The tony neighborhoods tucked into the juniper-dotted grasslands on the east side of the Sandia Mountains represent yet another battleground in New Mexico’s water wars, one in which the state’s top water official has abandoned one side for the other.
Recently, testimony ended in a trial over whether a private company can pump more water—114 million gallons more each year—from the Sandia Basin.
Nancy Benson and her husband live in San Pedro Creek Estates, where they built their retirement home in 2000 after living in Albuquerque. She is shocked the state would consider granting the application after rejecting it previously. “This area is fully appropriated, there is nothing extra,” she said. “The scale of this is just mind-bending.”
Like other East Mountain residents who are protesting the application, she has firsthand knowledge of drying domestic wells. “We assumed our builder knew what he was doing, so when we built the home we drilled [our well] to a little over 150 feet,” Benson said. “In 2011, that well went dry.” They drilled a second well to 300 feet, she said, which cost them about $10,000.
During the trial, she had a few minutes to address District Court Judge Shannon Bacon. “The essence of my point was that she can’t protect us from climate change—nobody can—but we urged her to deny the Aquifer Science appeal to pump 312,000 gallons of water each day for thousands of new homes from this extremely fragile aquifer that just barely meets the needs of the existing homes,” Benson said. “Many people who testified had already lost their wells to drought.”
In Bernalillo County, hydrogeologist Philip Rust and his colleagues have found through the county’s water level monitoring project that, on average, water levels in the East Mountain area are dropping 1.8 feet per year. And many domestic wells are drying within the Sandia Basin, a 400-mile area that stretches from Placitas to Tijeras and Sandia Crest to Edgewood.
It’s happening elsewhere, too. A peer-reviewed study published earlier this year of more than 2 million groundwater wells in 17 states, including New Mexico. The researchers found that one-in-30 wells no longer produce water, and they noticed two “hot spots” for drying in New Mexico. One of those is the Estancia Basin just south of Moriarity.
Conditions aren’t likely to improve in the short- or long-term: Compared with last year’s relatively wet conditions, most of New Mexico is currently experiencing moderate to extreme drought, and as the region continues warming, there will be even more pressure on both rivers and aquifers.
The water case dates back nearly a decade.
In 2009, Aquifer Science LLC applied to the Office of the State Engineer for a permit to drill four wells in the Sandia Water Basin. Campbell Corporation and the Nevada-based water development company Vidler Water Company formed that company.
Campbell has long ties with New Mexico: In the 1930s, what was then called Campbell Farming Corporation stated buying land in New Mexico, eventually acquiring more than a half-million acres, including 325,000 it used for cattle ranching. By the late 1980s, the company turned toward development and real estate. Its handful of communities in the state include San Pedro Creek, San Pedro Overlook and Santa Fe Farms and Ranches.
These lands encompass the San Pedro Land Grant, which the Mexican government gave to families in the early nineteenth century. According to the San Pedro Neighborhood Community Plan, the area was rural ranchland until the 1960s, when ranchers hit by the 1950s drought started selling off their land and lots were platted into 10 to 40 acre parcels.
More recently, Campbell, Vidler and Aquifer Science proposed pumping 1,500 acre feet of water per year to supply a planned development on 25,000 acres owned by Campbell along Highway 14 in Bernalillo, Sandoval and Santa Fe counties.
Two years later, the company reduced its request to 1,010 acre feet per year. Then, in 2013, it knocked down its plans once more—to a master plan area of 8,000 acres and a water diversion of 717 acre feet per year. The development would include four villages with a golf course, a hotel and nearly 4,000 homes.
In 2014, the Office of the State Engineer denied the company’s application.
In that report, which was accepted and adopted by then-State Engineer Scott Verhines, the state noted it had previously denied a number of groundwater applications in that area during the late 1980s through 2004.
Those earlier permits were rejected because the Office of the State Engineer found they would harm existing water rights in the area, and “be detrimental to the public welfare of the state.” According to that 2014 document, those previous decisions, along with recent groundwater studies of the area, led Verhines and his staff to conclude there is no unappropriated groundwater available in the Sandia Basin.
Aquifer Science appealed the state’s decision in District Court and has since dropped its request down to 350 acre feet per year, or about 114 million gallons per year. And though the defendant in the case is former State Engineer Scott Verhines, the current State Engineer, Tom Blaine, now supports the company’s application.
NM Political Report requested that the Office of the State Engineer explain its position on the appeal and permit application and clarify a recent quote in the March 4, 2018 edition of The Santa Fe New Mexican:
A spokeswoman for Blaine, Melissa Dosher-Smith, declined to comment on the specific case but said in cases like this, it all comes down to balance.
“State engineers have balanced the needs for over a century with demands for water for development and the scarcity of New Mexico’s water resources,” she wrote in an email. “Our water code directs the state engineer both to protect existing water rights and to allow unappropriated water to be placed for beneficial use.”
Dosher’s email response to NM Political Report was no clearer: “In regards to your question, this is a pending legal matter which we are responding to in court,” she wrote.
The New Mexico Environmental Law Center, which represents local community members opposed to the water application, declined to comment on the case. But like Benson, Kathy Cooper is also a protestant who lives in San Pedro Creek Estates. Their well was drilled in 2003 to a depth of 360 feet, and she and her husband have been measuring it since 2014. Over the past four years, she said, it has dropped 9.6 feet.
Unfortunately, it’s a familiar scenario for Cooper and her husband. Before moving to San Pedro Creek, they lived in a Cedar Crest neighborhood where homes shared wells. The homeowners association measured the wells regularly, she said, and noticed all four dropping substantial amounts every year.
“Our biggest concern is that if our well dries up, the property value of our home and our land is zero,” said Cooper. “We just don’t feel it’s fair that a big company can come in here and mine the water and send it somewhere else, when it should be for the benefit of the people of New Mexico.”
Based in Carson City, Nevada, Vidler Water Company develops water projects throughout the southwestern United States. In some instances, the company will buy ranches or agricultural lands, maintaining those operations or purchasing water rights and then converting them for municipal, industrial or commercial uses, said Vidler’s vice president of water resource development, Greg Bushner.
The company will also apply for new groundwater appropriations, like with its proposal in the East Mountains. “Think of us as a wholesaler,” he said. “We’re not a utility, but we can provide water to a utility, so a community can grow in however they are looking forward to growing.”
Bushner said the company studied exploratory wells on Campbell’s property, and is confident water is available. The Sandia Basin is highly fractured and variable, and their wells will be located where the aquifer is nearly “untapped,” Bushner said.
The company also studied the replenishment of groundwater through snow and rain, and its recharge analysis validates water is available: “We would not undertake a project unless we thought the water was available and also sustainable,” he said.
Without water rights, Campbell can’t develop its new project, he said. And Vidler has no plans to export water out of the area.
Under New Mexico state law, when a person or company applies for an application to drill for groundwater, they must show where and how the water will be used and prove that it will be put to “beneficial use.”
Bushner pointed out that someone can’t say they’ll use the water one way, and then use it for a different purpose or transfer it after the application has been approved. “That’s not allowed by the State Engineer, and that’s not our intent,” he said. “We’ve always had the intent to provide the water resources for the Campbell Ranch Master Plan.”
US Supreme Court to decide how states share the drying Rio Grande, and New Mexico could lose big
By Laura Paskus
As severe drought returns to New Mexico, farmers and skiers alike fret over the state’s lack of snow. Meanwhile, on a cold, cloudy Monday morning in Washington, DC, attorneys for New Mexico, Texas, Colorado and the United States government grappled over the muddy waters of the Rio Grande.
In its US Supreme Court case against New Mexico and Colorado, the State of Texas says that by letting farmers in southern New Mexico pump from wells near the Rio Grande, our state has failed to send its legal share of water downstream. The water fight has some New Mexicans gnawing their nails—and not just southern farmers whose water rights could be cut if Texas prevails.
Monday’s oral arguments before the court, over whether the feds can intervene under the Rio Grande Compact, drew a large crowd from the Land of Enchantment. Watching the proceedings from the audience were some of the state’s most prominent water attorneys, as well as Attorney General Hector Balderas, State Engineer Tom Blaine, an entire crew of employees from the Office of the State Engineer, officials from the City of Las Cruces and the Albuquerque Bernalillo County Water Utility Authority, and US Sen. Tom Udall.
Like everyone else, New Mexico’s senior senator, a Democrat, had to check his coat and belongings before entering the court, and after arguments, Udall said he wanted to be there because the case will affect the management and division of water use by farmers and communities for decades.
“Regardless of the ultimate decision, it’s critical that we understand that one of the root causes of the dispute is the increasing scarcity of water in the Southwest, and climate change is making that worse,” he said. “We must seek cooperative solutions or there will be more disputes over water—not fewer.”
There’s a lot at stake: The state has already spent $15 million on staff and legal fees. And if the Supreme Court decides in favor of Texas, New Mexico could owe a billion dollars or more in damages and be forced to curtail groundwater pumping around places like Hatch, Las Cruces and Mesilla.
Now entering its sixth year, No. 141, Original: Texas v. New Mexico and Colorado stems from a deal two irrigation districts signed with the federal government during the drought of the 2000s.
After the relatively wet decades of the ’80s and ’90s ended, the Elephant Butte Irrigation District and El Paso County Water Improvement District No. 1 watched reservoir levels drop. In 2008, they decided to share water through dry times. The two signed a new agreement with the US Bureau of Reclamation, operator of the Rio Grande Project, which is anchored by Elephant Butte Reservoir.
But the two states weren’t parties to that agreement—and then-New Mexico Attorney General Gary King sued the federal government, alleging too much water was being given to Texas.
In 2013, Texas fired back against New Mexico and Colorado, pointing out that by allowing farmers to pump groundwater connected to the Rio Grande, New Mexico had for decades taken more than its legal share of water under the Rio Grande Compact of 1938.
That’s the case moving through the US Supreme Court. But things are even more complicated than they seem.
That’s in part because under the compact, New Mexico doesn’t deliver Texas’ water at the state line. Rather, water goes to Elephant Butte Reservoir, about 100 miles north of Texas. From there, the Bureau of Reclamation delivers it to farmers in both southern New Mexico and Texas.
Now, the United States says that by allowing farmers to pump groundwater, New Mexico has harmed its ability to deliver water under the compact, as well as under the international treaty with Mexico.
And that brings us to Monday’s oral arguments before the Supreme Court.
Oyez, oyez, oyez
After the marshal opened court to session (though not with the sonorous “Oyez! Oyez! Oyez!” that podcast listeners might be familiar with from Radiolab’s More Perfect), the nine justices handled initial business then turned their attention to the Southwestern water case.
When New Mexico signed the Rio Grande Compact, the feds say, it agreed to protect the Rio Grande Project and allow Reclamation to release water to meet treaty and compact obligations.
“Where the compact protects specific federal interests that are at stake in the dispute that’s been filed in this court, then we believe the United States can intervene as a plaintiff and bring claims against New Mexico that are based on that compact,” said Ann O’Connell, assistant to the solicitor general with the US Department of Justice.
She later added that the federal government’s interests are at stake in delivering water to Mexico—and therefore it wants to be a party to the case, representing federal interests, rather than being an impartial amicus. “The court’s standard for intervention is that intervention of the United States is appropriate where there are distinctive federal interests at stake that are best presented by the United States,” she said.
Speaking Monday night, John Stomp, chief operating officer of the Albuquerque Bernalillo County Water Utility Authority, said he worries about federal overreach and states’ water rights. Along with the City of Las Cruces, the authority had filed amicus briefs in the case, opposing the position of the US.
If the Supreme Court allows the federal government to intervene in the case under the compact—which seems likely, just based on questions justices asked on Monday—and Reclamation can start making decisions about groundwater pumping in the Lower Rio Grande, that could be a “real problem” for New Mexico, Stomp said.
“It seems simple enough to say, ‘Okay, what’s the next step for the feds? Do they own the groundwater in the Middle Rio Grande also? Or in other areas where they have reservoirs or compact deliveries?’” he said. “We don’t know where it stops.”
A clear case?
There’s no doubt that the federal government, Texas and Colorado drew big guns for oral arguments, including previously mentioned assistant to the solicitor general O’Connell; Scott Keller, solicitor general of Texas; and Frederick Yarger, solicitor general of Colorado.
Of the four parties, New Mexico was the only one to have a private attorney stand before the mahogany bench. Marcus Rael Jr. of Robles, Rael & Anaya in Albuquerque represented New Mexico; his former law partner, the New Mexico Attorney General Hector Balderas, watched from the gallery. Rael may be politically connected, but he’s not a water attorney. And until Monday, he also lacked experience before the high court.
During the fast-paced arguments, seven of the nine justices questioned each of the attorneys, parsing their way through Western water rights and the role Reclamation plays in both Texas and New Mexico. (Clarence Thomas stayed characteristically quiet and Samuel Alito asked no questions.) Many asked questions about the compact, the Reclamation Act of 1902 and treaty rights.
For Associate Justice Stephen Breyer, however, the case was clear.
In response to Colorado’s opposition of federal intervention, Breyer cited the US Constitution, which allows the federal government to intervene in cases in its own interest.
“Obviously, the founders who wrote this wouldn’t want three or four or five or six states to enter into some compact that might wreck the Union,” Breyer said. “So doesn’t that suggest that they do have a right, the United States, to intervene, at least where there is a federal interest?”
It seems “quite simple,” he said: “The Constitution foresees that they can intervene where there’s an interest. They have several interests. End of case, unless there is something that I don’t see.”
Colorado and New Mexico don’t see it that way, of course.
New Mexico doesn’t object to the US joining the case; in fact, the state argues it is a necessary party to the suit. But New Mexico doesn’t want the federal government to raise a claim under the Rio Grande Compact.
After questions from multiple justices, including Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, New Mexico’s Rael tried to clarify that distinction, noting that the US doesn’t own water rights itself under the compact or through the Rio Grande Project.
“Those water rights are owned by the landowners themselves who are represented by their individual states as parens patriae,” he said to Kagan. “And so the United States has an interest in the project, and they can certainly sue to enforce to make sure that we’re meeting our—that we’re not interfering with its project obligations, but it can’t sue us under the compact.”
Lawsuit was ‘a bottom-feeder’
In a way, this is familiar ground for New Mexico.
In the 1970s, Texas sued New Mexico over the Pecos River, alleging that for decades New Mexico shorted it on water deliveries under the Pecos River Compact of 1948.
That case was “vigorously litigated by New Mexico,” says Jay Stein, of the Santa Fe firm Stein and Brockmann, which, in this case, represents Las Cruces and Albuquerque’s water utility. During the Pecos showdown, Stein worked for the Office of the State Engineer.
New Mexico disputed the magnitude of Texas’ claims, he says, with hydrological evidence and legal motions—and reduced the shortfall it owed by about 70 percent. Texas was originally claiming damages of over $100 million, he says, and New Mexico ended up paying just $14 million.
As part of the Pecos settlement agreement, implemented after New Mexico lost the case in the US Supreme Court, the state also spent about $100 million buying water rights and drilling augmentation wells, all to make sure it complies with the compact and makes its deliveries to Texas.
In a 2002 book on the case, High and Dry: The Texas-New Mexico Struggle for the Pecos River, G Emlen Hall writes that no winner emerged in that suit. “The lawsuit was a bottom-feeder, sucking up an entire river basin, the institutions built for it, the communities dependent on it and the human lives devoted to it,” writes Hall. “The lawsuit didn’t so much chew up and spit out in pieces the things with which it came into contact as it swallowed them whole, leaving only the outlines of its victims, distended and struggling, in its maw.”
Stein uses less colorful language, but warns that No. 141 is important—especially if the Supreme Court agrees with O’Connell’s arguments on Monday. In that event, New Mexico will face not only Texas’ claims, but the federal government claiming ownership or administrative control over groundwater in the Lower Rio Grande, Stein says.
This is just the beginning.
After the Supreme Court decides on the federal role, the real work starts: parties filing answers and counterclaims, presenting factual defenses on the record, performing hydrologic studies and more. Much more.
Still time to recover
Outside the courtroom, there’s another reality to acknowledge—one that people in Albuquerque wearing short sleeves on Christmas or Santa Feans looking up at the snow-starved Sangre de Cristos already know. As the region keeps warming, ground and surface water supplies are already under pressure. Last year was the warmest on record for New Mexico, and that trend will continue. Recent studies show that flows on the Colorado River and Rio Grande are expected to decrease, and that warming affects groundwater supplies. That’s in part because when rivers and streams are low, people try to get more water from below ground.
Where there are conscious efforts to protect or supplement aquifers, groundwater levels can start to rebound. But in many other places, from Hobbs to Gallup, groundwater levels are dropping at alarming levels—and even still show the impacts of being overpumped during the drought of the 1950s.
In a 2015 report to the New Mexico Legislature, scientists wrote that the Mesilla Valley aquifer “may no longer have the capacity to provide a reliable, supplemental supply during extended drought conditions and with the current levels of intensive use of groundwater.” Between 1985 and 2010, they found, water users in Doña Ana County depleted the aquifer by 2.5 million acre-feet. They also found that between 2002 and 2015, groundwater pumping in the Mesilla Valley resulted in a 26-foot water level decline in one location.
Just last week, the National Weather and Climate Center released its water supply projections. For the Rio Grande Basin, snowpack and precipitation are at or near record lows. “While there is still time to recover, the snowpack deficits are already large, and chances for spring and summer streamflow being anywhere near normal are highly unlikely,” the forecast hydrologist wrote in his email with the preliminary forecasts. “For many forecast points, there is a better chance of setting a low runoff volume record than there is of seeing near normal runoff.”
Southern farmers in limbo
That’s bad news for everyone, especially farmers in southern New Mexico who feel they’re not represented by any of the interests—New Mexico, Texas, Colorado or the federal government—duking it out over the Lower Rio Grande.
Recall that New Mexico’s water deliveries to Texas are complicated under the Rio Grande Compact: New Mexico doesn’t deliver water across the state line, but to Elephant Butte Reservoir. Downstream of the reservoir, but north of the state border, there are about 60,000 acres of fields and orchards.
The Elephant Butte Irrigation District tried unsuccessfully to intervene in the Supreme Court case, and while the district’s attorney, Samantha Barncastle, had tried to be optimistic, Monday’s arguments left her nervous.
“We don’t know who is going to look out for EBID’s interests,” she says. The state engineer, she says, has historically protected cities over the interests of farmers. The federal government has its own interests and is now setting its sights on groundwater pumping. And during oral arguments, Texas’ attorney said his state didn’t agree with the 2008 Operating Agreement EBID had signed with Reclamation and the Texas irrigation district—the agreement New Mexico opposed all along.
That puts EBID back on the chopping block, she says.
“It’s absolutely imperative that our ag economy continue to have access to the groundwater, our savings account, when there’s not water in the reservoir, which is our checking account,” Barncastle says. “Farmers, like every other water user, have no interest in seeing the savings account run dry. We don’t want to harm it. We just want to be able to rely on it in times of need.”
She also worries that if the justices decide that the US can assert a federal interest in a case between states, that could affect other interstate river compacts.
What Barncastle seems to want more than anything, though, is an end to fighting. It would be better for people to control their own destiny, she says, and work together instead of litigating.
“When you’re talking about a multi-billion dollar agricultural economy and municipalities and colonias, and all these different water users, you have got to look at other solutions beyond pure litigation,” she says. As interesting as it was for everyone to come to the Supreme Court this week, she says, how things might shake out is scary.
Leaving the court later that day, past the contemplative figure of Justice and her scales, the gray sky starts to spit freezing rain. Women flip open umbrellas, men hunker down into their scarves. New Mexicans, though, lift their faces to the rain.
This story was reported in partnership with NM Political Report, New Mexico In Focus and KUNM-FM.
To read the background documents on Texas v. New Mexico and Colorado visit scotusblog.com/case-files/cases/texas-v-new-mexico-and-colorado
Does No. 141, Original: Texas v. New Mexico and Colorado have you befuddled?
It’s okay. Things are complicated. Here’s a timeline to help you keep track of the Supreme Court lawsuit New Mexico is facing on the Lower Rio Grande.
1902 – The United States Reclamation Service (now the US Bureau of Reclamation) is established to study and develop water resources in Western states.
1906 – The United States and Mexico sign a convention to ensure the Rio Grande’s waters are shared equitably between the two countries.
1906 – Construction begins on dams and canals on the Rio Grande. Leasburg Diversion Dam and Canal is completed in 1908, Elephant Butte Dam in 1916 and Caballo Dam in 1938. The Rio Grande Project, operated by the Bureau of Reclamation, provides irrigation water to farmers in southern New Mexico and Texas.
1938 – Colorado, New Mexico and Texas work out the Rio Grande Compact in a desire to “remove all causes of present and future controversy” among states and their citizens. The treaty was ratified by the three states and passed by Congress in 1939, and amended in 1948.
1950s – Drought strains water supplies along the Rio Grande. Farmers along the Rio Grande in Southern New Mexico and Texas drill about 1,000 new irrigation wells to supplement surface water supplies with groundwater.
2003 – After decades of relatively wet conditions, drought hits New Mexico, putting a strain on Rio Grande water supplies and reservoir levels.
2006-2007 – US Bureau of Reclamation creates a new operating procedure, which water users in southern New Mexico (Elephant Butte Irrigation District) and Texas (El Paso County Water Improvement District No. 1) sue over.
2008 – US Bureau of Reclamation, the Elephant Butte Irrigation District, and the El Paso County Water Improvement District No. 1 come to an agreement over water deliveries and sharing. The states of Texas and New Mexico are not a part of this new operating agreement for the Rio Grande Project.
2011 – Then-New Mexico Attorney General Gary King sues the US Bureau of Reclamation in New Mexico federal district court over the 2008 Operating Agreement, alleging that too much water was being given to Texas—water that should have stayed in New Mexico.
2013 – Texas sues New Mexico and Colorado in the US Supreme Court over violations of the compact. Texas alleges that by allowing farmers to pump groundwater connected to the Rio Grande, New Mexico has been taking more than its share of compact water. Texas wants the court to make New Mexico pay for the water it has been taking, over the course of many decades.
2014 – Special Master A Gregory Grimsal is appointed in the case and directed to submit reports to the court.
2014 – US Bureau of Reclamation intervenes in the case, alleging that by allowing farmers to draw water from the river and below ground, New Mexico is allowing people to use more water than they legally should. And it says New Mexico’s diversions interfere with water deliveries to Mexico.
2014 – New Mexico makes a motion to dismiss Texas’ complaint. (The court denies this in 2017.)
2015 – In a report to the New Mexico Legislature, scientists note that the Mesilla Valley aquifer “may no longer have the capacity to provide a reliable, supplemental supply during extended drought conditions and with the current levels of intensive use of groundwater.”
2016 – The special master releases his draft report, which indicates Texas has the upper hand in the lawsuit and recommends the high court reject New Mexico’s motion to dismiss.
September 2016 – US Bureau of Reclamation releases its final decision and environmental studies related to the 2008 Operating Agreement, which outlines operations through 2050.
January 2017 – New Mexico Office of the Attorney General, Office of the State Engineer and the Interstate Stream Commission announce they are working together on the case and also enter into joint defense agreements with New Mexico State University, PNM, the New Mexico Pecan Growers Association, Southern Rio Grande Diversified Crop Farmers Association, the City of Las Cruces and Camino Real Regional Utility Authority.
February 2017 – Special Master finalizes his first interim report. Parties have the chance to reply and/or file exceptions to his report.
January 2018 – Oral arguments occur in US Supreme Court. Justices hear from attorneys for Colorado, New Mexico, Texas and the federal government.