“Grand Water Theft” SB 440 Still Alive – Feb. 21 Hearing after Opposition Raised by NM Attorney General & State Water Engineer
As originally written, Senate Bill 440, sponsored by Senator Joseph Cervantes from Las Cruces, would provide $120 million in public funds to the Interstate Stream Commission (ISC) for the purposes of correcting a “severe imbalance” in New Mexico water supply. In essence, it would direct ISC to purchase water rights from private entities in Northern New Mexico and convey that water through Elephant Butte Irrigation District to water users in Southern New Mexico. While the bill also purports to address other aspects of water consumption and use, overall it “provides mechanisms for the ISC to protect water rights, retire water rights, and conserve water to restore a balance among water users in New Mexico” to the detriment of water rights beneficiaries and users in Northern New Mexico.
By providing a massive and irresistible pool of money for water rights to be transferred from North to South, SB 440 is more or less “grand water theft” on a statewide scale, legitimized by greed. See more critical analysis below the 2/19 update and video, with details on the objections raised by the NM Attorney General and Water Engineer.
2/19 Update: The first committee hearing and vote on SB 440 has been delayed to Thursday, February 21st. Today the Senate Conservation Committee held a TWO HOUR LONG executive session during which the public was ejected from the hearing room while the New Mexico Attorney General’s Office and State Water Engineer briefed the committee on the bill’s potential consequences with respect to New Mexico’s pending water litigation with Texas and the United States. As tweeted by Gwyneth Doland, executive director of the New Mexico Foundation for Open Government, this type of executive session held during a committee hearing is very rare:
After the executive session, it was then announced by Senator Peter Wirth that the hearing on SB 440 would be delayed until Thursday, and in the meantime Senator Cervantes will modify his bill to address the concerns raised in secret. BOTTOM LINE: SB 440 is still alive and we’ll have to wait to see how it gets changed by its sponsor. Some other water bills will also be heard on Thursday by the Senate Conservation Committe. Here is video of Senator Wirth’s announcement following the 2-hour executive session:
Despite the secretive executive session meeting, the NM Attorney General’s concerns are publicly known because they were revealed at length in the Fiscal Impact Report (PDF link) on SB 440. In that publicly available FIR, the Attorney General’s Office reported the following:
SB440 purports to make legislative findings of fact which the AGO reports are false and appear intended to contradict the State of New Mexico’s legal position and support New Mexico’s opponents, including the State of Texas, in two important lawsuits, State of New Mexico v. United States of America Bureau of Reclamation, in New Mexico federal district court and the petition of agencies of the State of Texas to the United States Supreme Court requesting permission to sue the State of New Mexico in an original action before that court. For example:
1. The bill purports to find that a severe imbalance exists between New Mexico’s water right holders and New Mexico’s obligations under the Rio Grande Compact, thus implying that the Compact is being violated by New Mexico. This is untrue and mimics an unsubstantiated allegation made by Texas water agencies. In fact, New Mexico is in compliance with the Rio Grande Compact. Any “imbalance” on the Rio Grande is directly caused by the 2008 Operating Agreement entered into by the Bureau of Reclamation, EBID and the El Paso Water Improvement District#1, which illegally allocates about 170,000 acre feet of water in full supply years to Texas water users that rightfully and lawfully belongs to New Mexico water users.
2. The bill further purports to find that this “imbalance” is threatening the economic well-being of the state. In fact it is the illegal 2008 Operating Agreement that threatens the economic well-being of the state and is causing significant economic losses for the residents of the basin. The purported “imbalance” is not caused by New Mexico’s farmers as the bill claims, and it is for precisely this reason that the New Mexico attorney general has sued the United States in federal district court.
3. The bill asserts, without any supporting citation, that the state engineer has concluded that priority administration is only a last resort. If any such statements were ever made, they were likely made by a former, not the present state engineer and thus would have also been made before the New Mexico Supreme Court unanimously held that the state engineer has broad powers to administer and manage water rights even before the completion of a court adjudication in Tri-State v. D’Antonio, 2012-NMSC-039.
4. The bill purports to find that “a mechanism needs to be in place to protect water rights, retire water rights and conserve water so that a balance will be restored between water uses statewide and water supplied to the lower Rio Grande basin.” Although this finding is a bit muddled, it appears to falsely claim that New Mexico either is or soon will be violating the Rio Grande Compact, and that this violation is caused by the water users above the Elephant Butte Reservoir. This is demonstrably false and goes beyond even the over-reaching claims of the Texas agencies. Moreover, this finding seeks to limit the state engineer’s broad authority to find solutions to water resource problems and removes any ability for the state engineer to take benefit of his expertise in hydrology engineering to find the most beneficial outcome in water matters for all affected New Mexicans.
5. Section B of SB440 directs the ISC to enter into contracts with the board of the EBID to cure or prevent New Mexico’s failure to comply with its compact obligations which was falsely alleged above. Moreover, it purports to give to the EBID authority and money to resolve a problem which it earlier alleged is due to water users upstream from Elephant Butte Reservoir. Thus, in effect, it appears to give the EBID, in the lower Rio Grande authority to cure a problem which it claims is caused by the middle and upper Rio Grande.
6. Section C directs the ISC to make its decisions regarding expenditure of funds in consultation with EBID and Lower Rio Grande water users and limits the ways funds may be expended to projects that appear to mainly benefit water users in the lower Rio Grande, although the bill earlier claims that the economic harm is to the entire state.
7. Section D directs the ISC to sell back to the private sector any water rights it purchases in excess of those permanently needed for “compliance with priority administration, senior water rights and New Mexico’s obligations under the Rio Grande Compact.” Again, this falsely assumes that New Mexico is not meeting its obligations under the Rio Grande Compact. Further, since the bill specifically states that it is intended as an alternative mechanism to avoid priority administration, it is unclear how that could comport with “compliance of priority administration.”
In addition, the Office of the State Water Engineer echoes these objections to SB 440 in its own testimony, as detailed in the same Fiscal Impact Report on SB 440 (PDF link). A few snippets:
Regarding the drought, this bill fails to recognize the fact that drought has been plaguing the entire Rio Grande basin, including the lower Rio Grande basin, since 1999, and is a major reason for the currently insufficient water supply in the lower Rio Grande basin. Also, in 2008, EBID entered into the Operating Agreement, together with the US and El Paso Water Improvement District Number 1 (EP1), a major west Texas irrigation district, which had the effect of reallocating to Texas a portion of New Mexico’s LRG water supply that was originally allocated to New Mexico water users. New Mexico is not a party to the 2008 Operating Agreement.
Moreover, Section 1-A contains inaccurate and misleading language, suggesting that New Mexico is not in compliance with its obligations under the Rio Grande Compact. Unlike other interstate stream compacts with which New Mexico has failed to comply in the past (e.g. the Pecos River Compact; see the 1988 U.S. Supreme Court decree) New Mexico is in full compliance with all of the provisions of the Rio Grande Compact…
Moreover, the state’s use of public funds to acquire water rights from private parties without obtaining a discernible benefit in return, would likely violate the anti-donation clause of the New Mexico Constitution (Art. IX, Sec. 14)…
According to the OSE/ISC, if enacted, SB440 will not resolve current water supply issues in the LRG but would instead divert scarce agency resources from the ongoing adjudication of water rights in the LRG in state court (State of New Mexico ex rel Office of the State Engineer v. Elephant Butte Irrigation District, et al.), ongoing litigation in federal district court over the 2008 Operating Agreement (State of New Mexico v. Salazar ) and pending litigation filed by the state of Texas against New Mexico in the United States Supreme Court over alleged violations of the Rio Grande Compact.
Pending the changes to the bill that Senator Cervantes has promised, our own analysis is that SB 440 is one of the worst bills ever conceived for New Mexico water conservation and rational water policy in times of drought. It would spend $120 million — money that New Mexico doesn’t have available — to take water rights away from Northern New Mexico, yet still fail to solve Southern New Mexico’s water scarcity problem.