Water Line (the agency newsletter)
Reclamation Signs Pecos Lease Agreement
In a groundbreaking agreement, the Interstate Stream Commission (ISC) is leasing water held in its Pecos Water Conservation Program to the U.S. Bureau of Reclamation to offset increased depletions on the Pecos River as a result of Reclamation's winter releases for the threatened Pecos bluntnosed shiner. Reclamation agrees to make its best efforts to find other New Mexico water rights to offset its depletions, leasing water from the ISC only as a last resort.
"This is a win-win agreement", State Engineer Tom Turney declared, "the species is protected, water-rights owners are compensated, state law is observed, and New Mexico's compact issues are addressed."
The lease was proposed by the ISC after Reclamation asked the Carlsbad Irrigation District (CID) board on October 13th to operate Sumner Dam to provide minimum flows of 35 cubic feet per second (cfs) at the Acme gage near Roswell. The minimum flows were intended to benefit the threatened Pecos bluntnose shiner. The CID board refused, and Reclamation said it would take over the operation of Sumner Dam, which it owns, in order to release water to maintain the minimum flow target.
Consequences for New Mexico
Reclamation projects that maintaining a minimum flow of 35 cfs at Acme will cause approximately 2,000 acre-feet of new water depletions on the Pecos between November 1998 and February 1999. Annually, the new water depletions due to the 35-cfs minimum flow would be in the range of 5,000 to 13,000 acre-feet/year, depending on how certain the minimum-flow guarantee is and on hydrologic conditions.
But New Mexico cannot afford any new depletions on the Pecos. After ten years of litigation in Texas v. New Mexico, the Supreme Court's 1987 decree requires that New Mexico deliver water to Texas as required by the Pecos River Compact; New Mexico is never again to accumulate any water-delivery deficit.
Historical underdeliveries to Texas average 10,000 acre-feet/year. New Mexico paid Texas $14 million dollars in compensation for pre-1987 underdeliveries of water on the Pecos; after 1987, no deficit may accumulate, and a Pecos River Master appointed by the Supreme Court oversees New Mexico's compliance. The N.M. Legislature directed and funded the ISC to purchase and lease water rights to increase stateline flows and avoid future under-deliveries. This lease/purchase program has delivered about 10,000 acre-feet of additional water per year, on average, across the Texas state line. About $10 million has been spent to purchase water rights and put them in a conservation program, and about $11 million on annual water leases.
New Mexico has complied with the Supreme Court order to date, but with a very thin margin. The new depletions caused by Reclamation's minimum flow policy could easily wipe that margin out.
New Mexico's Response
Reclamation's announcement presented a direct threat to the Interstate Stream Commission's three goals for endangered-species policies requiring minimum flows, which are:
1) Avoid wet water depletions without offsetting water rights or compensation;
2) Require federal government operations that provide water for endangered species purposes to be in full compliance with state law and water resources administration; and
3) Require no impact on interstate compact deliveries.
To implement the ISC's goals of staying within the framework of state law and of requiring offset or compensation for any new depletions, the Commission offered–indeed insisted–that Reclamation lease ISC's water rights. A lease was executed on November 13, 1998, before Reclamation began low-flow operations on November 18.
The lease requires that Reclamation make its best efforts to offset its new depletions with other valid New Mexico water rights. For each acre-foot of additional depletion that is not otherwise offset, Reclamation will compensate the State of New Mexico at the rate of $106.
Thus, the lease satisfies the first two of ISC's three goals, and requires Reclamation's best efforts to provide full wet water offset, which would satisfy the third. This is why State Engineer Turney calls it a "win-win agreement." However, the November 13th lease only covers the period of winter minimum flow operations from November 1998 through February 1999.
An ISC resolution passed December 15, 1998 asks ISC staff to work with responsible federal agencies to seek a longer-term solution. ISC also asked the federal agencies to "carefully determine the requirements of the bluntnose shiner for minimum flows and weigh those requirements and any uncertainty in the justifying data against the increased water depletions and the associated damages and costs to New Mexico and its water users, specifically including the damages associated with reduced water deliveries to the State of Texas under the Pecos River Compact and the associated U.S. Supreme Court amended decree."
Stay tuned for the next episode, coming in March 1999.
Next article: ISC Funds Seven Regional Water Planning Proposals.