Central New Mexico’s Rio Grande water users are perched on the edge of a dangerous precipice because of our failure to deliver enough water to Elephant Butte Reservoir, according to a June 28, 2024, letter from the New Mexico Office of the State Engineer to the Middle Rio Grande Conservancy District.
We’re currently 121,500 feet behind in deliveries, up from basically zero six years ago. If our debt rises above 200,000 acre feet, according to the letter:
Under U.S. Supreme Court precedent, the use of water rights under state law is subordinate to a state’s obligations under an interstate compact. In Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U.S. 92, 108 (1938) the Supreme Court ruled that a State could curtail uses by senior water users when necessary to honor interstate obligations, because no user within a state is entitled to use any greater right than the state’s equitable share under the compact.
If New Mexico exceeds the 200,000 acre-foot threshold, Texas could file an original action against New Mexico seeking an injunction requiring New Mexico to take all actions necessary to deliver water to Texas until the debit falls below 200,000 acre-feet. While it would be impossible to know what relief a court would ultimately order, all diversions of native surface or groundwater within the middle Rio Grande, other than Pueblo water rights, could be vulnerable to a Compact call.
The only water rights that would not be subject to curtailment in the event of a Compact call would be Pueblo water rights, which are protected against impairment under Article XVI of the Compact, and San Juan-Chama Project (SJC) contract allocations, which are protected under Article X of the Compact. The amount of SJC water that MRGCD could use, however, would be limited to MRGCD’s SJC allocation in that year, any carryover SJC storage from previous allocations, or any leased water acquired from other SJC contractors.
The use of groundwater wells, including pre-basin wells and wells with pre-1907 rights, for irrigation, stock, municipal, and domestic use would all be vulnerable to a Compact call as well. This would have an impact on many farmers and ranchers, as well as many municipalities. While New Mexico would seek to protect the ability of municipal and domestic users to utilize water indoors, there could be extreme restrictions on other municipal and domestic uses of water, such as outdoor watering or washing cars.
To be clear, this is separate from the ongoing Texas v. New Mexico litigation on the Lower Rio Grande. This is the scary new Compact threat that Norm Gaume and others have been warning about as the Compact debt creeps inexorably higher.
The full letter is included at the tail end of Monday’s (7/8/2024) MRGCD board packet, and is on the agenda for a possible discussion at that meeting.
Well. We would need a priority call. There is nothing sacred about 1907. What is sacred is the date of first use which in many cases precedes 1907 by more than 100 years and possible 300 years. We have traced first use in one case back to 1823 and up north priorities go back to the 16th Century, This is not the doctrine of prior appropriations it is Spanish and Mexican water rights and property law. All water belonged to the Spanish and Mexican sovereigns. See Valmont Plantations case in Texas. The Spanish and Mexican systems were riparian rights and the right to water was given in writing or not at all. Remember that under the doctrine of succeeding sovereigns the succeeding conqueror retains the law of the former sovereign unless changed by federal statute, ordinance or substantive regulation. In our rush to develop we have overlooked and decided as a matter of convenience to ignore well worn law of our foreign laws that have their root in the early iron age.