Part 3: A Tough Love Solution
“Never let a good crisis go to waste.”
The last time Elephant Butte Lake had a guaranteed minimum pool reserved for recreation, it took a lawsuit, advocacy by a statewide coalition of government and civic leaders, the united efforts of New Mexico’s Congressional delegation, an act of Congress and a presidential okay to create it.
Contemporaneous reports in the Truth or Consequences Herald and the Las Cruces Sun News document that the precipitating event in 1971 was similar to the crisis again facing EBL in 2021: an irrigation season during a time of drought had reduced New Mexico’s largest reservoir and its most heavily used recreational lake to near-record low levels, threatening livelihoods throughout Sierra County.
In April of this year the U.S. Bureau of Reclamation forecast that EBL would be drained following irrigation releases to about 1 percent of capacity by mid August. The BOR’s 2021 Operating Plan for the Rio Grande raised widespread local alarm about the likely ruination of EBL’s recreational season and the decimation of its fish populations. (See Part 1 of this series for more details about local response to what EBL marinas owner Neal B. Brown termed this “horrific” forecast.)
THE FORGOTTEN HISTORY OF EBL’S FORMER RECREATIONAL POOL
Faced with the same dire prospects in 1971, Sierra County officials filed a lawsuit against the Bureau of Reclamation in district court in late July, precisely 50 years ago. Charging that the BOR’s planned irrigation releases from the lake were causing economic and environmental damage, the suit resulted in an injunction to stop further water outflows.
The court order was lifted a day later after what the Las Cruces Sun News described as a “hue and cry” by elected officials and water-management authorities downstream “as to the potential crop loss faced along the Rio Grande.” Despite its brevity, the injunction catalyzed a multi-year effort by all concerned stakeholders to make sure that EBL’s water level never again fell below 50,000 acre feet, or about 2.5 percent of the lake’s holding capacity of two million acre feet.
Establishing a minimum recreation pool was a remedy that present-day stakeholders had agreed to pursue at an emergency teleconference on May 7 called by state Representative Rebecca Dow, whose district included Sierra County. (See Part 2 of this series for a more detailed account of the teleconference.) Perhaps the participants were unaware of the degree of state and federal, bipartisan, inter-agency and inter-nation cooperation that had been required to preserve the lake as a recreational asset in the 1970s. Even then, such teamwork was unprecedented. It now seemed almost unachievable in a state deeply polarized along economic, political and sociological (urban/rural) lines and suffering from a megadrought that was straining water resources to their limits.
In 1971, as today, BOR officials attempted to restore calm by pledging that, under no circumstances, would they allow EBL’s water level to drop below 10,000 to 12,000 acre feet. The difference then was that the BOR’s Rio Grande Project superintendent Jim Kirby took the further initiative of deliberating throughout the fall with elected and civic leaders in Sierra County, state and federal legislators, and managers of the Elephant Butte Irrigation District and the El Paso County Water Improvement District No. 1 about how to secure an adequate and stable recreational pool for Elephant Butte Lake.
On January 11, 1972, the T or C Herald ran a banner headline across its front page that declared: “Runnels Introduces ‘Minimum Pool’ Bill.” U.S. Representative Harold L. Runnels, a Democrat who represented southern New Mexico’s Congressional district, had sponsored a House bill that authorized the Secretary of the Interior to cause the BOR to create a 50,000-acre foot recreational pool at EBL with unneeded water from the BOR’s San Juan-Chama transfer project that was stored in Heron Lake reservoir.
A system of canals and laterals (piping leading off canals to agricultural fields), the San Juan-Chama Project was built to divert waters from the Colorado River via its San Juan River tributary to “contractors,” or municipal, irrigation and pueblo water-management authorities in the Middle Rio Grande Valley. The one-time release of 50,000 acre feet was possible because several of the contractors had not yet completed their irrigation systems, Las CrucesSun News columnist Marvin Tessneer reported in 1974, upon the pool’s authorization.
Subject to the continuing availability of stored SJ-C water, the bill also authorized the delivery of up to six thousand acre-feet of water to Elephant Butte Lake reservoir annually, for a period not exceeding 10 years from establishment of the recreation pool, to replace loss by evaporation and other causes. No money was to be charged for the creation and replenishment of EBL’s recreational pool, according to Tessneer.
In a parallel conversation, local leaders pressed the New Mexico legislature for monies to improve facilities at Elephant Butte State Park; a new boat marina and boat launching ramps were particularly needed. State Senator I. M. Smalley, whose district included Sierra County, advised the local coalition that monies were more likely to be forthcoming if facts could be marshalled showing how the improvements would benefit the county and state through increased tourism and park revenue. The coalition members did their homework, and the resulting research clearly played a role in persuading New Mexico’s U.S. Senators Pete V. Domenici, a Republican, and Joseph M. Montoya, a Democrat, to co-sponsor a Senate bill authorizing EBL’s recreational pool after Runnel’s legislation was re-introduced in the House in March 1973.
Explaining his support for the recreational pool to the T or C Herald, Domenici noted that:
storages of less than 50,000 acre feet have occurred during seven of the last 23 years at Elephant Butte. He said a report by the business community . . . indicates that when the storage level falls below 50,000 acre free, there is an immediate, resultant economic loss to the recreational industry of the state.
Domenici also noted that residents of the area believe that this uncertainty of the pool has been in part responsible for precluding industries from locating in the Rio Grande Basin. He said that $44 to $511 has been added to the state’s agricultural economy for each acre foot of water, $212 to $307 to the recreational economy per acre foot and $3040 to $3989 to the industrial economy.
A year and a half passed before the U.S. Senate Interior Committee took up the recreational pool legislation, only to cut it out of an omnibus BOR projects bill in which it was now included. Believing that it would negatively affect their nation’s water rights, the Jicarilla Apache Tribal Council had passed a resolution opposing the pool’s creation that was presented during the committee’s deliberations in late September 1974. Domenici rushed to have language asserting the primacy of the rights of several of New Mexico’s Native American nations to San Juan-Chama water inserted into an amendment to the House bill, which had already passed, paving the way for the reintroduction of the recreational pool legislation into the Senate’s omnibus bill. The bill passed the Senate on October 27, 1974, and the following day President Gerald Ford signed it into law.
The evaporation-replacement provision of House Bill 15736 expired in 1984 during a period of unusually wet weather in New Mexico that lasted until 2000. During those years, the minimum storage level at Elephant Butte Lake never fell below one million acre feet, according to BOR records provided the Sun by Elephant Butte Irrigation District officials. The issue of maintaining the recreational pool became moot, and knowledge of the terms of the authorizing legislation faded.
The question of whether federal approval would be necessary to create a minimum recreational pool at Elephant Butte Lake was raised at the May 7 emergency teleconference, according to Representative Dow, who took extensive notes on the teleconference that she later summarized for the Sun. With some participants, including Dow, unaware of the existence of the previous pool or its authorizing legislation, a consensus was reached that this issue should be clarified. The Sun has located online a copy of HB 15736, and the text of its TITLE XIV ELEPHANT BUTTE RECREATION POOL, NEW MEXICO is reproduced in a downloadable PDF below. A determination of whether the pool’s authorization survives the loss of its dedicated waters due to evaporation should indeed be pursued.
CAN RIO GRANDE COMPACT REGULATIONS INCENTIVIZE A MINIMUM POOL’S CREATION?
Gary Esslinger, who attended the teleconference in his capacity as the long-time manager-treasurer of the Elephant Butte Irrigation District, later told the Sun he believed there was a more “straightforward” way to re-establish and maintain a minimum recreational pool at EBL than seeking federal authorization. It could be found within existing water regulations and procedures and would not interfer with the lake’s primary function as an irrigation reservoir, he maintained. Esslinger, who joined the staff of EBID in 1978 and became manager-treasurer (i.e., CEO) in 1987, knew the provisions of the binding interstate and international agreements that governed the allocation of the Rio Grande’s water like the back of his hand. For those who struggle to make sense of the dense and, in places, seemingly contradictory terms of these agreements, his proposed solution may seem less than “straightforward.” And, more crucially, it is politically fraught, especially in an era of increasing water scarcity.
The 1905 Rio Grande Project of the then-titled U.S. Reclamation Service built the Elephant Butte Dam on the Rio Grande River near Truth or Consequences a decade later and has since attempted to equitably allocate irrigation waters stored behind the dam among Mexico and what became the EBID and the El Paso County Water Improvement District No. 1. Esslinger, however, believed that it was provisions in the 1938 Rio Grande Compact, signed by Colorado, New Mexico and Texas, that if, more strictly observed, would stabilize water levels not only at EBL, but at irrigation reservoirs throughout the state.
“Article VI of the Compact provides a system of credits and debits for over- and under-deliveries by Colorado to New Mexico and New Mexico to Texas . . . ” Esslinger explained in a 2019 white paper. “If an upstream state delivers water to their downstream neighbor in a given year in excess of Compact requirements, it creates an annual credit.” The Compact’s accounting system of credits and debits allows water to be moved virtually up and down the river. The Compact also permits Colorado and New Mexico to physically store water equivalent to their accumulated credits in Elephant Butte Lake or, if EBL holds 400,000 acre feet or more of “usable water,” at other reservoirs in upstate New Mexico. In times of robust Rio Grande flows, when EBL held more than enough water to accommodate a normal irrigation season’s release of 790,000 acre feet, it was this provision that served to stabilize water levels at upstate reservoirs/recreational lakes.
As recently as 2010, Compact New Mexico had about 180,000 acre feet in credit water at Elephant Butte, Esslinger’s white paper noted. The megadrought affecting the entire West had since wrecked havoc with that credit balance, but authorization for Elephant Butte Lake’s desired 50,000-acre foot recreational pool was nonetheless implicit in the Compact’s Article VI, EBID’s hydrologist J. Phillip King posited in discussing the solution presented in Esslinger’s white paper. “It is already on the books,” said King, a consultant with the irrigation district for 26 years.
Old hands that they were, Esslinger and King recognized that, in addition to increasing water scarcity, other significant obstacles stood in the way of using the Compact provisions to enable the pool’s re-establishment. Sure, Elephant Butte Lake State Park, with an annual attendance of one million or more visitors, was a “cash cow” for the state park system and a key tourist attraction for the entire state. But would these considerations carry enough weight with New Mexico’s Compact Commissioner (a position held by New Mexico’s state engineer, who was a political appointee) to give the recreational pool priority over the needs of upstate water users, whose constituents comprised the preponderance of the state’s voters. Probably not, given that any effort to place restrictions on the Middle Rio Grande’s water use would have “folks in Socorro and Belen and Los Lunas and all the way up screaming bloody murder,” King himself acknowledged, “so that is the political downside to all this.” Despite repeated requests, New Mexico Compact Commissioner/State Engineer John R. D’Antonio Jr. declined to answer the Sun’s questions about his position on the pool.
Yet the EBID officials believed that the “terrible” consequences of New Mexico’s falling into noncompliance with its Compact obligations might incentivize an attempt to build up a “savings account” of credit water at EBL. Compact New Mexico entered the 2021 irrigation season with a 96,300-acre foot debit to Compact Texas incurred, in Esslinger’s and King’s opinion, because the Middle Rio Grande Conservancy District, the upstate irrigation management agency that was EBID’s counterpart, depleted more than its allotted annual share of Compact water.
Every year New Mexico owed Texas 57 percent of the Rio Grande waters that flowed into New Mexico from the river’s headwaters in Colorado, as measured at the Otowi Bridge gage on the Rio Grande just north of Espanola. “There is no 57 percent showing up at Elephant Butte. They’ve been chronically short these last few years,” King asserted. “In 2019 we had a really big wet year, and they fell behind; last year we had a really dry year and they fell further behind.”
King contrasted Compact New Mexico’s recent delivery performance with that of Compact Colorado. “They hit their obligations bang-on every year,” he said. To ensure that it does not short New Mexico, Colorado employs the tough-love approach of “priority administration” of whatever irrigation water resources are available. In other words, allocations go first to those with the most senior—or oldest—water rights. “If they have to shut some farmers down in order to meet Compact requirements,” King asserted, “they will.” The Colorado state engineer, whose office oversees the state’s water rights filings and records, was charged with making priority administration decisions, King explained, dismissing the Sun’s question about how the state engineer handled the political explosiveness of these profit-and-loss determinations. “That’s his job and he does it.”
New Mexico’s state engineer has planned for, but not yet activated “priority administration” of Rio Grande flows between the Colorado border and Elephant Butte Lake. As a consequence, New Mexico is likely to accumulate a debit to Compact Texas in excess of the cap of 200,000 acre feet within the next year or two. “There is nobody who doesn’t believe we aren’t going to fall off that cliff,” King claimed. If and when that happens, Compact Texas will sue, and the federal courts will ultimately require Compact New Mexico to come into compliance through the institution of involuntary and drastic conservation measures, as King and Esslinger sized up the situation. “That is what New Mexico seems to be waiting for it to happen,” King elaborated. “Let the courts come in and be the bad guy.” Wouldn’t it be preferable to better manage water resources now and avoid court-imposed restrictions on water use in New Mexico?, he and Esslinger argued. Didn’t it also make sense to prioritize building up over time a pool of Compact New Mexico credit water as a cushion instead of courting disaster by edging ever closer to the 200,000 acre feet cap?, they had been advocating since at least 2019—to no avail.
“Compact New Mexico has to get its house in order and make at the minimum delivery of water to Compact Texas,” King insisted in late May 2021. “If they can do that, there is no reason why they couldn’t then build up a pool of credit of 50,000 acre feet over time. They could build the pool up at Elephant Butte and just keep it there.” To compensate for the pool’s annual water losses due to evaporation, Compact New Mexico would have to over-deliver 6,000 acre feet to EBL over the course of each year. “That’s actually not all that much water,” King said, “in the larger scheme of things.”
PERSPECTIVE OF THE MIDDLE RIO GRANDE
Mike Hamman, MRGCD’s chief executive officer and chief engineer, begged to differ. Asked by the Sun how and when his irrigation district might be able to help Compact New Mexico reduce its debit, Hamman said: “I can’t give you a timeframe; you tell me when it’s going to rain and snow, and I can tell you when we are going to dig out of it.”
Hamman described what he called the “very prescriptive actions” MRGCD had taken in an attempt to help meet Compact obligations. “Our board has approved shortening the irrigation season both last year and this year, and we’ve restricted diversions to about 80 percent of what we would normally divert during an irrigation season,” he explained. “Our farmers are suffering.”
To meet Compact and Project obligations, EBID had also shortened its irrigation season. But EBID had taken the additional conservation measure of restricting its farmers’ water allocation to a scant four inches per acre, enough for a single irrigation of a member’s fields, as opposed to the three or four feet of water per acre that had been allocated EBID farmers each season during non-drought years in the 1980s through the early 2000s.
EBID could deliver water with a precision unavailable to its northern counterpart because Gary Esslinger had made efficiency a priority over the two-plus decades he had served as EBID’s manager-treasurer. Under his leadership, EBID had begun systematically laying pipe in the open ditches leading to farmers’ fields to channelize water flow, with the result that some 50 miles of the district’s 350 miles of laterals were now piped. And EBID had invested in the installation of metering instruments at every diversion point in its irrigation system. “I started instrumenting our canals, our drains, our spillways back to the river—everything started getting metered,” Esslinger explained. “Then I started metering the turnout, where the farmer gets his water. Now we can prove to our friends downstream that our surface water is being used properly. All of this has taken 20, 30 years to advance; it didn’t happen overnight.”
The Middle Rio Grande Conservancy District lacks equivalent monitoring capabilities, according to Esslinger and King. “I know every drop of water our farmers get because it is metered and measured and they get billed,” Esslinger claimed. “That doesn’t happen in the Middle Rio Grande. They measure their diversions and returns, but they don’t measure their deliveries to their farmers’ headgates.”
Having real-time data allows EBID to make hard choices about its allocations, King pointed out. The Middle Rio Grande Conservancy District, he argued, had neither the political will nor the hard data to precisely control and, if necessary, restrict farmers’ water allocations. “You cannot manage water unless you measure it,” King said. “That’s been our mantra at EBID for a long time.”
Hamman insisted to the Sun that MRGCD was doing its best to maximize the efficiency of its downstream deliveries. “If we can get 30 percent [of the water flow measured at Otowi Bridge to Elephant Butte Lake for future release to Compact Texas] during peak of irrigation season, that’s pretty good,” he said. “Then we make it up with the summer rains as the season goes on, and we get close to 90 or so percent efficiency [of delivery] in the winter months, when the evapotransporation drops to zero.”
Hamman pointed out, however, that several factors outside MRGCD’s control reduced the efficiency of its Compact deliveries. In partnership with the BOR and in coordination with the U.S. Fish and Wildlife Service, the irrigation district was responsible for modifying river flows to support spawning habitat for the endangered Rio Grande silvery minnow. Then there were water losses due to the river’s natural recharge of groundwater pumped by the Middle Rio Grande Valley’s municipalities and domestic wells. Thirdly, the unmediated river course, arguably as far north as Isleta and south to the northernmost reaches of Elephant Butte Lake, needed greater state and federal investment in channelization and vegetation and sedimentation control to maximize the water flows that reached Elephant Butte Lake.
Infrastructure improvement was indeed a component of the long-term solution for bringing Compact New Mexico back into compliance. Stymied when her emergency teleconference on May 7 ended without identifying an immediate solution to the crisis at EBL, state Representative Dow had joined two other state legislators whose districts included Sierra County—Senator Crystal Diamond and Representative Luis M. Terrazas—in sending a letter to New Mexico’s Congressional delegation requesting funding support for specific infrastructure projects of benefit to Elephant Butte reservoir. “The lawmakers asked for . . . $30 million for Reclamation to clear sediment in the Socorro and San Marcial reaches of the middle Rio Grande and $5 million for the Bureau of Land Management to . . . improve drainage surrounding the reservoir,” the Albuquerque Journal reported in mid June reported in an article headlined “We’re Sounding the Alarm on Waterflow Elephant Butte Managers Say.”
In the short term, Hamman believed it inadvisable for Elephant Butte Lake stakeholders to look to the MRGCD as a source of water for the recreational pool, as Esslinger and King proposed. In the spirit of brainstorming he discussed with the Sun a couple of different solutions. The Albuquerque Bernalillo County Water Authority had a contract with the BOR to store up to 50,000 acre feet of San Juan-Chama water at Elephant Butte Lake. The contract had been negotiated a decade or so ago, when Rio Grande flows were more robust, and the water authority was concerned with securing additional storage should upstate reservoirs become filled to capacity. Could common concern for the health of the state’s tourism sector encourage the water authority’s greater use of its authorized “city pool” at EBL?
Or, perhaps a recreation pool could be built incrementally with an annual acquisition of, say, 5,000 acre feet of water from other SJ-C contractors, in particular the Six Middle Rio Grande Pueblos, which have New Mexico’s most senior water rights. Hamman guesstimated that acquisition costs would be in excess of $100 an acre foot, or about $500,000 a year for the five years it would take to build up a 50,000-acre foot pool.
Esslinger and King, aware that several years previously EBID had agreed to lease water to the City of El Paso for $300 an acre foot, believed Hamman’s estimate to be low. Even the price of $300 an acre foot represented in their opinion a “floor, not a ceiling.” As leasing water to create a recreation pool would be expensive and the source of funding unclear, they stood by their proposal that the “most effective and equitable way” to stabilize the water level of Elephant Butte Lake was by building up a Compact credit pool. Compact New Mexico “would do that by taking water out of the Middle Rio Grande,” King argued yet again, “which is not what Mike wants to see, that’s contrary to the interest of his employer, so he is understandably lacking in enthusiasm for our suggestion.”
WHY EBL’S FUTURE IS MUDDY
Whether Elephant Butte Lake stakeholders will succeed in generating broad-based state and federal “enthusiasm” for a permanent recreational pool looks increasingly difficult, any way you slice it. New water management policies for New Mexico are soon to be formulated at the highest levels of state government, and how they will affect Elephant Butte Lake is still to be determined. In 2019 Governor Michelle Lujan Grisham New Mexico’s charged New Mexico’s Interstate Stream Commission (whose director is the deputy state engineer) with developing a 50-year water management plan based on scientific analysis and projections. An eight-member advisory panel of scientists (including hydrologist and civil engineer Phil King) recently completed their assessment for the ISC of the likely impact of climate change on the state’s water resources, and the ISC has begun hosting a series of webinars to share the panel’s preliminary findings. They are dire. Models discussed at a July 23 webinar predicted annual average statewide temperatures could rise between 5 and 7 degrees Fahrenheit over the next 50 years, degrading the quantity and quality of the state’s water supply.
The governor has pledged that the principles of stewardship, equity and sustainability would guide the plan’s recommended water management reforms. However, given all the competing priorities for what will surely be a scarcer resource, Elephant Butte Lake stakeholders will have to fight like hell to ensure that the plan takes into consideration their economic and environmental interests. While EBID officials have articulated a way for Compact New Mexico to stabilize Elephant Butte Lake and avoid a costly and probably losing court battle with Compact Texas, it is not clear that Sierra County’s political, business and civic leaders have the clout or persistence to effectively lobby for Esslinger and King’s solution or any significant re-prioritizing of statewide water use in Elephant Butte’s favor. Representative Rebecca Dow, the convenor of the May 7 emergency teleconference, has turned her attention to her announced run for the Republican nomination for governor in 2022, and U.S. Representative Yvette Herrell, the primary signatory of a letter sent to the BOR’s acting commissioner urging support of the permanent pool, must attend to other constituent needs in her southern New Mexico congressional district, which covers the largest geographical area in the country outside single Congressional- district states.
Elephant Butte Lake was still at 6.4 percent of capacity and held about 125,000 acre feet of water as of July 29, according to waterdatafortexas.org. Campers line the receded shoreline, and boaters, sailors and jet skiers ply the remaining 5.76 miles of surface water. The need to identify and implement a plan to “save the lake,” so urgently felt in Sierra County in the spring, has given way to a determined focus on fun in the sun and business as usual.
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.