Drought and priority calls: Who will get the water?

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It was a day of numbers.  Years of drought, inches of rainfall deficit, inches of irrigation, feet per year of aquifer depletion, and dollars.  The Drought Subcommittee of the Water and Natural Resources Legislative Interim Committee met in Clovis last week.   Water experts gave presentations and state legislators asked questions generating hours of discussion.  And at the end of the day, we were left with more questions.  How long with this drought last?  Have we hit the bottom yet?  Will the state implement prior appropriation and curtail junior water rights such that seniors are allocated the limited water that is available?  How long will aquifers hold out?


Dr. Sam Fernald put the current drought in a historical perspective.  "You would have to go back 2000 years to find a wet period comparable to the 1980s and 1990s."   So what most of us regarded as normal was really a very wet period.  The current drought seems to be comparable to similar droughts that occurred in the early 1900s and the 1950s according to Chuck Jones of the National Weather Service but committee members pointed out New Mexico now has 2 million people making the current drought worse in relative terms.  Jones also mentioned that the last 36 months are the driest on record although he noted that forecasts showed a slight improvement in the next three months.    


Fernald showed a dramatic slide of tree ring data and emphasized that the region has experienced long term drought in the distant past.  In the 400s, it appears that there was a 150 year drought while in the 1600s there was a 75 year drought.  He noted the possibility that the current drought could be of this depth and duration.  Senator Wirth said that as policymakers, legislators need to understand the length of drought.  "We have had ten years of drought, three of them severe.  Are we in a 75 year drought?  We just don't know." 


Representative Jeff Steinborn commented on the prior appropriation system expressing concern that it appears to result in "winners" and "losers" because juniors can be curtailed so that seniors are allocated water in times of shortage.  Junior users tend to be entities or individuals that rely on groundwater pumping for their water, including cities, community water systems, and some farmers.  Senior users are generally Pueblos and tribes, acequias, and irrigation districts. 


State Engineer Scott Verhines gave a lengthy presentation about Active Water Resource Management (AWRM) which he contends gives him the tools to use two approaches to administering water in New Mexico.  He said that New Mexico has passed the time of water appropriation, when water rights or permits were granted by the state.  Essentially, all of New Mexico's water is appropriated to some use.  Verhines went on to say that New Mexico is in an era of administration in which water right allocation by the state which will involve measurement using meters and allocation of water either by "priority administration" or "alternative administration."


The focus of his presentation was on these two approaches: 


1) Strict priority enforcement.  According to Verhines, his office has the policies and procedures in place (AWRM) to implement priority administration.  His office would use a hierarchy of sources of information about priority dates starting with adjudication decrees.  In the absence of such decrees, he can use any information available to him to determine priority dates.  With that information, he can determine the cut-off point for curtailment of junior water rights. 


2) Alternative administration.  Verhines described Alternative Administration as way to get senior and junior water users to agree to an allocation scheme that would avoid a priority call.  He noted that very often water right owners have a strong inclination to reach agreement because priority calls can cut off supplies to cities and industries resulting in major impacts to the local economy. 


Although not mentioned directly, the implication was that priority calls could cut off access for basic household and sanitation needs.  Verhines believes it has been this factor that keeps parties at the table to try to work out sharing agreements.  More than one legislator pointed out that this would seem to require consensus and that it would take virtually only one senior water right owner to disagree with the scheme and push for a priority call.  Verhines went on to explain that AWRM has a provision for allowing expedited markets or short term leases between seniors and juniors so that scarce water supplies can be re-allocated to avoid a priority call.  It was not clear if this mechanism has ever been used. 


Others asked questions about how agreements could be reached and how the State Engineer influences the process.  Wirth asked if the State Engineer was willing to use "the hammer" (i.e. priority administration) if necessary.  He went on to say that the rules seem clear and that if juniors want to avoid being curtailed, they would need to prevent seniors from making a call, including paying for water (i.e. leasing).  This line of discussion was implying that unless the State Engineer is prepared and has the will to use "the hammer" then there does not appear to be an incentive for juniors to take measures to avoid a call.  Furthermore, the only leverage senior water users have is prior appropriation, but only if the state could actually implement it. 


Rep. Larranaga asked about the "futile call doctrine" and how this affects the state's decision to do priority administration.  Verhines explained that modeling on the Lower Pecos River seemed to indicate the curtailing junior users from Pecos Valley Artesian Conservancy District and others north of Carlsbad who pump groundwater would have a delayed effect on the Pecos River.  According to the models, it would take five to seven years for water to return to river flows that could be then delivered to senior irrigators in the Carlsbad Irrigation District.   Some legislators commented along the lines that waiting five years for water seemed better than going seventy five years with no water.  Larranaga asked if a "futile call" is defined in New Mexico law and counsel for Verhines responded that New Mexico does not provide a definition although other states such as Colorado have defined the term.


Senator Cervantes, speaking after several committee members had their turn to ask questions, provided some context for Active Water Resource Management (AWRM) noting that the regulations were the result of legislation passed by the legislature in 2003.  He went on to explain that the AWRM regulations enacted by the OSE in 2004 then became the subject of 10 years of litigation that finally resulted in a Supreme Court decision (Tri State v. D'Antonio) that affirmed the State Engineer's position that the 2003 law gave his office discretion to implement priority administration using the best information available (not necessarily with priority dates and acreages determined by the courts and spelled out in an adjudication decree).  Cervantes' opinion was that the 2003 law was not clearly written and it resulted in years of litigation and broad new policy that still is not well understood.


During another part of the meeting, Cervantes gave more context about legislative decisions related to drought before AWRM was in place.  He told the story about the Lower Pecos River settlement in which the State Legislature spent $100 million to purchase and retire 12,000 acres of farmland on the Lower Pecos to avert a priority call.  He pointed out the policy implications of drought and questioned whether this was good policy for New Mexico and whether the state could afford to bail out other regions of the state if the drought continues or worsens.  Commenting on whether this could apply elsewhere in the state, he said that a similar bailout on the Lower Rio Grande would probably cost more than quadruple what the Lower Pecos settlement cost the state.  He asked, "Can New Mexico afford $500 million to do the same on the Lower Rio Grande? …probably not." 


In New Mexico, we face hard decisions about water.  In times of shortage, which appear to be nearly every year, will the State Engineer enforce priority calls?  Will communities come up with strategies and agreements to avert priority calls?  Will the state step in again with money as it did on the Lower Pecos to retire agricultural land to accommodate junior uses?  How long will the water hold out?  How soon do we need to make these hard decisions?  The legislative hearing, while being very informative, left us with many questions about the future of water in New Mexico.   Other topics on the Water and Natural Resources Legislative Interim Committee agenda were Forest Watershed and Fire Management, Update on the Pecos River Priority Call, the Eastern NM Rural Water Supply Project, and Right to Farm legislation.  Upcoming blog posts will cover these topics.  The next meeting of the WNRC and Drought Subcommittee is scheduled in Farmington on August 27-29.  Check the NM State Legislature website for more information. 


Next blog post:  Priority call hot spots in New Mexico