Lower Rio Grande Settlement Framework John W. Utton Utton & - PowerPoint PPT Presentation

Lower Rio Grande Settlement Framework John W. Utton Utton & Kery, P.A. Santa Fe, New Mexico October 18, 2018

History of LRG Water Appropriation and Administration  Rio Grande Project Notices – 1906/08  Elephant Butte Dam - 1916  Rio Grande Compact - 1938  Major Development of Wells – 1938-80  Declaration LRG Underground Basin - 1980

 Adjudication 1986 – present  Stream System Issue 104 o Project water does not include groundwater o Priority date 1903  Operating Agreement 2008  AG Suit 2011  Texas v. New Mexico – 2013  Drought 2011-2014

Texas v. New Mexico (2013) Texas Complaint alleges: “ The Rio Grande Compact is predicated on the understanding that delivery of water at the New Mexico–Texas state line would not be subject to additional depletions beyond those that were occurring at the time the Rio Grande Compact was executed .”

“ New Mexico, through the actions of its officers, agents and political subdivisions, has increasingly allowed the diversion of surface water, and has allowed and authorized the extraction of water from beneath the ground, downstream of Elephant Butte Dam, by individuals or entities within New Mexico for use within New Mexico .” Texas v. New Mexico and Colorado, No. 141 Original (U.S. Supreme Ct.), filed Jan. 8, 2013 at para. 18

US Complaint in Intervention “ New Mexico has allowed the diversion of surface water and the pumping of groundwater that is hydrologically connected to the Rio Grande downstream of Elephant Butte Reservoir by water users who either do not have contracts with the Secretary of Interior or are using water in excess of contractual amounts .” U.S. Motion for Leave to file Complaint in Intervention, filed Feb. 27, 2014 at para 13.

New Mexico’s Answers & Counterclaims ( 2018 )  No damages – all Project deliveries made  Texas also allowed drilling of wells  The US encouraged development of groundwater  Texas and the US waited too long  2008 Operating Agreement has over- allocated water to Texas  Failure by US to maintain river channel

Lower Rio Grande Groundwater Diversions 2010-2017 (acre-feet)

Depletion effects of groundwater pumping on stream flow

LRG Administrative Challenges Strict Priority Enforcement presents many challenges  Could shut-off 1960 or earlier priority rights  Shut off junior groundwater use in EBID  Shut off 100% other junior users (e.g. domestic wells, municipal & commercial, irrigation)  Continued litigation

Recent Alternative Administration & Management Responses  AWRM Regulations  EBID DROP Program - 2015  Settlement Framework – 2016 LRGWU: City of Las Cruces, NMSU, PNM, Pecan Growers, Crop Farmers, Camino Real Regional Utility Authority

2016 Settlement Framework  LRGWU Support 2008 Operating Agreement with operational adjustments, if found to be necessary  Work on groundwater management  Senior water right owners will not seek priority enforcement against one another

Implementation  EBID becomes active partner  Close collaboration with State (AG & OSE  Formation of Tech Committee  Confidentiality Order and Stay in LRG Adjudication – Supported by U.S., EP No.1 and City of El Paso  Written Agreement in Progress

Going Forward  Complete NM portion of Settlement Agreement  State, EBID & LRG water users  Work with US and Texas parties to finalize Settlement  Groundwater Management may need governmental structure approved by the Legislature  Implementation of settlement will likely require State financial support