Part 2: Who’s in charge?
“Never let a good crisis go to waste.
One by one, representatives of agencies responsible for the management of New Mexico’s lifeblood stream, surface and ground waters entered a teleconference room on May 7, 2021. They had been called together to try to find solutions to avert the drastic draining over the upcoming summer of Elephant Butte Lake, the state’s largest irrigation reservoir and most popular body of recreational water.
That they were not alone in facing this crisis provided cold comfort. Most upstate reservoirs on the Rio Grande, Rio Chama and Pecos River were holding between 10 and 50 percent of their capacity heading into the irrigation season, a U.S. Bureau of Reclamation/U.S. Army Corps of Engineers press release had advised on April 15. Throughout the West, from Lake Mead, located in Arizona and Nevada, to Lake Shasta in California’s Sacramento Valley, reservoirs were “at or approaching historic low levels,” the Washington Post would report as the summer wore on.
The convenor of the May 7 emergency teleconference was Rebecca Dow, a Republican state representative whose district included Sierra County, home to EBL and a much smaller reservoir called Caballo Lake. Dow had originally intended for the teleconference to be a town hall in which members of the public, particularly the concerned citizens of the City of Elephant Butte, could participate. Because Sierra County, as Dow put it in a subsequent interview with the Sun, didn’t “use water—we just play in it,” recreationalists and the local businesses that served them did not have a mandated seat at the table with water management authorities. Dow wanted to give her constituents a say in how to “save the lake,” as Elephant Butte’s stakeholders had sized up the desperation of the situation.
But the town hall format had not met with the approval of the U.S. Bureau of Reclamation’s Albuquerque Area Office, which had set off alarm bells in Sierra County with its early-spring prediction that EBL would be reduced to 1 percent of capacity sometime in August after the release of Rio Grande Project and Rio Grande Compact irrigation waters. The Albuquerque office brass did not want to participate in what they feared would become a “gripe session,” the office’s public affairs specialist had informed Dow.
IS COOPERATION A RELIC OF THE PAST?
Considerations of how to share the waters of the Rio Grande had not always been contentious, as water attorney Darcy S. Bushnell documented in “Water Litigation in the Lower Rio Grande” (Water Matters!, Vol. 2015.) At the time of Spanish settlement of New Mexico in 1598, 81 pueblos were located along the river, which springs forth from the San Juan Range of the Colorado Rockies and runs south through New Mexico and then along the Texas/Mexico border to the river’s mouth in the Gulf of New Mexico at Brownsville. With a combined population of 100,000 at the dawn of the 17th century, the pueblos grew maize, beans and squash with irrigation flows from their common natural resource.
Like the Native Americans, Spanish settlers recognized the supremacy of communal rights to water resources—a legacy of Spain’s Islamic heritage—and they, too, instituted a system of community-managed and -maintained irrigation ditches, or acequias, that operates throughout New Mexico to this day. Anglo-American settlers, responding to the call of Manifest Destiny and bringing with them to the Rio Grande watershed the concepts of individualism and private property rights, broke with these long-standing water-use traditions. They enshrined in the water law of the New Mexico Territory and later in the state constitution the precept that public waters were “subject to appropriation for beneficial use,” with priority of appropriation given to the “better right.”
By the late 19th century agricultural development of southern Colorado’s San Luis Valley was diverting sufficient water from the Rio Grande to affect flows to farmers downstream all the way to El Paso, Texas, and Juarez, Mexico. Jurisdictions bordering the 1,896-mile-long Rio Grande responded to the problem with two landmark agreements aimed at equitably apportioning the river’s waters for irrigation purposes. The 1905 Rio Grande Project built the Elephant Butte Dam and allocated flows stored in the resulting reservoir among Mexico and what became the Elephant Butte Irrigation District and the El Paso County Water Improvement District No. 1. The 1938 Rio Grande Compact divided water rights among three signatories: Colorado, New Mexico and Texas.
These binding interstate and international agreements were forged in a world that no longer existed. At the beginning of the 20th century the relative abundance of water even in the desert Southwest masked its true nature as a finite resource whose conservation must be in balance with its use. In 1900 the state’s population was 10 times smaller than today (196,000 inhabitants versus 2.1 million in 2020), and its economy was based on subsistence agriculture, cattle ranching and mining.
A century later, according to an analysis entitled “NM Running Out of Water and Time,” published in late 2020 by the progressive Santa Fe-based advocacy organization Retake Our Democracy, the agricultural sector comprised less than 5 percent of the state’s economy while holding rights (because of New Mexico’s agrarian origins) to what was widely believed to be the preponderance of its water supply to agriculture. The proportion taken by agriculture was often given as 80 percent, but no one could say for sure because no one collected data about the state’s non-obvious uses of water, such as that consumed by forests and other non-agricultural plants or occasioned by leaks in municipal water systems or domestic plumbing.
In addition to the lack of comprehensive water-use data, other factors stood in the way of cooperatively and equitably rationalizing New Mexico’s water-use policies and practices. These included:
• overlapping or fragmented water-management authority
• conflicting water-use priorities
• reliance on litigation to resolve water-use conflicts
• the concentration of political power in the metropolitan areas, whose water needs were often given precedence over those of rural areas
• and the shrinking and erratic stream flows in the Rio Grande watershed caused by a megadrought that verged on permanent climate change.
All these complications made it difficult for New Mexico to live up to the strictly defined Project and Compact allocation requirements. The state’s water-management system seemed even less equipped to deal with emergency situations.
THE ROOM WHERE IT DID NOT HAPPEN
Presented with dire water shortages such as those forecast for the Elephant Butte Irrigation District, would the water management authorities participating in Representative Dow’s emergency summit be able to think outside their bureaucratic boxes and work together to find an innovative and fair remedy to the anticipated extreme reduction in EBL’s water level? If they could not, southern New Mexico’s recreation and tourism industries were going to bear the brunt of the system’s inflexibility.
EBID farmers with the financial means could deal with 2021’s dramatically reduced supply of irrigation water by pumping more groundwater. (This short-term expediency would place further stress on an aquifer whose recharge was largely dependent on the “return” of excess irrigation water not used by plants or held in topsoil as moisture. “It’s a vicious circle,” EBID’s consulting hydrologist (and a teleconference attendee) J. Phillip King pointed out to the Sun, explaining that New Mexico’s ground and stream waters are “hydrologically connected so if you take water out of the ground it takes water out of the river” to fill the void.)
There was, however, no Plan B to keep Elephant Butte Lake’s recreational users afloat and its fish from dying of overcrowding and oxygen deprivation should the reservoir, which had a storage capacity of more than two million acre feet, be drained down to about 20,000 acre feet, as was set forth in the BOR’s 2021 Operating Plan for the Rio Grande.
EBID manager-treasurer Gary Esslinger believed it was “too late” to prevent EBL’s minimum pool from reaching a near-record low by summer’s end. For one thing, planning for this contingency should have begun years before, when drought conditions had begun to make themselves felt, but the state’s water supplies were still relatively plentiful. For another, southern New Mexico’s Congressional District 2 lacked political clout at the state and federal level compared to upstate New Mexico’s Congressional Districts 1 and 3, whose registered voters outnumbered those in CD2 by more than two to one and consequently determined the outcome of New Mexico’s gubernatorial and U.S. Senate elections. “You can’t do much,” Esslinger explained, “when you have people in the Middle Rio Grande who just want to placate their voters and satisfy their constituents’ water needs without thinking about what is happening downstream.” Nonetheless Esslinger attended Representative Dow’s May 7 teleconference and praised her later for managing to assemble all the power players and getting them to talk to one another. It was telling that he regarded this as a remarkable accomplishment.
John R. D’Antonio Jr. came to the emergency summit wearing three hats. D’Antonio had been appointed by New Mexico’s newly elected Democratic governor, Michelle Lujan Grisham, in 2019 to head the New Mexico Office of the State Engineer, which has authority over the “supervision, measurement, appropriation, and distribution of all surface and groundwater in New Mexico, including streams and rivers that cross state boundaries,” OSE’s website stated. He concurrently served as New Mexico’s Rio Grande Compact Commissioner and the secretary of the New Mexico Interstate Stream Commission. According to the OSE website, the later agency has “broad powers to investigate, protect, conserve, and develop New Mexico’s waters including both interstate and intrastate stream systems.” The ISC was also represented at the teleconference by its Rio Grande Basin bureau chief, hydrologist Page Pegram.
The full weight of the U.S. Bureau of Reclamation’s authority to “deliver reliable water and hydropower for the western United States” (in the words of the BOR website) was embodied in the persons of Albuquerque Area Office Manager Jennifer Faler, Deputy Area Manager Jim Wilbur and three staff members.
The interests of Texas were represented by that state’s Rio Grande Compact Commissioner Robert R. Skov, a former member of the board of the El Paso County Water Improvement District No. 1, and Skov’s predecessor, Patrick Gordon.
The Middle Rio Grande Conservancy District, New Mexico’s upstate irrigation-management agency, was represented by its chief executive officer/chief engineer, Mike A. Hamman.
New Mexico’s newly elected U.S. senator, Democrat Ben Ray Lujan, had sent two field representatives, and newly elected U.S. Congresswoman Yvette Herrell, a Republican whose district encompassed the entirety of southern New Mexico, had sent three staffers, who said they were present to “listen and learn.”
Christy Tafoya, the soon-to-be-retired director of the State Parks Division of the New Mexico Energy, Minerals and Natural Resources Department, attended on behalf of Elephant Butte Lake State Park. The division would not require camping reservations at the park this season, Tafoya volunteered during the discussion, in order to encourage continuing patronage as EBL’s waters receded.
City of Elephant Butte stakeholders had a place at the table with the attendance of Mayor Edna Trager, Neal B. Brown, the owner of EBL’s two marinas, and Paul Scott, sales director of the Turtleback Mountain Resort, a second home and retirement community bordering Elephant Butte’s municipal golf course. Faced with having to move his marinas or shut them down entirely, Brown sat with “his head in his lap,” Gary Esslinger observed. Esslinger sympathized with Brown’s plight, wondering why anyone in Elephant Butte would struggle to stay in business without the assurance that EBL’s water levels would be stabilized.
Remarkably, all the May 7 teleconference participants agreed that a minimum pool that would sustain normal recreational activities and the biodiversity at Elephant Butte Lake needed to be defined and maintained, according to Representative Dow, who took extensive notes on the teleconference that she later summarized for the Sun. Would permission from the federal government be needed? No one provided a definitive answer. The BOR representatives, in any event, had concluded that their federal agency did not have the authority to create a permanent minimum pool at EBL. Yet Albuquerque Area Manager Faler felt comfortable assuring the Sierra County Commissioners when she briefed them on the realities of situation at the commission’s regular meeting later in May that the BOR would not allow EBL’s water levels to drop below 10,000 acre feet—in effect, establishing a minimum pool for 2021.
It had taken an act of Congress to establish a permanent pool of 50,000 acre feet at Elephant Butte Lake in the drought years of the early 1970s, according to contemporaneous reporting in the Truth or Consequences Herald. Implemented in 1974, the arrangement fell apart upon the expiration in 1984 of the legislation’s provision for maintaining the pool by specifying that upstate reservoir water would be used to replace evaporation losses of up to 6,000 acre feet annually. The teleconference participants agreed that clarification of whether the federal government had a role to play again in the re-establishment of a permanent pool should be sought as a first step in implementing this long-term solution.
State Engineer D’Antonio seemed to have the widest discretion to take emergency action. The previous summer, with the irrigation season in the Middle Rio Grande Valley having been cut short and the prospect of the Rio Grande going dry through Albuquerque and possibly even farther south, D’ Antonio had negotiated a deal with his fellow Compact commissioners that provided for the first emergency use of stored Compact water since the drought years of the 1950s. The Middle Rio Grande Conservancy District, the largest consumer of irrigation-water in the state, was permitted to “access up to 38,000 acre-feet of water, or more than 12 billion gallons, that is currently stored in El Vado Reservoir [on the Rio Chama 160 miles north of Albuquerque] under the Rio Grande Compact agreement,” stated a July 17, 2020, article by Theresa Davis, the Albuquerque Journal’s water and environment reporter.
Davis explained the deal’s complexities:
“New Mexico must deliver a certain amount of water to Elephant Butte Reservoir every year under the compact. If the state accrues a water debt, they must keep an equivalent amount of water in storage to assure that the debt will be paid.
“All three Rio Grande Compact commissioners from New Mexico, Texas and Colorado had to agree to waive that requirement. Typically, the ‘debit water’ is not released on the river until late fall, when it can travel to Elephant Butte without major losses from irrigation or evaporation.”
Although the negotiated water release was deemed a “lifesaver” for Middle Rio Grande farmers, it exacted a toll downstream. New Mexico entered the 2021 irrigation season owing the Compact a total of 96,300 acre feet that, had it been delivered that winter to Elephant Butte Lake, could have ameliorated the impending crisis at that reservoir.
D’Antonio wondered why Elephant Butte stakeholders had not spoken up sooner. “We could have gotten you water, but now it’s too late,” the state engineer remarked in Dow’s account of the teleconference. Dow said she replied that her constituents, having no seat at the tables where Project and Compact operating decisions were made, had not been aware of the impending crisis until the BOR released its 2021 Operating Plan for the Rio Grande in mid April.
The Sun subsequently sent multiple requests over several weeks to OSE’s acting public information officer, Kristina M. Eckhart, asking for D’Antonio’s comments on short- and long-term solutions he would favor to stabilize EBL’s water levels. Neither Eckhart nor D’Antonio responded.
According to Dow, the state engineer did have some advice to offer on May 7. “This is just a drought,” Dow quoted him as remarking. “Educate the people that this is just a drought.”
Mary Carson, the public affairs specialist for BOR’s Albuquerque office, agreed that the megadrought was the core—and largely unsolvable—problem. “There is no water,” Carson said, according to Dow’s reconstruction of the teleconference. “Where do you get the water?”
SHORT-TERM FIXES: OUT
The teleconference participants discussed two possible sources of emergency water. The Albuquerque Bernalillo County Water Utility Authority had a contract with the BOR to store in EBL unused water the authority had received from the BOR’s San Juan-Chama rivers diversion project. Allowing for the storage of up to 50,000 acre feet to offset the metropolitan area’s depletions of Rio Grande Compact water, this arrangement provided the legal structure needed to secure at least part of the water needed to stave off the impending disaster at EBL. Could it also be part of the solution for creating a permanent minimum pool? (EBID’s Esslinger and King thought so, and the Sun will lay out in Part 3 of this series their strategic plan—of benefit to every New Mexican—for stabilizing reservoir water levels not only at Elephant Butte, but throughout the state.)
Middle Rio Grande Water Conservancy District CEO Mike Hamman subsequently spoke with colleagues at the Albuquerque Bernalillo water authority and reported back to Dow that, given the persistent drought, they thought it too risky to store significant amounts of water downstream that might be needed sooner than later by their domestic, business and industrial customers.
So, the Albuquerque Bernalillo short-term fix was out.
The discussion turned to another possible emergency remedy. Could the BOR’s Albuquerque office allot Elephant Butte Lake a portion of Rio Grande waters the federal bureau intended to store downstream at Caballo Lake, an EBID reservoir with a holding capacity of 343,000 acre feet. The BOR’s 2021 Operating Plan for the Rio Grande called for maintaining a minimum pool of between 12,000 and 15,000 acre feet in Caballo after irrigation releases. The re-allocation of some of those acre feet to EBL seemed to be the simplest of solutions.
Several of the teleconference participants were already opposed to storing water in Caballo for water conservation reasons. “Caballo has worse evaporation than Elephant Butte Lake, because it’s flat and much less deep,” EBID hydrologist Phil King later explained. “You’re just spreading your water out to dry.” For this reason, EBID’s leaders would have preferred that the BOR not use Caballo at all for storage.
This position was also favored by Texas and Mexico, King and Esslinger claimed, albeit for a different reason. Once water was released from Elephant Butte Lake, it belonged for accounting purposes to Compact Texas. Any water lost to evaporation that occurred at Elephant Butte Lake would not be carried on Compact Texas’s books. The debit would be charged to Compact New Mexico—a factor that helped to explain the support of other teleconference participants, most notably New Mexico’s Compact commissioner, for using Caballo Lake for storage.
The BOR representatives at the emergency summit made clear their opposition to further reducing the minimum pool at Caballo by storing more water over the summer at EBL. They expressed concerns about protecting Caballo Dam’s infrastructure from damage, citing what happened in one recent year, when Caballo Lake was allowed to fall to about 6,000 acre feet. The dam’s intake and release gates got “gummed up” when a flash flood deposited debris against these works instead of flowing above and over them. Their repair had been costly.
The BOR representatives voiced another reason why they intended to proceed with the planned storage at Caballo. A Native American archeological site known to be located at the reservoir must be kept submerged to protect it from punishing wave action and vandalism. The Elephant Butte stakeholders suggested several ways to protect the site, should it be exposed as a result of the BOR’s agreeing to keep more water stored over the summer in EBL rather than in Caballo. Fencing, burial or removal of the ruins and artifacts were among them. The BOR representatives remained unpersuaded.
Our hands are tied, Albuquerque Area Manager Faler said later at her briefing of the Sierra County Commission. The BOR “expected several tribes are going to want to keep [the site] underwater,” Faler explained. The New Mexico Historic Preservation Division would also have a say in the site’s treatment.
So, the Caballo short-term fix was out.
In the aftermath of the inconclusive summit, southern New Mexico’s local, state and federal political leaders continued to press the BOR for solutions. On June 10, Congresswoman Herrell sent a letter to Camile Touton, the BOR’s acting commissioner, in Washington, D.C., that was co-signed by two state senators (including Sierra County’s Crystal Diamond), two state representatives (including Dow), all three Sierra County Commissioners and the mayors of Elephant Butte and Truth or Consequences, among others. Copies were sent to New Mexico’s U.S. senators and the commanding general of the U.S. Army Corps of Engineers, which had built and managed four of New Mexico’s upstate reservoirs.
The letter stated, in part:
“We write to you today to express concerns about the future of the Elephant Butte Reservoir and the need for all stakeholders involved to work together to protect this invaluable resource.
“. . . We all must come together to find solutions that can help mitigate the problems at Elephant Butte this year and in years to come. In the weeks ahead we all must work together to find common ground to protect Elephant Butte Lake this year, along with the communities and business that depend on it. Over the long term, innovative solutions like the creation of minimum pools and investments in water storage, desalination, removal of invasive species, and preventative river maintenance can all help to ensure that Elephant Butte is healthy and thriving.
“. . . We know that some of these solutions will take time and both federal and state funding. All of us are committed to working to secure these actions, as the communities we live in and represent depend on it. We ask that you join us in working in a collaborative way to solve the crisis we face at Elephant Butte and the entire Rio Grande watershed in New Mexico.”
As of July 15, Herrell and her 12 co-signers had received no response from Washington. “Pray for rain” remained the best hope for salvaging the recreational season.
Fortunately, southern New Mexico and far west Texas had experienced heavy monsoon showers, and the precipitation had both increased inflows into Elephant Butte Lake and reduced somewhat El Paso’s demand for irrigation outflows, the BOR’s Mary Carson told the New Mexico Political Report. Carson also shared the news that the Albuquerque Bernalillo County Water Utility Authority had “stopped using San Juan-Chama Project water and switched to groundwater in an effort to increase the water flowing downstream in the Rio Grande.”
As of mid July, ELB remained at 7 percent of capacity, storing about 135,000 acre feet of water.
Additional research and interviewing by Kathleen Sloan and Debora Nicoll
Series sources: Sierra County Sun interviews with Neal Brown, Mary Carson, Rebecca Dow, Gary Esslinger, J. Phillip King and Mike Hamman.
Part 3: A tough love solution