Special Report by Elephant Butte Irrigation District

The EBID Board of Directors received a vital litigation update regarding the Special Master’s report entered on July1 in the case of Texas vs. New Mexico. The Special Master was selected by the United States Supreme Court to make recommended decisions to them on the lawsuit involving the Rio Grande Project. Attorney Steve Hernandez, western water law specialist and counsel for Elephant Butte Irrigation District, summarizes the report, “The Master ruled on four motions: he denied the motion by the state of NM to dismiss the case and the case will proceed forward. In his opinion the Special Master notes that he assumes that Texas can prove their case that Rio Grande Project water, which he has also called Texas Compact Water, was intercepted and taken by non-project users and not delivered to El Paso County Water Improvement District (EP1). Texas will proceed forward to prove the amount of water taken and the damages the state of NM should pay. The second motion he ruled upon was the United States’ motion to be an intervener into the case and also present a case against NM officials for not protecting the Project Supply. This was granted and he felt so strong about their claim that he stated that even if the United States Supreme Court overturned his recommendations, then the United States case should proceed forward. In deciding the third and fourth motions, the Special Master denied both EBID and EP1 the right to intervene in the case as a party. However, he made it very clear in his report that he encouraged and would welcome both entities as an Amicus (friend of the court) to advise the Special Master as the case proceeds forward.”

Gary Esslinger, longtime manager of Elephant Butte Irrigation District, says, “The fact that this has been a federal project in operation for over 100 years opens up opportunities for our district to continue to improve water deliveries to our members. Over those 100 years we’ve done a lot to assume many of the functions that the United States used to have here and run a more efficient system. We don’t see that changing, in fact, we think that this is an opportunity to even advance our position in being more independent and working with our members to be more efficient with Project water. The Special Master’s report solidifies this position. Recent litigation with the NM State Engineer objecting to a water conservation project in the Hatch area done in cooperation with EBID members will not encounter the same hurdles with this decision by the Special Master.”

While the report is not final until the Supreme Court affirms it, the Special Master is assuming they will and is proceeding forward with a scheduling conference on August 11 to map out how the parties are going to proceed to trial. Hernandez says, “We still have an opportunity within the next 30 days to bring forth further explanation to the Special Master of why EBID still should be granted Intervenor status and we will be pursuing that.”

In fact the Special Master has issued a case management order setting forth the new schedule:

1 ) He has invited corrections to facts or misstatements of law in his report to be submitted to him within 30 days. He will look at them and decide whether or not to change anything in his opinion. At that point he either accepts or not then sends his report on to the Supreme Court.

2 ) When the Supreme Court receives the ruling, they then ask for a period of time where the parties can file exceptions, which are appeals to the report. It then continues through the Court’s procedural process; they can choose to affirm the report as is and ignore the exceptions or ask the parties to come and argue their exceptions. In the interim, the Special Master is proceeding forward with this case and planning for the parties to go to trial.

3 ) EBID and EP1 can ask the Supreme Court to reconsider their status as Intervenors instead of Amicus, or friend of the court, who provides additional insight through participation in the case as it proceeds. EBID attorney Lee Peters sees this as an opportunity to make certain the Special Master understands the facts about how EBID moves Project supply through NM which consists of not only EBID member’s water, but that of EP1 and Mexico. This may solidify why the district should be an intervener in the case.

Esslinger says, “This ruling confirms what EBID has warned the water community could happen when the Attorney General of NM sued to overturn a 2008 Agreement with EP1 and the United States Bureau of Reclamation over the allocation and delivery of Project Supply. When Texas initiated this lawsuit, EBID aggressively started to look for a way for non-EBID members to obtain Project Supply to offset their taking of water from the Project through their well pumping.”

The district’s Depletion Reduction and Offset Program, or DROP, has been in development for over a year. Dr. Lisa Henne, water policy specialist and counsel for EBID explains, “The program is a tool for managing groundwater use in the Lower Rio Grande. It provides municipal and industrial (M & I) groundwater users a way to offset their groundwater use by entering into a forbearance agreement. An EBID member agrees to forbear his water use for a set period of time to allow that groundwater to be used by someone else. The program is designed to be completely voluntary with the overall goal of reducing groundwater pumping. The bottom line is that somebody has to pump less groundwater.”

The DROP program proposal is currently in the hands of the Bureau of Reclamation. The BOR has collected the parameters of the policy from EBID and is in the process of working with their regional office to justify the need for and obtain authority to begin negotiating a new contract. The EBID proposal would still have the objective of keeping agriculture strong in southern NM but allow EBID members to also have an option to forbear their water for periods of time. It is not a traditional “buy and dry” concept, but would allow the rotation of land to be in the program instead of taking it completely out of agriculture. That contract is necessary for any use of project water outside of agriculture. Dr. Henne says, “The project is authorized for agricultural water use and you can’t change that use without the BOR implementing a conversion contract. It’s not as simple as saying “Oh, you can have it.”

Reviewing the history of the EBID project, Esslinger says the district has come a long way, “When you look at what we’ve accomplished after paying off the United States for the construction of the Project to today, it’s impressive. We’ve entered into contracts to take over operation and maintenance of all the canals, laterals and drains. Then in 1987, again by contract, we took over the operation and maintenance of all the diversion dams. In 1996 we went to Congress and they authorized the United States to deed to us all the distribution and drainage works in NM. We actually run the river operations in NM under the 2008 Operating Agreement. All of these things from 1980, 1987, 1996, 2008 and even the recent DROP program have set the stage for EBID to be in a position to protect EBID member Project Supply. This is the exact reason EBID feels it needs to still play a very active role in the litigation as it proceeds forward. No other federal agency or state can make sure EP1 gets their water when they order it.

The recent stream adjudication case is also impacted by this decision, explains Hernandez as the Special Master’s ruling indicates that Project Supply is also Texas Compact Water including what EBID delivers in NM and therefore is protected by the Rio Grande Compact and federal law. He says, “The Special Master has ruled that the priority date of the EBID Project supply in NM is superior to any other use in the Lower Rio Grande Adjudication. The issue of the priority date has been the subject of a two week trial in the stream adjudication litigation. Now the Special Master for the United States Supreme Court has inserted his view that the Project Supply is senior, and that includes the water EBID delivers to its members. It will be interesting to see what the United States is going to file in the state stream adjudication now that this decision has been rendered. ”

Return flows, that EBID manages in the drains throughout the district, is another issue affected in the stream adjudication. “The Special Master ruled that return flows and seepage are a part of the Project Supply and that is to be determined under federal law,” says Hernandez, “This was the position taken by EBID in the stream adjudication, but the adjudication court did not agree and ruled that return flows would be determined in an administrative hearing by the NM State Engineer. The report has a lot of impact on the current stream adjudication and everybody is evaluating what will happen in the future with this. Everyone is looking to the United Stated to start the conversation about what we are going to do in the stream adjudication.” The decision is good news in many ways for EBID members, says Hernandez, “The Special Master was clear in his ruling that the surface water that EBID delivers to its members and return flows must be protected by the NM State Engineer from non-EBID member pumping. The 2008 Operating Agreement allowed EBID members to pump groundwater and coupled with the Special Masters decision has made those rights senior to all other claims in the Lower Rio Grande Adjudication.

Esslinger says, “In the 38 years that I’ve been here with EBID there have been monumental changes that just haven’t happened in other parts of the nation. We were the first to pay off the United States construction obligation and receive title back to the drainage and distribution system by Congressional Act. Nobody else can say that. With this ruling by the Special Master regarding the seniority and protection of what EBID manages and delivers to its members and the protection for EBID member groundwater pumping under the 2008 Operating Agreement, EBID is in a strong position to keep the water flowing to its members.”

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