Steve Hernandez, Water Law Specialist and Legal Counsel for EBID

The Bureau of Reclamation’s Record of Decision January 5th is the end of a long road to have recognized the historic Operating Agreement Settlement entered into by El Paso County Water Improvement District No. 1 (EP#1), Elephant Butte Irrigation District (EBID) and Reclamation back in 2008. The Operating Agreement was developed after years of litigation among the parties to determine how to equitably allocate the Rio Grande Project water supply between the two irrigation districts. Originally the Operating Agreement had been the subject of an Environmental Analysis which allowed it to proceed. Four years after its implementation, then Attorney General King brought suit against the two districts and Reclamation to overturn the agreement partially on the basis that the NEPA process was deficient.

Today’s announcement on the signing of the Record of Decision should put to rest most of the objections made in that litigation. The Operating Agreement has led to more efficient delivery of Project water to the two irrigation districts and allowed for conservation of water through carry over storage. The Agreement has also been one of the key provisions involved in the United States Supreme Court litigation in Texas v. NM. In its original complaint Texas alluded to the action by NM in trying to overturn the Operating Agreement as one of the reasons for filing the action. The Agreement ensures that Project supply which is bound for Texas makes it through NM under the watchful eye of EBID staff. EBID has been able to make sure the Texas irrigation district has received its supply when ordered.

With this piece of the puzzle in place, EBID will proceed with its new Depletion Reduction Offset Policy (DROP) program to address municipal and industrial (M&I) depletions on Project supply in NM. The District will utilize the Record of Decision to start the environmental review of that program. DROP will attempt to make available to municipalities and water associations a mechanism to offset any depletions their groundwater pumping may have on the surface water of the Project. This is a big step forward in solving one of the region’s water supply issues.

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