Forty miles downstream, the irrigation canals that normally supply Pecos River water to the farmers of the Carlsbad Irrigation District are dry.
Facing another year of shortfall, the Carlsbad farmers are looking angrily at the groundwater pumping by their upstream neighbors.
“They have been sucking us dry,” said Oscar Vasquez, a Carlsbad cotton farmer and member of the irrigation district board who was part of a unanimous board vote April 2 demanding that the state shut down the upstream pumping.
It is a conflict that highlights a widespread problem in New Mexico. Groundwater pumping has long provided a reliable hedge against drought in the state’s arid climate. But, over time, it lowers flows in nearby rivers. River users usually have higher priority water rights, but, by the time they complain, it is often too late. It can take years for the groundwater to respond enough for neighboring rivers to rise in response.
Such is the case on the Pecos, according to New Mexico State Engineer Scott Verhines, the official responsible for dealing with the problem. “I don’t think they’re going to see … water in any significant amount that will let them make their crops this year,” Verhines said in an interview.
Similar conflicts are cropping up elsewhere — in a lawsuit by Texas against New Mexico involving groundwater pumping in the Hatch and Mesilla valleys, and a state court suit over management of water rights in Bernalillo and Valencia counties.
“You have overpumping of the resource, and that dries up other people’s water rights,” said Janet Jarratt, a Valencia County farmer who is engaged in a legal fight to protect her rights.
Water like magic
In Roswell, the water at first seemed like magic. Farmers early in the 20th century punched wells into the ground and the water just flowed, the underground pressure sometimes creating towering fountains. To the south, the town of Artesia took its name from the “artesian” flow, which happens when groundwater is under such pressure that no pumps are required.
The magic happened in a relatively unique groundwater system, with rain and melting snow in the nearby Sacramento Mountains seeping into a layer of limestone that dips down into the Pecos Valley beneath Roswell and Artesia.
Rich in water for farmers and cities willing to poke wells down into the limestone, the resulting aquifer also benefited the Pecos River itself, as water seeped through cracks in the earth to add to the desert stream.
But the region’s developers soon found the bounty had limits. Too many holes pulling up water depleted the aquifer. In the beginning, artesian flows bubbling up under their own power were enough to irrigate fields, sometimes becoming a problem because the water was hard to shut off.
But as the growing Roswell-Artesia area farms and towns drew out more and more, farmers found that the water no longer flowed on its own and they needed to install pumps to water crops.
The pumping had a second effect. The springs and seeps that added to the flow in the Pecos diminished, reducing the flow of water to farmers downstream who had come to depend on the water.
“You can’t take water out of an aquifer without having some impact on the river,” hydrologist Michael Wallace explained recently to members of the Carlsbad Irrigation District board.
“This all started back in 1912,” said Dudley Jones, manager of the Carlsbad Irrigation District.
That’s when the state adopted what, on paper, looks like a simple solution to the problem of allocating water in times of shortage. The first people to put water to use have the highest priority water rights. In times of shortage, people who came later are, in theory, supposed to cut back their use of water.
“Priority of appropriation,” the state’s 1912 constitution states flatly, “shall give the better right.”
In practice, however, “priority enforcement” in New Mexico — shutting off newcomers so established users can get their water — is almost nonexistent.
Across much of New Mexico, the state has not taken the next step, a court-based process that determines when each user began taking water, and how much. That is needed to draw up the water rights priority list. But the legal complexities involved have bogged the process down in the river basins where it has been attempted, taking decades to untangle the question of who is entitled to how much water. As a result, the issue remains unresolved in most of the state’s river basins. And that means when drought happens, the state lacks the key tool needed to enforce the law.
Groundwater adds a layer of complication. As is the case in the Roswell-Artesia area, most groundwater pumping, used widely by cities but also for some farming, began in New Mexico later than river water irrigation. Carlsbad-area farmers, for example, had their ditches in place to spread Pecos River water across their fields before the Roswell-Artesia farmers began drilling their artesian wells.
As a result, the river water users, primarily farmers, and especially Native American farmers, have senior water rights in much of the state. In a drought, the groundwater pumping should in theory have a lower legal priority.
But even if the state had finished the legal work of establishing water rights priority lists, as a practical matter, cutting off lower priority groundwater pumping may not help in dealing with short-term droughts.
The lag between the time groundwater is pumped and the time the effects are felt in a river complicates water management in times of drought, said John Hernandez, a retired professor of engineering at New Mexico State University. It means that, in a drought year, a water rights priority call that leads to shutting off a groundwater pumper will not put water in the river in the same year.
It is such a well-known problem that water lawyers have a term for it — a “futile call.”
It is a common problem throughout the western United States, said University of New Mexico law professor Reed Benson. Our laws grew up in an era of river water use and have had to catch up to the realities of groundwater pumping technologies that came along later.
“Managing groundwater in connection with surface water is a challenge throughout the West,” he said.
‘Carrot and stick’
While the problem has come to a head this year in the Pecos River basin, similar issues plague New Mexico’s largest river basin.
On the lower Rio Grande in southern New Mexico, Texas filed suit in January, charging that New Mexico has allowed excessive groundwater pumping in the Hatch and Mesilla valleys. Texas attorneys allege that is draining water from the Rio Grande before the river reaches the New Mexico-Texas border.
In the middle Rio Grande, the stretch of river between Cochiti Dam and Elephant Butte Reservoir, Jarratt has filed a lawsuit raising similar issues. The Valencia County dairy farmer, who grows alfalfa to feed her cattle, says her family’s water rights date to at least 1873 and possibly earlier.
She argues that groundwater pumping in the Albuquerque metro area, which under the law should have lower priority rights than her family’s agricultural water, has been allowed to continue in recent years while drought has forced the curtailment of irrigation water to her farm.
Verhines, who as state water engineer for the last two years inherited the responsibility for sorting out the problems caused by groundwater pumping, said in an interview that he believes he has the tools to do the job. In the absence of lengthy court action to determine priority rights, the New Mexico Legislature in 2003 gave the Office of the State Engineer the authority to carry out “Active Water Resource Management.”
Verhines describes it as a “carrot and stick” approach. The carrot is the opportunity for a river basin’s water users to work out a shortage sharing deal for themselves. For example, low-priority junior water users at risk of being cut off might choose to financially compensate the senior water users who are coming up short of water in a drought year.
The stick is a strict enforcement of water priorities by the state engineer. Verhines believes the 2003 statute gives him the authority to act based on the best currently available information, even if a full adjudication has not been carried out.
If the current drought has a benefit, it is that it is forcing New Mexico’s water management bureaucracy to confront the question of whether it will really enforce the doctrine of prior appropriation or not, said Steve Hernandez, a prominent Las Cruces water attorney who represents, among others, the Carlsbad Irrigation District.
In the meantime, people like Dudley Jones of the Carlsbad Irrigation District say failure to grapple with the problem is merely an expensive way of delaying the inevitable. “We just keep putting it off,” he said, “and generating more revenue for attorneys.”