Feds Entitled To N.M. Water?

State officials this week claimed the federal government was overstepping its bounds and threatening the rights of other water users as a battle over groundwater rights in the Rio Grande Valley of southern New Mexico spilled out of the courtroom and into rare public view.

“It has the potential to double the water rights that the feds claim in the south,” Rep. Brian Egolf, D-Santa Fe, said in an interview Tuesday.

The state-federal conflict has been quietly simmering for months in the 3rd District Court in Las Cruces, the traditional forum for New Mexico water rights determination. In its most recent court filing, the federal government said it should be legally entitled to “water in the ground that is necessary for deliveries downstream.”

Egolf charged that amounted to a federal claim to essentially any groundwater in the basins between Elephant Butte Dam and the Texas-New Mexico border. It could even permit the U.S. Bureau of Reclamation to install groundwater pumps in New Mexico to ship water to Texas, at the expense of New Mexico water users, Egolf said.

“There’s not necessarily a limit to what the feds are claiming,” Egolf said in an interview.

A top federal official denied Egolf’s claim.

Egolf’s comments came after a testy hearing before the Legislature’s Water and Natural Resources Committee in Las Cruces. State officials and others who object to the federal claim, including a representative of the city of Las Cruces, testified. Representatives of the Bureau of Reclamation declined an invitation, citing ongoing litigation over the issue.

The federal government’s claim has drawn a wide range of legal opposition, including from the city of Las Cruces, New Mexico State University and the New Mexico Office of State Engineer.

The argument is over water rights administration on a stretch of the Rio Grande from Elephant Butte reservoir to the Texas-Mexico border. Determining federal rights to water in the region is a central piece of an ongoing state effort to figure out how to share the region’s dwindling water supplies among the area’s farms and cities.

Key to that process is the state’s legal responsibility to regulate groundwater pumping. The federal government’s claim could push farmers to the front of the water line, ahead of others who would otherwise be entitled to it, said D.L. Sanders, chief counsel for the Office of State Engineer.

The federal government’s argument, detailed in hundreds of pages of legal briefs filed with the state court in Las Cruces, hinges on arcane legal issues reaching back to before New Mexico’s statehood.

But it boils down to this: The Bureau of Reclamation’s ability to supply water to farmers through the Rio Grande and the irrigation ditches that surround it depends on the agency’s ability to have some control over the groundwater beneath the fields, ditches and river, federal lawyers argue.

Because of connections between surface water and underground aquifers, heavy pumping by southern New Mexico residents has cut into the irrigation supply the agency is supposed to be supplying to farmers in the area, Mike Hamman, head of the Bureau of Reclamation’s Albuquerque office, said in an interview Tuesday.

“We need to protect that supply,” Hamman said.

Hamman denied Egolf’s charge that the federal government’s position, if upheld by the court, would allow the bureau to pump New Mexico groundwater to Texas. “That’s not part of our claim,” Hamman said.

Steve Hernandez, an attorney for the Elephant Butte Irrigation District, the region’s largest farm water district, disagreed with Egolf’s claim that the federal government was trying to expand its water claims.

He believes the total amount of water to be used for area farms has already been limited in related District Court proceedings, meaning the federal government cannot take more than is already being used by farmers.

“It is not a federal grab,” Hernandez said Tuesday, “because the amount of water is capped.”
— This article appeared on page A1 of the Albuquerque Journal