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Sunbelt water war: the El Paso-New Mexico water conflict.

Just as the lack of water limits the natural vegetation, the shortage of water in the arid U.S. West will increasingly become a major check on the region's economic growth. Because of this, many Southwestern cities are engaged in a life and death struggle for control and use of the region's meager water supplies. For over eleven years El Paso, Texas, confronted the State of New Mexico in one of the country's bitterest water conflicts. Faced with a legal confrontation that probably would have gone all the way to the Supreme Court or required federal legislative action,(1) El Paso eventually opted for a compromise solution which grants El Paso a reprieve from an immediate water shortage but does not resolve the issues that precipitated the conflict.

This water conflict is rooted in the aridity of the Rio Grande Valley and a web of legislation that forces more recent water consumers to compete with entrenched forces for control of water resources. Federal reclamation legislation passed before the post-WW II Sunbelt population boom has been interpreted in such a way as to severely limit El Paso's use of the region's surface water that was originally allocated for agricultural use.(2) Through the 1970s, most of El Paso's water needs were met by local ground water, but decreasing quality and quantity of this resource forced the city to pursue water beyond its jurisdiction.(3) The El Paso case illustrates the complexity of such issues and the high stakes involved. This paper discusses El Paso's population growth and the resulting overuse of its local ground water supplies. It demonstrates how legal barriers and physical factors made ground water in New Mexico the most attractive new water source. This remedy placed El Paso in direct conflict with New Mexico water law which is intentionally constructed to protect the state's water resources. We will examine the compromise reached between El Paso and New Mexico, as well as its implementation since 1991. We will compare this conflict with other water crises and conflicts in the arid Southwest and compare the methods used to extend and secure El Paso's water supply with those employed elsewhere. Lastly, we will show how this compromise only postpones, but does not resolve the inherent competition among the water consumers in the region.

Initial phases of this research were funded by the New Mexico Water Resources Research Institute for which the authors prepared graphics and interpretation of the water conflict.(4) Subsequent research on this topic has been part of the authors' on-going research on regional water resources and their impacts on the economic and population growth of the region.(5)

REGIONAL CONTROLS ON WATER RESOURCES

The Southwest's dry climate, which makes the region attractive to corporate leaders, professionals, and retirees, also is the cause of its limited water supplies and the resulting intense competition for water resources. Low rainfall implies sunny blue skies, low humidity and pleasant summer evenings, but also means that very little useable water supply is produced in the region. In the El Paso region more than 90 percent of the precipitation evaporates before it can flow into rivers or infiltrate down to the water table.(6) If ten percent of the ten inches average annual precipitation which fall on the 247.9 square mile surface area of El Paso could be saved, it would amount to about 13,000 acre feet (AF) per year or enough water for a population slightly greater than 50,000, about one tenth of the city's present population of over 500,000. By 2030 El Paso's population is expected to exceed 1.2 million.(7) With an increasing population and limited water, El Paso, like virtually all other large Southwestern cities, has been forced to rely on a variety of water supplies.

Until quite recently, settlement and economic growth in the Southwest has been dependent upon diversion of exotic streams such as the Owens and San Joaquin Rivers in California, and the Colorado and Rio Grande in Arizona and New Mexico.(8) Most of this surface water was allocated for irrigation during the 1900-1940 period by irrigation projects authorized by the 1902 Newlands Act that established the U.S. Bureau of Reclamation. Most of the Upper Rio Grande's water, including that flowing past El Paso, was allocated to agriculture under the 1905 Rio Grande Compact.(9) More recently, the booming Southwest population, as well as agricultural expansion, has been dependent upon ground water use, often at a rate that is five or more times greater than the climate-determined recharge rate.(10) Furthermore, long established stream-based irrigation schemes have used supplemental ground water irrigation to guarantee maximum productivity which the highly irregular year-to-year flow of Western rivers, such as the Rio Grande, cannot provide.

Problems associated with massive over-reliance on ground water have spread like an epidemic across the West. As water tables decline, pumping costs increase to the point that the water withdrawn is no longer economical for agriculture. Because saline water is heavier than fresh water, declines in the water table are often associated with a decrease in water quality due to an increase in dissolved salts and lime in the water. In addition, if overdraft (the amount of excess water taken from an aquifer relative to the recharge rate) continues, pore spaces occupied by ground water collapse, leading to ground subsidence and contraction fissures.(11)

Water use and development in the southern New Mexico-El Paso region have followed this pattern. The critical legal instrument is the Rio Grande Compact of 1905, modified in 1938.(12) It allocates most of the river's flow to agricultural irrigation districts. This act created the 90,640 acre Elephant Butte Irrigation District (EBID) in southern New Mexico and the 69,010 acre El Paso County Water Improvement District (EPCWID). Together, these districts command virtually all of the Rio Grande's water after 60,000 AF/year are delivered to the Republic of Mexico at Ciudad Juarez.

In southern New Mexico, agriculture continues to be the major user and consumer of water. When discussing such water use, the quantities enumerated sometimes do not appear to correlate because not all water is "consumptive use" and consequently can be reused. Presently agriculture withdraws more than 400,000 AF and consumes 220,000 AF in Dona Ana County, New Mexico; all other uses consume less than 30,000 AF each year.(13) Rio Grande through the Elephant Butte Irrigation District supplies an average 280,000 AF/year. Virtually all urban and domestic water is supplied by wells. Ground water has also been used to supplement and expand irrigation agriculture and accounts for more than 70 percent of the 100,000 AF of ground water consumed each year.(14) This rate of ground water use represents less than 1 percent of the estimated 50 million-plus AF available in the Tularosa, Hueco and Mesilla Basins.(15) In spite of their rapid growth, Las Cruces and Dona Ana County will not need 50,000 AF/year for urban water uses until sometime after the year 2000.(16)

Water use in adjacent portions of west Texas has exceeded the local long term supply. Irrigated agriculture (approximately 200,000 AF/year) and the 1906 treaty with Mexico, that guarantees Mexico the first 60,000 AF/year from Elephant Butte Dam, commit virtually all of the Rio Grande's flow.(17) Urban water needs have been met by ground water contained in Texas portions of the Hueco Basin east of the Franklin Mountains and from Texas portions of the Mesilla Basin north and west of the pass at El Paso between the Franklin Mountains and the Sierra Juarez. Because of its present population of approximately 500,000, El Paso's water use has become a major component of the total regional water equation. As shown in Table 3, most of El Paso's municipal water supply comes from the Hueco Basin. Since 1985, treated sewage effluent has been injected into the Hueco Basin for subsequent withdrawal. Continued heavy reliance upon the Hueco Basin will lead to a gradual deterioration of water quality to the point that by 2025 the withdrawn water would need desalinization.(18)
Table 1. El Paso Population and Water Use(a)

                                              Water Use
Year                     Population           AF/Year

1940                      120,000             20,000
1970                      300,000             70,000
1980                      430,000            100,000
1990                      550,000            120,000
2000 (est.)               690,000            155,000
2030 (est.)             1,200,000            340,000/270,000(*)

AF = acre feet; * = 1993 estimate.

Note: a El Paso Water Utilities, Application report for new water
permit to divert from the Rio Grande in El Paso County, Texas,
(El Paso, TX: El Paso Water utilities 1993).
Table 2. 1980 Water Use in the El Paso Region, acre feet
(AF)/Year(a)

Region/Use             Rio Grande       Ground Water       Total

Southern NM

Agriculture             300,000            100,000         400,000
Urban                                       30,000          30,000
Other                                                       10,000

El Paso, TX

Agriculture             200,000             60,000         260,000
Urban                    20,000             90,000         110,000
Other                                                       15,000

Mexico                   60,000             30,000          90,000
                        580,000            310,000         915,000

Note: a L. Wilson, Water supply alternatives for El Paso, (Santa Fe,
NM: Lee Wilson and Associates, 1981).
Table 3. Water Supply, City of El Paso, 1986 and 1993(a)

                                                    AF/year

                             Source            1986          1993

Ground water             - Hueco Basin        70,000        69,000
                         - Mesilla Basin      20,000        13,000

Rio Grande                                    20,000        43,000
Sewage Water Recycling                        10,000          (*)

Total                                        120,000       135,000

* 10,000 AF included in Hueco Bolson supply for 1993;
AF = acre feet.

Note: a City of El Paso, Water Utilities Public Service Board,
El Paso Water Resources Management Plan, Phase 1 Completion Report,
(El Paso, TX: Boyle Engineering Corporation, 1994).


Since the 1960s, El Paso has worked to stretch and expand its water supply. Conservation measures have reduced per capita water use from 220 gallons per day (gpd) in 1970, to 195 gpd in 1980,(19) and to less than 180 gpd in 1992.(20) Continued efforts could realistically lower this rate to the 168 gpd achieved in Tucson, AZ.(21) Recycling of sewage effluent by either ground water injection or direct use could lead to reuse of about forty percent of total urban water consumption.(22) Both of these methods however can only slow the growth of water demand. Consequently, there remains the long term need to increase El Paso's total water supply.

EL PASO'S QUEST FOR NEW MEXICO WATER

El Paso's location severely complicates its future water options. Farmers using Rio Grande water have resisted El Paso's designs on their water rights; community leaders did not press this issue because of the economic benefits of agriculture and the aesthetics of an agricultural greenbelt surrounding much of the city. Available water supplies in Texas either require costly desalinization, are too limited, or are hundreds of miles away and therefore would incur considerable pumping costs. Abundant but costly to desalinize brackish to saline ground water is available in the Tularosa Basin north of the Hueco Basin in New Mexico. Immediately north and northwest of El Paso in adjacent portions of the Hueco and Mesilla basins in New Mexico are sizable and relatively inexpensive freshwater resources which have not yet been significantly exploited.
Table 4. El Paso water supply options in 1980(a)

Present Water Supply                             Cost/1000 Gallons

Rio Grande (limited to 20,000 AF/year)                  25c
Hueco Bolson, Texas                                     30c
Mesilla Bolson, Texas                                   30c

Future Supplies

Hueco Bolson, New Mexico                                70c
Mesilla Bolson, New Mexico                              70c
Recycled Sewage Water (reinjected)                      70c
Purchase Rio Grande Water in TX or NM                  130c
Trans-Pecos Basins in Texas                            150c
Desalinization                                         200c

Note: a L. Wilson, Water Supply Alternatives for El Paso (Santa Fe,
NM: Lee Wilson and Associates, 1981).


Accordingly, the Mesilla and Hueco basins emerged as the cheapest, most plentiful new water sources for El Paso. The Mesilla Basin contains an estimated 30 million AF;(23) the New Mexico portions of the Hueco contain an estimated 10 million AF. Well fields could be located on U.S. Bureau of Land Management land in New Mexico, obviating the need to purchase private water rights. The only costs would be for drilling wells, building pipelines and pumping water. For these obvious reasons, El Paso Water Utilities described the Mesilla and Hueco basin water as their "bridge to the future."(24) This view of the need for New Mexico water was dependent upon the assumption that significant amounts of the Rio Grande's water could not legally be used by El Paso, either by direct purchase of water rights or by trading for treated sewage effluent.

The financial stakes involved in the choice of water supply amounted to billions of dollars. Based upon the cost of the next cheapest water supplies, using the southern New Mexico water supplies would have saved El Paso between one and five billion dollars over 30 years.(25) The multiplier effects of that savings, as well as having a secure long term supply, would push ultimate savings to $10 billion or more. For New Mexico, if the 250,000 AF/year which would have gone to El Paso were used to increase irrigation agriculture, it would more than double the $80 million generated each year from irrigation agriculture in Dona Ana County.(26) Over 30 years this would amount to $3 billion, a value that brackets the $750 million to $7.5 billion value for this 7,500,000 AF of water at an estimated value of $100 to $1,000/AF. Even if the present population growth rate of four percent/year is maintained, Dona Ana County's urban population in 2020 will need 50,000 AF/year, an amount that could be provided regardless of the outcome of this case.

New Mexico has a long history of controlling its water resources. In 1907, even before statehood, the territorial legislature passed the Water Code which mandated that "the right to use of water" would be regulated by permit from the territorial engineer or by court decree.(27) In 1931 the ground water code, patterned after the 1907 surface water law, was enacted.(28) A critical component of the 1931 law was the establishment of declared ground water basins whose water was state property and the requirement that anyone wanting to use water from a declared ground water basin must apply to the State Engineer for a permit.(29) Presently, New Mexico's 31 declared ground water basins cover nearly 85,000 square miles, including the Hueco and Mesilla basins, or over 70 percent of the state's total of 121,000 square miles.(30) In 1953, New Mexico amended its 1931 ground water law to ban any export of water from a declared basin because such water belonged to the state and to do so would entail giving away state property.(31)

El Paso was forced to choose between challenging the 1953 New Mexico Water Embargo Act or seeking more expensive, less accessible water supplies. El Paso chose to fight. On September 5, 1980, El Paso filed suit in U.S. District Court on the basis that New Mexico's ground water law was in violation of the interstate commerce clause of the U.S. Constitution. Six days later, September 11, the New Mexico State Engineer Steve Reynolds declared the Lower Rio Grande Underground Water Basin to be under state jurisdiction. The next day El Paso filed applications for 266 wells and 246,000 AF/year in this legally defined basin which traditionally has been referred to as the Mesilla Basin. That same day, the New Mexico State Engineer established the Hueco Underground Water Basin. On September 18, El Paso filed for 60 wells and 50,000 AF/year in the Hueco Basin. Citing the 1953 Water Embargo Act, the New Mexico State Engineer denied the permit applications on April 21, 1981.(32)

After staying the case until the State Engineer's ruling, the suit challenging the Water Embargo Act was heard by the U.S. District Court in January 1982. However, the case was again put under a stay of proceedings pending the U.S. Supreme Court decision in Sporhase v. Nebraska.(33)

Nebraska had a water embargo law, and under the mandates of this act, prosecuted Jay Sporhase for irrigating 140 acres of beans and corn on the Colorado portion of his farm with ground water from a well 55 feet inside the Nebraska state line. On July 2, 1982 the U.S. Supreme Court ruled in Sporhase that ground water was an article of commerce and the Nebraska law imposed an unreasonable burden on interstate commerce. Consequently, the law was in violation of the Commerce Clause of the U.S. Constitution.(34)

El Paso refiled suit with the U.S. District Court, which ruled on January 17, 1983, that the 1953 New Mexico Water Act was unconstitutional on the basis of the Sporhase interpretation. Before El Paso's well permits could be reevaluated, the New Mexico legislature passed the 1983 Water Export Act. Two years later the New Mexico legislature modified this water law by adding a provision that required applicants for ground water to prove a demonstrated need for such water within a 40-year time frame.

Subsequent events in the El Paso case focused upon resolving the inherent conflict between the federal commerce power and New Mexico's police power, upon which the Water Export Act is based.(35) El Paso's claim to New Mexico ground water was based upon the concept of water as a commodity of interstate commerce. New Mexico's response was to assert its right to protect its water resources and, consequently, the public welfare of its citizens from out-of-state water users.

El Paso sought a legal opinion from the U.S. District Court on the constitutionality of the 1983 New Mexico law. In 1984 the court stated that the law was a legitimate exercise of New Mexico's police powers and did not violate the Commerce Clause.(36) Pursuant to this finding, El Paso applied to the New Mexico State Engineer for 60 wells and 50,000 AF/year from the Hueco Basin and 266 wells and 246,000 AF/year from the Mesilla Basin. The application for wells in the Hueco Basin was later decreased to 21 permits and 10,000 AF/year because the other well locations in that basin were within the limits of Fort Bliss Army Base. In accordance with the 1983 Water Export Act, the New Mexico State Engineer held hearings to evaluate the El Paso well applications. The hearings began on November 18, 1986, and concluded on December 7, 1987, after 58 days and over 13,000 pages of testimony. A coalition of New Mexico public and private sector organizations opposed El Paso. They included Elephant Butte Irrigation District, New Mexico State University, the City of Las Cruces, Dona Ana County, the City of Alamogordo, the State Land Office of New Mexico and Stahmann Farms, Inc., which operates the world's largest irrigated pecan orchard in southern New Mexico. This coalition argued that El Paso did not need New Mexico water within the 40-year period required by the 1985 law and that the use of 256,000 AF/year of New Mexico water would materially affect the public welfare of New Mexico citizens.

El Paso based its case upon the fact that its water use would not significantly affect the availability of ground water in New Mexico and that the economic growth produced by the use of New Mexico water would benefit the entire El Paso region, including adjacent portions of southern New Mexico. Indeed, they presented data that indicated that El Paso's use of Hueco and Mesilla basin water would benefit New Mexico more than any other likely use of that water by New Mexico entities. Furthermore, they argued that the three or more times higher priced Texas alternative water would produce an economic drag on the region that would have a direct negative impact on southern New Mexico.(37)

On December 23, 1987 Steve Reynolds, the New Mexico State Engineer, ruled against El Paso's applications on the basis that El Paso could not demonstrate a legitimate need for the water within 40 years. He stated that existing water supplies in Texas (Hueco Basin, Mesilla Basin and Rio Grande surface water) were sufficient to meet the city's needs for 40 years, at least until 2030. He also stated that the Texas portions of the Hueco Basin would be able to supply "acceptable" quality water and that the city would need only 163,000 AF/year in 2030 based upon an estimated population of 874,000.(38)

His decision was based upon lower population estimates and per capita water consumption than had been presented by El Paso, which had assumed a population of 1.15 million and a water need of 256,000 AF/year.(39) By rejecting the case on the failure to justify need within 40 years, Reynolds did not have to evaluate the applications on the basis of the more controversial aspects of the 1983 Water Export Act. Specifically, he did not determine if: (1) unappropriated water was available; (2) El Paso water use would impair existing ground water rights; and (3) El Paso water use would be detrimental to the public welfare of the citizens of New Mexico and contrary to water conservation in New Mexico.(40)

Not unexpectedly, El Paso appealed the decision. On January 12, 1988, it filed an appeal in U.S. District Court on the basis that the decision was in violation of Sporhase. On the next day, January 13, 1988, El Paso also filed an appeal in New Mexico District Court claiming that Reynolds' decision did not protect the public welfare of the citizens of New Mexico. The U.S. District court deferred its case to the New Mexico State Court System. In New Mexico District Court, Judge Manual Saucedo dismissed El Paso's appeal on the ground that the city failed to give proper notice of the appeal to 288 individual members of the Elephant Butte Irrigation District who had protested the El Paso well applications in 1985.

On April 15, 1989, El Paso filed an appeal of Judge Saucedo's decision with the New Mexico Court of Appeals. After hearing opposing arguments, the Court of Appeals directed the litigants to meet with a court appointed arbitrator, former New Mexico district judge George Perez of Bernalillo. During the ensuing months, Judge Perez conducted a number of meetings between the principals in the case, Elephant Butte Irrigation District, The Regents of New Mexico State University, and The City of El Paso. Initially, both sides were unwilling to compromise, but two pivotal events in April 1990 made negotiation possible. First, the U.S. Court of Appeals rejected El Paso's appeal of the U.S. District Court's order to pursue their remedy in New Mexico courts, which meant that El Paso would have had to go to the New Mexico Supreme Court before it could appeal in federal court.(41) Second, Steve Reynolds, New Mexico State Engineer and de facto "water czar," died, removing much of the intense personal competitiveness that had characterized the proceedings. Both sides negotiated in earnest and on March 6, 1991 a 15-item "Settlement Agreement" was signed, thereby ending the eleven year confrontation between El Paso and New Mexico. If El Paso had chosen to pursue its case, it probably would have gone all the way to the U.S. Supreme Court. The steps through the New Mexico and federal courts would have taken at least another four years, thereby making the case as lengthy as the fifteen years (1948-1963) that it took to adjudicate the allocation of the lower Colorado River's water between Arizona and California.

THE AGREEMENT AND ITS IMPLEMENTATION

The compromise agreement created a "Joint Settlement Commission" whose purpose it was to devise and implement means whereby El Paso could meet its water needs. The agreement through this commission forced El Paso to shift from a simple single solution to its water supply problem to a more complex, multifaceted program based upon buying small parcel Rio Grande water rights, drastic water conservation measures in El Paso, increased use of reclaimed sewage effluent, paying for upstream conservation, and building a lined canal for transporting Mexico's and Texas' share of the Rio Grande's water from Caballo Dam to El Paso without significant transmission losses.(42)

El Paso did not have to wait to implement a broad-based water conservation plan. On March 12, 1991, only 6 days after the settlement, the City Council adopted a strict water plan that had been proposed by the Water Utilities Board on November 28, 1990, which targeted a per capita water use of 160 gpd by the year 2000.(43) Public awareness and enforcement of this conservation program has brought per capita water consumption down to 171 gpd in 1991, to 172 in 1992, and 181 in 1993 and 1994. The higher water use in 1993 and 1994 can be attributed to the warmer than normal 1993 summer and record high temperatures during the summer of 1994.(44)

Since the 1960s, El Paso has used a provision in the Rio Grande Compact that allows purchase or lease of up to 10,000 acres of small project served parcels to incrementally purchase and lease water rights served by the El Paso County Water Improvement District (EPCWID).(45) Since the compromise, the city has pursued a more aggressive policy and to date has purchased water rights to 2149 acres and obtained leases to another 5881 acres. This has permitted an increase in the amount of water that El Paso directly withdraws from the Rio Grande from approximately 20,000 AF/year in 1986, to 31,000 in 1992, to 43,000 in 1993.(46) Employing this small parcel provision, the Public Service Board signed an agreement with EPCWID in April 1992 to directly purchase an additional 15,000 AF/year from the irrigation district.(47)

The 1991 "Settlement Agreement" specifically calls for the construction of "conveyance facilities" from Caballo Lake to El Paso and states that conserved water is the property of those responsible for its conservation. Water for El Paso and Mexico would be withdrawn at Percha Dam, two miles downstream from Caballo Dam, and transported to El Paso in a lined aqueduct. At present, several alternative versions of this project are being evaluated. These alternatives fall into two groups, those that have a separate canal system for Ciudad Juarez and El Paso, and those that have the El Paso water supply conveyance facility as a component of an integrated southern New Mexico (Elephant Butte Irrigation District), Ciudad Juarez, and El Paso water supply system. Even though the alternatives including New Mexico would save 187,000 AF/year instead of 85,000 AF/year for the separate Ciudad Juarez-El Paso system, political opposition in New Mexico suggests that the separate system will probably be the one that is built at a projected cost of $200 million. An additional 29,000 AF/year will be provided by managing water levels in Caballo and Elephant Butte reservoirs for minimal evaporative losses rather than optimizing for hydroelectric production and irrigation water storage. A secondary benefit of building a canal to transport El Paso's water is the decrease in total dissolved solids in Rio Grande water used by El Paso from the present average value of 800 ppm to 400 ppm.(48)

Even though El Paso has embraced the provisions of the settlement, it has taken other steps to protect its water supplies. In a move reminiscent of Los Angeles' buy up "raid" of Owens Valley land nearly 90 years ago, El Paso has purchased water rights to 25,000 acres near Valentine, Texas, one of the "Trans-Pecos basins" receiving drainage from the relatively mesic Davis Mountains.(49) Sensing a mutual threat, El Paso Water Utilities has joined forces with its former opponents, Elephant Butte Irrigation District and New Mexico State University, to oppose the establishment of a well field in the San Luis Valley of Colorado that would send water from the headwaters of the Rio Grande to the Denver metropolitan area.(50) Recently, El Paso has funded a pilot project to evaluate the feasibility of desalinizing brackish irrigation tail water and ground water in the El Paso region.(51)

DISCUSSION

The progression of developments in the El Paso water conflict have paralleled the evolution of water resource allocation in other parts of the arid West.(52) Aggressive demand on water supplies led to federal and state legislation to allocate and protect water supplies which in turn led to legal challenges by parties that needed more water than the legal mandates permitted.(53) These legal challenges can be met by additional legislation, negotiated agreements or litigation.(54) For eleven years El Paso pursued the litigation option but eventually accepted a negotiated agreement. This agreement has led El Paso to engage in "water marketing" and conservation, which are increasingly common interim and de facto solutions to reallocating and extending water supplies.(55) Even though federal irrigation law allocates water rights on assignment to specific acreages, El Paso's purchase of EPCWID land has had a similar effect on the El Paso valley to that of lower Rio Grande cities such as Harlingen, Brownsville and McAllen that have purchased set volumes of water from local irrigation districts.(56) The huge amounts of water "lost" by traditional irrigation and manufacturing practices have led water seekers to pay for and keep the conserved water. The water that El Paso "salvages" from the lining of canals in New Mexico will cost about 70c/1000 gallons which is considerably less than other available supplies. The favorable economics of this practice are demonstrated by the number of cities that are using this method in cooperation with neighboring farmers and manufacturers.(57) The managing of water levels in Caballo and Elephant Butte reservoirs to reduce evaporation at the expense of hydropower production is a strategy under consideration for the Colorado River.(58)

The El Paso vs. New Mexico conflict may have been as bitter and nearly as long as the 1948-1963 Arizona vs. California contest, but it raised different issues. The earlier conflict focused on surface water rights and the allocation of water among the "Lower Basin States" in the 1922 Colorado River Compact.(59) The critical issue was the interpretation of an interstate compact, not the interpretation of one state's right to protect its water supply when there is a potential conflict with the federal commerce clause. The link between the cases is the necessity to resolve an interstate water controversy before a water short region could embark upon a water development scheme. In the 1960s, central Arizona needed Colorado River water to reduce that region's dependence on ground water. Resolution of the Arizona vs. California conflict over allocation of the Colorada River enabled the Central Arizona Project to be authorized and built.

More recently, Las Vegas, Nevada's explosive population growth has placed that city into a position comparable to that faced by El Paso in 1980. Dwindling local ground water supplies, a limit of 480,000 AF/year from the Colorado River (300,000 AF + 180,000 credit for tertiary treated sewage returned to the river) and a per capita use of 310 gallons/day(60) have resulted in plans for ground water raiding from nearby rural counties. Rather than imposing severe water conservation programs such as those in El Paso and Tucson, Las Vegas has proposed a "Cooperative Water Project" that will use 100 wells in Nye, Lincoln and White Pine counties to withdraw 300,000 AF/year for use by Las Vegas.(61) Fear of this "water imperialism" has forced ranchers to join environmentalists to oppose this scheme on the principle that such waters are not "unused" and that withdrawals will cause springs to dry up that are "critical habitat" for endangered species.(62) Water planners for Las Vegas have also cast a covetous eye on the Virgin River, most of whose flow comes from Utah but which also flows through Arizona.(63) Neither the groundwater nor the Virgin River plans have been approved and it is likely that confrontations as bitter, and perhaps, as lengthy as the El Paso vs. New Mexico water conflict may result.

When considered from the perspective of Texas water law, the El Paso case highlights some interesting points. Through case law and statute, virtually all ground water in Texas is controlled by the principle of the property owner's "absolute ownership" of any water that can be withdrawn from his property. Due to extravagant waste and significant harm to adjacent landowners, there has been an erosion of this principle. Whereas "percolating waters" are governed by absolute ownership, the "natural underflow" of surface streams, and "underground rivers" are considered the state's water and allocated by a prior appropriation based permit system.(64) The underground river principle has been applied only since 1992 to the San Antonio section of the Edwards Aquifer.(65) El Paso's Canutillo well field north of downtown on the Rio Grande floodplain would seem to be tapping the "natural underflow" of the Rio Grande, which is a water-losing or "influent" stream for virtually its entire course in the region.(66) If New Mexico had pursued this point, El Paso could have claimed that this principle does not apply because the Rio Grande is an international river and the water that El Paso obtains from these wells does not belong to the state of Texas. In order to cover its position on this point, New Mexico did raise the issue that depleting the Mesilla Bolson would increase transmission losses from the Rio Grande and thereby violate the Rio Grande Compact.(67) Texas case law prohibits taking water from beneath someone else's land through either slant wells or by placing wells on their property without their permission.(68) It would have been interesting if New Mexico had sued El Paso for violating this provision of Texas water law and if New Mexico could have established standing in Texas courts, especially as the violation to Texas water law would have occurred in New Mexico!

The compromise solution to the 11-year El Paso vs. New Mexico confrontation probably will provide El Paso with a water supply as reliable and nearly as inexpensive as ground water from adjacent areas in New Mexico would have been. This resolution, however, did not force the evaluation of the major legal issues. If it had progressed all the way through the courts, it would have clarified the delimitation of a state's police powers when they impinge on interstate commerce. It would have also required the definition of public welfare in the context of a state's police power and federal interstate commerce. Could El Paso have demonstrated that it is in the public welfare of the citizens of southern New Mexico that they enable El Paso to prosper with cheap New Mexico ground water?

The legal resolution of the case would have set a powerful precedent throughout the arid West. If El Paso had won, thirsty Sunbelt cities would have been given a green light to go out raiding for any available water, even if it were in another state. If El Paso had lost, Sunbelt cities would have been forced to impose severe water conservation programs and use more expensive water options such as treated sewage effluent or desalinized brackish ground water. The higher priced water and prospects of future water shortages would have dimmed the economic prospects of these cities. The viability of smaller communities that could not compete in a high priced water market would have been threatened.

In conclusion, the El Paso-New Mexico water conflict was a product of the Sunbelt water paradox and the location of state and national boundaries. Sunbelt cities are attractive because of their sunny winter days and pleasant dry summer evenings; the same climatic factors that produce this desirable climate also produce very little useable water. In order to grow, these urban areas have fought legally entrenched agricultural users of the surface streams or have relied on ground water which also is a finite resource. The dry region streams can only provide a limited amount of water; ground water basins often hold vast supplies of water, but receive negligible recharge because of the region's aridity. Using ground water, therefore, is an extractive use of a non-renewable resource and, consequently, water used by one consumer is water that is forever lost to others.

El Paso's water situation is exacerbated by its outlier location which isolates it from accessible, inexpensive water supplies in the more humid eastern portions of Texas. This accident of geography forced El Paso, aware of the limits of its ground water resources, to seek water in adjacent portions of New Mexico. Not surprisingly, New Mexico opposed these efforts in the interest of protecting its own finite water supply. Legally, this conflict focused upon New Mexico's right to protect the welfare of its citizens when doing so restricts the interstate commerce of water transfers from one state to another. The compromise required the antagonists to work together to reduce water losses, and for El Paso to use the conserved water for its future supply. If the case had been resolved by the U.S. Supreme Court, the El Paso-New Mexico water war would have been one of the longest and most bitter water conflicts in the history of the American West. The compromise worked out represents an acknowledgement of political and environmental realities.

Table 5. Major Components of the New Mexico Water Export law, 1983, 1985(a)

New Mexico Water Export Statute, 1983

72-12B-1 Applications for the transportation and use of public waters outside the state

C. In order to approve an application under this act, the state engineer must find that the applicant's withdrawal and transportation of water for use outside the state would not impair existing water rights, is not contrary to the conservation of water within the state and is not otherwise detrimental to the public welfare of the citizens of New Mexico.

D. In acting upon an application under this act, the state engineer shall consider, but not be limited to, the following factors:

(1) the supply of water available to the state of New Mexico;

(2) water demands of the state of New Mexico;

(3) whether there are water shortages within the state of New Mexico

(4) whether the water that is the subject of the application could feasibly be transported to alleviate water shortages in the state of New Mexico;

(5) the supply and sources of water available to the applicant where the applicant intends to use the water; and

(6) the demands placed on the applicants supply in the state where the applicant intends to use the water

New Mexico "40 year Rule, "1985

72-1-9 Municipal and county water development plans; preservation of municipal and county water supplies.

A. It is hereby recognized by the state of New Mexico that it promotes the public welfare and the conservation of water within the state for municipalities or counties to plan for the reasonable development and use of water resources. The state further recognizes the state engineer's administrative policy of not allowing municipalities and counties to acquire and hold, unused, water rights in an amount greater than their reasonable needs within forty years and recognizes that this administrative policy was incorporated into law by Ch. 2, Laws 1983.

B. Municipalities, counties and public utilities supplying water to municipalities or counties shall be allowed a water use planning period not to exceed forty years, and water rights for municipalities, counties and public utilities supplying water to such municipalities or counties shall be based upon a water development plan for the implementation of which shall not exceed the forty-year period from the date of the application for an appropriation or a change of place or purpose to use pursuant to water development plan or for preservation of municipal or county water supply for reasonably projected additional needs within forty years.

Note: a New Mexico Statues, Senate Bill No. 295, Section 72-12B-1 (Santa Fe, NM: New Mexico State Legislature, 1983); New Mexico Statues, House Bill No. 399, Section 72-1-9 Santa Fe, NM: New Mexico State Legislature, 1985).

Table 6. Major Provisions of the "Settlement Agreement" between El Paso, Elephant Irrigation District, and the Regents of New Mexico State University(a)

1. El Paso agrees to withdraw its litigation without prejudice.

2. El Paso understands and agrees that its goals for meeting water demand should be first, conservation, second, surface water, and third, groundwater.

3. Elephant Butte Irrigation District agrees to withdraw its claims against El Paso for stream adjudication and its claim against El Paso's Canutillo well field.

4. All parties agree that surface and groundwater in the Rio Grande system in New Mexico constitutes an intermingled single source.

5. The parties agree to work together to study, identify and address common concerns and objectives with respect to water resources in the region.

6. The parties agree to study and support, where warranted by study, construction of conveyance facilities to carry project water by pipeline, canal, or other means from Caballo or downstream points to Texas.

7. The parties agree to work together in a cooperative effort to maximize the utilization of waters provided to New Mexico and Texas through the Rio Grande Project in order to provide reliable and cost effective water supplies to meet current and projected long-term agricultural and municipal needs in the region.

8. The New Mexico parties and El Paso agree that conserved water should be treated as the property of those responsible for its conservation, if consistent with applicable water law.

9. The parties agree to establish and participate as members in a joint commission which will coordinate the work set forth in Paragraphs 4, 5, 7, 8, and 11 of the Agreement.

10. Subject to availability of funding, New Mexico State University agrees to help staff and coordinate the work of the joint commission.

11. The parties agree to explore the feasibility of changing or clarifying those legal and institutional requirements and constraints which impede the achievement of the objectives of the Agreement.

12. All parties are responsible for their own attorney's fees and costs.

Note: a New Mexico Court of Appeals, Settlement Agreement: Elephant Butte Irrigation District, The City of El Paso, and The Regents of New Mexico State University, (Las Cruces, NM: New Mexico Court of Appeals, 1991).

Table 7. Major Provisions of the El Paso Water Conservation Ordinance(a)

1. Landscape watering is allowed three days a week based on address and use.

2. From April 1 through September 30, outdoor watering is allowed only before 10:00 AM or after 6:00 PM.

3. A review board can approve requests for variances.

4. Non-commercial car washing is allowed only with a bucket and/or hand held hose with a positive shut-off nozzle.

5. Any activity that causes water to spray or flow into the street or right of way is prohibited.

6. Leaks must be repaired within 5 working days.

7. Washing of sidewalks, driveways, patios, and other non-porous surfaces with a hose is prohibited except to eliminated hazardous conditions.

8. Water users requiring more than 10,000 gallons/day must submit a water conservation plan.

9. Water users of more than 100,000 gallons/day must submit a plan to re-use water as a condition of new or expanded service.

10. Required use of ultra low-flow plumbing fixtures in all new construction and for replacements.

11. El Paso Water Utilities is involved in activities to increase public awareness and participation in water conservation.

12. The city will engage in special programs to hasten and encourage water conservation such as low-flow toilet rebates.

Note: a City of El Paso, "Water Conservation," Municipal Code, Chapter 15.13 (El Paso, TX: City of El Paso, 1992).

NOTES

1. R.F. Durant and M.D. Holmes, "Thou Shalt Not Covet Thy Neighbor's Water: The Rio Grande Basin Regulatory Experience," Public Administration Review, 45(1985):821-831.

2. Ibid; J.C. Day, Managing the Lower Rio Grande (Chicago: The University of Chicago, Department of Geography, Research Paper No. 125, 1970).

3. B. Luckingham, The Urban Southwest: A Profile History of Albuquerque-El Paso-Phoenix-Tucson (El Paso, TX: Texas Western Press, 1982).

4. L.G. Harris, R.J. Czerniak, R.A. Earl, and W.J. Gribb, A Struggle for Water Crosses State Lines: El Paso v. New Mexico, Miscellaneous Research Report (Las Cruces, NM: New Mexico Water Resources Research Institute, 1988); Harris, et al., Whose Water is it, Anyway? (Las Cruces, NM: Arroyo Press, 1990).

5. R.J. Czerniak, "Social Impacts of Sporhase in the Arid West," Evaluation and Program Planning 11(1988):373-378; R.J. Czerniak, Dona Ana Comprehensive Plan (Las Cruces, NM: Dona Ana County Planning Department, 1993); Richard A. Earl and J.A. Harrington, Jr., "Precipitation, Discharge and Southern Oscillation Relationships in the Rio Grande Headwaters," Paper and Proceedings of Applied Geography Conferences, 17(1994):16-24.

6. C.W. Stockton and W.R. Boggess, "Climatic Variability and Hydrologic Processes: An Assessment for the Southwestern United States," in Proceedings of the International Symposium on Hydrometeorology, edited by A.I. Johnson and R.A. Clark (Bethesda, MD: American Water Resources Association, 1982), pp.317-320.

7. Boyle Engineering, El Paso Water Resource Management Plan: 1990-2040 (El Paso, TX: Boyle Engineering, 1992).

8. M. Reisner, Cadillac Desert: The American West and its Disappearing Water (New York: Viking Penguin, Inc., 1986).

9. Day, Managing the Lower Rio Grande.

10. Z. Smith, Groundwater in the West (San Diego, CA: Academic Press, 1989); J.L. Wescoat, Jr., "Challenging the Desert," in The Making of the American Landscape, edited by M.P. Conzen (New York: Routledge, 1990), pp. 186-203.

11. M.K. Larson and T.L. Pewe, "Earth Fissures and Land Subsidence Hazards in Northeast Phoenix," Fieldnotes, 12(2)(1983):8-11; C.C. Winikka, "A View of Subsidence," Fieldnotes 14(3)(1984): 1; G.J. Contaldo, Earth Fissures and Land Subsidence near Deming, New Mexico, M.S. Thesis (New Mexico State University: 1989); R.W. Baumgardner, Jr. and B.R. Scanlon, "Surface Fissures in the Hueco Bolson and Adjacent Basins, West Texas," Geological Circular 92-2 (Texas Bureau of Economic Geology: 1992).

12. I.G. Clark, Water in New Mexico: A History of its Management and Use (Albuquerque, NM: University of New Mexico Press, 1987).

13. B. Wilson, Water Use in New Mexico, 1985, New Mexico State Engineer Office Technical Report no. 46 (Santa Fe, NM: Office of the State Engineer, 1986); B. Wilson, Water Use by Categories in New Mexico Counties and River Basins, and Irrigated Acreages in 1990, New Mexico State Engineer Office Technical Report no. 47 (Santa Fe, NM: Office of the New Mexico State Engineer, 1992).

14. Ibid.

15. B.R. Orr and R.G. Meyers, Water Resources in Basin-Fill Deposits in the Tularosa Basin, New Mexico, U.S. Geological Survey Water Resources Investigations Report 85-4219 (1986); B.R. Orr and R.R. White, Selected Hydrologic Data from the Northern Part of the Hueco Bolson, New Mexico and Texas, U.S. Geological Survey Open File Report 86-G96 (1985); C.A. Wilson and R.R. White, Geohydrology of the Central Mesilla Valley, Dona Ana County, New Mexico, U.S. Geological Survey Water Resources Investigations Report 82-555 (1984).

16. Economic Development Council, City of Las Cruces and Dona Ana County, Historical and Projected Population Growth: City of Las Cruces (Las Cruces, NM: Economic Development Council, 1989).

17. Clark, Water in New Mexico.

18. Boyle Engineering, El Paso Water Resource Management Plan: 1990-2040.

19. New Mexico State Engineer Office, Transcripts of the El Paso Hearings, November 18, 1986, to December 7, 1987 (Las Cruces, Santa Fe, NM: Office of the New Mexico State Engineer, 1998).

20. El Paso Water Utilities, Nothing Takes the Place of Water, (El Paso, TX: El Paso Water Utilities, 1994).

21. Arizona Department of Water Resources, Draft Management Plan, Second Management Period, Tucson Active Management Area (Phoenix, AZ: Arizona Department of Water Resources, 1988).

22. J.R. Mather, Water Resources (New York: John Wiley, 1984).

23. Wilson and White, Geohydrology of the Central Mesilla Valley, Dona Ana County, New Mexico.

24. L. Wilson, Water Supply Alternatives for El Paso (Santa Fe, NW: Lee Wilson and Associates, Inc., 1981).

25. Durant and Holmes, "Thou Shalt not Covet Thy Neighbor's Water."

26. New Mexico Department of Agriculture, New Mexico Agricultural Statistics 1987 (Las Cruces, NM: New Mexico Department of Agriculture, 1988); B. Wilson, Water Use in New Mexico, 1985.

27. Clark, Water in New Mexico.

28. H.F. Flint, "Ground Water Law and Administration: A New Mexico Viewpoint," Fourteenth Annual Proceedings, (Tucson, AZ: Rocky Mountain Mineral Law Institute, July 1968).

29. L.G. Harris, "New Mexico Water Rights," Miscellaneous Report No. 15 (Las Cruces, NM: New Mexico Water Resources Research Institute, 1984).

30. New Mexico State Engineer Office, Annual Report State Engineer of New Mexico, 75th Fiscal Year July 1, 1986 to June 30, 1987 (Santa Fe, NM: Office of the New Mexico State Engineer, 1987).

31. Durant and Holmes, "Thou Shalt not Covet Thy Neighbor's Water"; Clark, Water in New Mexico.

32. Clark, Water in New Mexico.

33. U.S. Supreme Court, "Sporhase v. Nebraska," U.S. Reports 458(1982):941.

34. Ibid.

35. C.P. Nelson, "Sporhase v. Nebraska ex. rel. Douglas: A Call for New Approaches to Water Resources Management," Water Resource Management 11(1984):283-328; F.J. Trelease, "Interstate Use of Water - Sporhase v. Nebraska, Pike Vermejo," Land and Water Law Review XXII(1987):315-346; N.E. Hetrick, "Recent Developments in the El Paso/New Mexico Interstate Groundwater Controversy - The Constitutionality of New Mexico's New Municipality Water Planning Statutes," Natural Resources Journal, 29(1989):223-249.

36. Hetrick, "Recent Developments in the El Paso/New Mexico Interstate Ground Water Controversy."

37. Harris, et al., Whose Water is it, Anyway?

38. Hetrick, "Recent Developments in the El Paso/New Mexico Interstate Ground Water Controversy."

39. Harris, et al., Whose Water is it, Anyway?

40. Hetrick, "Recent Developments in the El Paso/New Mexico Interstate Ground Water Controversy."

41. "U.S. Court Rejects El Paso Suit for NM Water," El Paso Times, April 19, 1990.

42. Boyle Engineering, El Paso Water Resource Management Plan: 1990-2040.

43. "Board OKs Water Limits for El Paso," El Paso Times, November 28, 1990, p. 2B; "El Paso Adopts Broad Water-Conservation Plan," El Paso Times, March 13, 1991, p. 2B; El Paso Water Utilities, Nothing Takes the Place of Water.

44. Donna Britton, personal communication, July 5, 1994; August 23, 1995 (El Paso, TX: El Paso Water Utilities). El Paso Water Utilities, Nothing Takes the Place of Water.

45. Durant and Holmes, "Thou Shalt Not Covet Thy Neighbor's Water."

46. Boyle Engineering, El Paso Water Resource Management Plan: 1990-2040.

47. C.R. Bath and J.M. Tanski, Resolving Water Disputes Along the U.S.-Mexico Border: The Case of the El Paso del Notre (Las Cruces, NM: New Mexico State University, Border Research Institute, 1994).

48. Boyle Engineering, New Mexico/Texas Joint Conveyance Facility for Rio Grande Project Water, Phase I Report for Joint Settlement Commission (El Paso, TX: Boyle Engineering, 1993).

49. "Rural Residents Battle Thirsty El Paso," Albuquerque Journal, October 19, 1991, p. B3; Bath and Tanski, Resolving Water Disputes Along the U.S.-Mexico Border: The Case of the El Paso del Norte.

50. "Colorado Pumping not Drying up Rio Grande, Engineer Says," El Paso Times, July 2, 1991, p. 1B.; "Colorado is Digging for a Fight," El Paso Times, September 15, 1991, p. 2B.

51. Boyle Engineering, Interim Phase I Report: Desalinization Feasibility Study for El Paso Water Utilities Public Service Board (El Paso, TX: Boyle Engineering, 1993).

52. T.S. Maddock and W.G. Hines, "Meeting Future Public Water Supply Needs: A Southwest Perspective," Water Resources Bulletin, 31(1995):317-329.

53. Z.L. McCormick, "Interstate Water Allocation Compacts in the Western United States - Some Suggestions," Water Resources Bulletin 30(1994):385-395.

54. O.P. Matthews, "Judicial Resolution of Transboundary Water Conflicts," Water Resources Bulletin 30(1994):375-385.

55. F.A. Schoolmaster, "Water Marketing and Water Rights Transfers in the Lower Rio Grande Valley, Texas," The Professional Geographer 43(1991):292-304; C. Chang and R.C. Griffin, "Water Marketing as a Reallocative Institution in Texas," Water Resources Research 28(1992):879-890.

56. Schoolmaster, "Water Marketing and Water Rights Transfers in the Lower Rio Grande Valley, Texas."

57. M.B. Horowitz, "Trading Water in California," Environment 31(5)(1989):22-23; Ariel Dinar and J. Letey, "Agricultural Water Marketing, Allocative Efficiency, and Drainage Reduction," Journal of Environmental Economics and Management, 20(1991):210-223; Committee on Western Water Management, Water Transfers in the West, (Washington, DC: National Academy Press, 1992); A.M. Michelsen and R.A. Young, "Optioning Agricultural Water Rights for Urban Water Supplies During Drought," American Journal of Agricultural Economics, 75(1993):1010-1020.

58. J.F. Booker and R.A. Young, "Modelling Intrastate and Interstate Markets for Colorado River Water Resources," Journal of Environmental Economics and Management, 26(1994):66-87.

59. Reisner, Cadillac Desert: The American West and its Disappearing Water.

60. D.B. Rosenbaum, "Las Vegas Area Slakes its Thirst," Engineering News Record 234(14)(1995):8-9.

61. The Economist, "Every Drop has its Price," The Economist, 320(7726)(1991):28-29.

62. F. Graham, Jr., "Gambling on Water," Audubon (July-August 1992):65-69.

63. T.S. Maddock and W.G. Hines, "Meeting Future Public Water Supply Needs: A Southwest Perspective," Water Resources Bulletin, 31(1995):317-329.

64. R.A. Kaiser, Handbook of Texas Water Law: Problems and Needs (College Station, TX: Texas Water Resources Institute, 1985).

65. R. Illgner, The Edwards Aquifer: Political Prisoner (San Antonio, TX: Edwards Underground Water District, 1993).

66. Wilson and White, Geohydrology of the Central Mesilla Valley, Dona Ana County, New Mexico.

67. Durant and Holmes, "Thou Shalt not Covet Thy Neighbor's Water."

68. R.A. Kaiser, Handbook of Texas Water Law: Problems and Needs.

Richard A. Earl is Assistant Professor in the Department of Geography and Planning at Southwest Texas State University. His research interests include environmental management, quaternary environmental analysis, and water resources.

Robert J. Czerniak is Associate Professor and Head of the Department of Geography at New Mexico State University. His research interests include community development, urban geography and transportation planning.
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Publication:The Social Science Journal
Date:Oct 1, 1996
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