it, but we’ve been saying that for years too.