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Bureau of Reclamation Ruling Pits Farmers Against Fish, River, and Environmentalists

By Dennis Domrzalski and Paul Krza

JULY 31, 2000:  There are places that sometimes seem cursed by too much water. In 1993, two months of heavy rain swelled the Mississippi River to record levels. Parts of 10 states were flooded, 70,000 people were left homeless and more than $12 billion in property damage was sustained.

But in New Mexico and the desert Southwest, two months of steady rain is unheard of. Water is scarce. The Rio Grande, which winds for more than 400 miles through New Mexico, looks more like a muddy ditch than a mighty river. The river, which has been known to run dry on occasion, is the lifeline for a million people in the state.

The Rio Grande is relied upon to sustain big cities with water-sucking, high-tech computer microchip plants, an agricultural industry that depends on irrigation to survive, and now, endangered species such as the two-inch long Rio Grande silvery minnow and the willow flycatcher.

People who study the river say it is stretched beyond its means and that it can't do all that is being asked of it. Something will have to give. And when something has to give regarding water in the desert Southwest, you can expect a war.

New Mexico is now in the midst of a water war.

The war officially began two weeks ago on July 6, when the U.S. Bureau of Reclamation ordered the Middle Rio Grande Conservancy District (MRGCD) to release enough of the more than 350,000 acre-feet of water it controls from upstream reservoirs to keep the Rio Grande, wet enough to sustain the Rio Grande silvery minnow. An acre-foot of water is enough water to cover one acre of land with one foot of water. An acre-foot is approximately 326,000 gallons of water.

The BOR's order has pitted the Middle Rio Grande Valley's farmers, and possibly Albuquerque residents, against the federal government, environmentalists and the silvery minnow. It has also raised the issue of whether the federal government can commandeer water, which its critics say it is doing, and whether federal authority can supersede state water law. What is threatened by the BOR's action is the concept of individual property rights, BOR opponents say.

U.S. Sen. Pete Domenici has blasted the Bureau of Reclamation, saying it is trying to "nationalize" the MRGCD.

Skirmishes leading to this war have been going on for a while. One year ago, environmentalists filed a lawsuit in federal court seeking protection for the silvery minnow under the Endangered Species Act--protection in the way of a "wet" river, meaning a river that always has a constant flow. The only way the Rio Grande can be kept "wet" in times of drought is to release water from upstream reservoirs such as Cochiti lake.

But there's a hitch: The water in those reservoirs is already spoken for, that is, it is owned--by farmers in New Mexico and Texas, by the city of Albuquerque and by others.

Albuquerque owns the rights to 48,200 acre-feet of water from the San Juan/Chama Project, which diverts water from southwestern Colorado back under the Continental Divide and into the Rio Grande system. Plans call for the city to begin pumping that water out of the river by 2004 so it can be used by city residents for drinking. If the federal government can order the MRGCD to release water for the silvery minnow that the federal government doesn't own, it could mean an end to water contracts and state water law that have governed New Mexico water use since its territorial days.

Albuquerque Mayor Jim Baca had a blunt assessment of the consequences if Albuquerque were to lose its rights to the San Juan/Chama water.

"It would be a disaster," he said.

The MRGCD: A Major Water Player

The Middle Rio Grande Conservancy District was born out of the idea that agriculture was king and that lands could be reclaimed for farming. The District was formed in 1923 to drain the marshlands of the Middle Rio Grande Valley and turn the area into farms. The District operates 1,234 miles of drains and ditches that drain and irrigate about a mile-wide swath of land on either side of the Rio Grande in Sandoval, Bernalillo, Valencia and Socorro counties. The District controls about 350,000 acre-feet of water and serves 10,000 farmers who irrigate 70,000 acres of land. The District has permits to irrigate 123,000 acres.

The MRGCD was formed by the New Mexico Legislature and was and is paid for by landowners who live within the District's boundaries.

The Order, "Nationalization" and War

The July 6 letter from BOR Area Manager Michael Gabaldon stunned MRGCD officials, Middle Rio Grande farmers and much of New Mexico's Congressional delegation.

"As agreed in the 1951 repayment contract between the District and the Bureau of Reclamation, the District operates 'transferred works' as the United States' agent," Gabaldon wrote to MRGCD Chief Executive Officer Subhas Shah. "Given that the United States has title to the facilities, and that the District operates those facilities as the United States' agent, Reclamation must initiate additional consultation with the United States Fish and Wildlife Service under Section 7 of the Endangered Species Act.

"As an agent of the United States operating federal facilities, the District is required to operate all transferred works in compliance with Federal law including ESA. Under current river and climatic conditions. Reclamation has determined that 300 cfs [cubic feet per second] must bypass the San Acacia Diversion Dam in order to keep a continuous flow to the headwaters of Elephant Butte Reservoir.

"As the first course of action, Reclamation fully intends to pursue its ongoing cooperative, negotiated efforts, including water acquisition for meeting the needs of the Rio Grande silvery minnow and the Southwestern willow flycatcher. When these efforts are inadequate, however, the District as an agent must bypass the aforementioned flows, as needed to meet the requirements of the ESA."

Gabaldon was telling the MRGCD that it was now an agent of the federal government and that it had to release water that was owned by New Mexico farmers and others in order to help protect the silvery minnow.

The reaction to Gabaldon's letter was swift and harsh.

"The Bureau of Reclamation's decision to unilaterally federalize the Middle Rio Grande Conservancy District is simply an underhanded attempt to get its hands on New Mexico water that it cannot acquire under current law," said U.S. Rep. Joe Skeen, who represents the middle and southern portions of the state. "Moreover, the BOR is attempting to circumvent state water law."

Domenici was just as harsh.

"In that memo opinion he [Solicitor of the Department of the Interior] attempts, in one fell swoop, to overrule New Mexico water law, which are called the rights of prior appropriation, the cornerstone of water rights, and the right to use water," Domenici read into the Congressional Record on July 12.

"Solicitors at the Department of Interior or any other lawyers just do not walk around nationalizing assets. In some countries, dictators do, but certainly it is not the way we do things in America."

Conservancy District CEO Shah told Gabaldon he was simply wrong about the District being an "agent" of the federal government.

"There is no factual or legal basis for the position you are taking in the letter of July 6, 2000. The United States holds no title to the Conservancy District's works and neither the MRGCD nor its irrigators have been or ever will be federal agents."

Lawrence Troncosa, chairman of the Conservancy District's board of directors, said the BOR's action means that "farmers have been abandoned and that the Bureau of Reclamation no longer views irrigation as part of its mission."

Bureau of Reclamation's Position

How is it that the Bureau of Reclamation, a federal agency, came to maintain that the MRGCD, which was and is paid for and maintained by New Mexico property owners, is an agent of the federal government?

In the 1940s, the MRGCD's ditches were in disrepair. The District was short of money and couldn't afford to repair them itself. It asked the BOR for help. The result was a Sept. 24, 1951, contract between the Conservancy District and the BOR in which the federal government agreed to help the District repair its ditch and water storage facilities. It was a $15.7 million project, and the Conservancy District had 40 years to repay the federal government.

It is that contract that Gabaldon cited in his July 6 letter to the Conservancy District.

"The Department of the Interior Solicitor's Office recently completed its legal analysis of the United States' interest in the Middle Rio Grande Conservancy District-constructed irrigation works, and concluded the District transferred its interest in those works to the United States. As agreed in the 1951 repayment contract between the District and the Bureau of Reclamation, the District operates 'transferred works' as the United States' agent."

Like any legal document, the 18-page contract between the Conservancy District and the BOR is interpreted differently by different people. The BOR cited sections of the contract to the Alibi it said showed that the Conservancy District was taken over by the federal government.

"The contracting officer (United States) may issue a notice to the District requiring it to assume the operation and maintenance of transferred works. ... The District shall convey to the United States with title satisfactory to the Contracting Officer such of the District works now owned by the District, as shall be required to be conveyed to the United States as determined by the contracting officer."

Shah said the Conservancy District "did not transfer any deeds" to the federal government, only "assignment of easements to the Bureau of Reclamation so they could perform maintenance work for the District."

There is another big fault in the BOR's reasoning, Shah said. "We paid off the contract in December 1999. We do not owe them any money on the Rio Grande Project."

New Mexico Water Law

In the end, the battle over Rio Grande water and the silvery minnow could come down to New Mexico water law. Conservancy District supporters like Domenici and Skeen said that if the federal government can come in an overturn state water law, the system of allocating and distributing water in the West will be turned upside down. They also said that the BOR's action threatens individual water rights.

Baca said the battle over water "is going to be the defining issue for this region and the Rio Grande. It is going to be very contentious."

New Mexico water law can be complicated, but it is based on a simple doctrine: first come, first served.

"State water law is based on the doctrine of prior appropriation. If you were the first person on the river, and you diverted the water, you have a senior water right," explained Tom Bahr, former director of the New Mexico Water Resources Research Institute at New Mexico State University. "As others came along and diverted more water, they had junior water rights. In times of shortage, the most senior water-right holder would still have water, and the most junior person would have to give up their share."

State water law is also based on a doctrine of "beneficial use," Bahr said.

"The only way you can get water in New Mexico and Colorado is to put it to some kind of beneficial use," Bahr said. What are beneficial uses under state law? "Irrigation, domestic water supply. There is not one beneficial use that is of greater priority than another one. So if you have a fully appropriated river system like the Rio Grande is, if you are going to take water, you are going to have to buy it or have some kind of prior water right. The federal government does not beneficially use water [according to state law] and they don't have water rights. So if they want to get water for endangered species, they should have to purchase it under state law."

New Mexico law does not recognize keeping water in the river for environmental or endangered species purposes as a beneficial use, Baca said. He added that New Mexico is the only state in the West that does not recognize the idea of keeping the river wet as a beneficial use.

Silvery Minnow: Aquatic 'Canary' in Coal Mine

It's an emergency for an ecosystem on the brink. For environmental organizations seeking action to save the Rio Grande, the river is like a hospital patient on his or her deathbed. The river is dying, they say, and something needs to be done now. That's why, they say, a coalition of six environmental groups decided last year to file a lawsuit, demanding that federal agencies comply with the Endangered Species Act by ensuring suitable habitat for the silvery minnow.

"It's the first and hardiest of five native species that existed in the Rio Grande in our grandparents' time that don't exist today," said John Horning of the Forest Guardians, one of the groups that's involved in the river litigation. But, he added, "it's not just about the minnow--it's about everything and much more." For example, the bosque, or cottonwood forest along the river shores, is "only one-fifth to one-tenth of what it was," Horning said.

In the short term, the groups want enough water left in the river to keep it "wet" enough so the minnow can survive, particularly along the stretch from San Acacia south of Albuquerque to Elephant Butte Reservoir. In the longer term, they're calling for what they admit to be drastic action, including perhaps taking down the diversion dams at Isleta and San Acacia in favor of alternative diversion methods, and turning away from water-intensive crops like alfalfa and hay that account for as much as 95 percent of the farming in the Middle Rio Grande Valley.

Still, regardless of all the broader talk about ecosystems and the future of New Mexico's water supply, it's the minnow that has become the lightning rod and poster fish in the first summer of the new millennium. The headline shorthand for the river dispute has become "farmers vs. fish," pitting the multiple-generation farmers against a tiny creature most folks have never even seen. "If it goes, if there's no endangered species, there's no legal handhold to save the river," said Letty Belin of the Land of Water Fund of the Rockies, another litigator.

But Horning said the coalition didn't just jump into the lawsuit and use the fish as an excuse to go to court. The legal action came only after more than two years of what he termed some "very unfruitful" discussions with federal management agencies and the Conservancy District. "Now, with a water shortage looming and a drought persisting, we're faced with a short-term crisis to make sure the river doesn't dry up and more silvery minnows die, like the thousands that did in 1996, Horning said.

"We're a culture that responds to crisis--people don't feel they need to change unless they're forced to," he said. "The events like those this year may provide a catalyst to change." And Horning said the public in New Mexico backs action to resuscitate the Rio Grande. Various polls suggest "that's one of the highest priorities" of state residents and people who live along the river, particularly in Albuquerque, he added.

But Belin acknowledges some dismay in the polarization that has sent angry farmers to courtrooms and riled powerful politicians like Domenici. "It's distressing, the characterization of 'farmers vs. fish,' because farmers and fish can coexist," she said. "We all need to tighten our belts and make do with a little less," and that includes farmers and the cities along the river, Belin said.

Confrontation vs. Outreach

Not all environmentalists seeking action on the river back the legal, minnow-line-in-the-sand approach taken by the coalition. One group particularly, Rio Grande Restoration, founded in 1993 by river rafting guide Steve Harris, has been plodding a more deliberate, less confrontational community outreach approach.

"Our position has been to build relationships with the farmers to identify some common ground, common values and goals," said Deb Hibbard, the organization's on-the-ground listener in the Middle Rio Grande. "For most environmental groups, that's too slow a process," she acknowledged. "But it's the only way to find a real and meaningful solution, rather than coming in and imposing solutions from the outside." At a recent Conservancy District meeting, Hibbard took issue with board officials when the talk turned to the minnow lawsuit. "Don't paint us all with the same brush," she told the irrigators' group.

But Hibbard and the litigators are on the same page on the issue of why the farmers are so angry over how the river drama has escalated, raising doubt over whether they will have enough water for their crops this year. There's a disconnect between the farmers and the Conservancy District officials, she said. "The District is playing a victim role and the farmers are being manipulated," Hibbard said. Water shortages, for example, are not shared, with the farmers around San Acacia taking a hit. "That's not fair," she said.

Horning agrees, but takes an even stronger position, referring to "failed leadership on the part of the Conservancy District." And he includes federal agencies in his criticism. The Bureau of Reclamation, Corps of Engineers and Natural Resources Conservation Service "all could have been a little more forceful that something needed to be changed," he said. Conservation measures that the Conservancy District finally took about two weeks ago could have been implemented much earlier to stretch out water supplies in the face of obvious drought, he added.

Despite all the posturing, legal maneuvering and finger-pointing, Hibbard said her contacts with the farming community suggest that there's an acceptance of change in the air. "I'm hearing, 'I don't have anything against the fish. Let's just try to solve the problem,'" she said.

One approach might be to have the federal government buy water rights for the silvery minnow, as Skeen has proposed, Belin said, but that's not the only solution. The Conservancy District will have to become more efficient, perhaps with federal assistance to upgrade its "antiquated diversions and delivery systems," as a Green Paper prepared by the environmental-umbrella organization, the Alliance for Rio Grande Heritage, suggests. "We're on the brink of throwing away the river in our lifetime," Hibbard said. "It's going to take everybody to turn it around."

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