Journals
Summer 2007, Vol. 47, No. 3
Symposium on New Mexico’s Rio Grande Reservoirs, Co-sponsored by the Natural Resources Journal and The Utton Transboundary Resources Center
Symposium on New Mexico’s Rio Grande Reservoirs: An Introduction
Susan Kelly
This issue of the Natural Resources Journal is devoted to the laws and policies of the Rio Grande reservoirs in New Mexico. The issue represents a continuation of the scholarship inspired by Professor Albert Utton, long-time editor-in-chief of the Journal. Several of the articles in this issue were presented at the “Rio Grande Reservoir Symposium” held at the University of New Mexico School of Law in April 2006. The Symposium was co-sponsored by The Utton Transboundary Resources Center and the Natural Resources Journal. This issue also includes an extensive update of Professor Utton’s 1979 “Legislative History of the Rio Grande Reservoirs.”
Surface Water Management: Working Within the Legal Framework
Kevin G. Flanigan
There are six major reservoirs in New Mexico upstream of the Middle Rio Grande. This article provides some background on how those reservoirs are operated within the current legal framework and how those operations meet various purposes and needs within the Middle Rio Grande.
Between the Colorado-New Mexico state line on the north and Elephant Butte Reservoir on the south, four major tributaries join the Rio Grande, including the Rio Chama, the Jemez River, the Rio Salado, and the Rio Puerco. The Rio Chama is the primary tributary, heading in the San Juan Mountains of southwest Colorado and joining the Rio Grande just north of Española. Other significant tributaries include the Red River, Rio Pueblo de Taos, Embudo Creek, and Galisteo Creek flowing out of the Sangre de Cristo Mountains; the Jemez River flowing out of the Jemez Mountains; and the Rio Salado and Rio Puerco, which join the Rio Grande just above San Acacia. With the exception of the Rio Chama and the larger streams originating in the Sangre de Cristos, these tributaries are ephemeral, flowing only during snowmelt runoff or in response to heavy precipitation events.
The six major reservoirs described here are Heron, El Vado, and Abiquiu on the Rio Chama; Cochiti on the Rio Grande; Galisteo on Galisteo Creek; and Jemez Canyon on the Jemez River. Reservoir storage is usually discussed in units of acre-feet, which is the amount of water that it takes to cover one acre to a depth of one foot, or approximately 326,000 gallons.
History of the Rio Grande Reservoirs in New Mexico: Legislation and Litigation
Susan Kelly, Iris Augusten, Joshua Mann & Lara Katz
Nearly all of the dams and reservoirs on the Rio Grande and its tributaries in New Mexico were constructed by the federal government and were therefore authorized by acts of Congress. These congressional authorizations determine what and how much water can be stored, the purposes for which water can be stored, and when and how it must be released. Water may be stored for a variety of purposes such as flood control, conservation storage (storing the natural flow of the river for later use, usually municipal or agricultural), power production, sediment control, fish and wildlife benefits, or recreation. The effect of reservoir operations derived from acts of Congress is to control and manage the flow of rivers.
When rivers cross state or other jurisdictional boundaries, the states are very mindful of the language in the congressional authorization. Simply put, an upstream state will want flexibility to store and use as much water as possible and, except for protection from extreme flood events, a downstream state will seek to guard against water being held that would otherwise flow downstream. When interstate compact obligations, ecological considerations, Indian and non-Indian water rights, and international treaties are thrown into the mix, a significant area of law develops concerning the reservoirs that is vital to each state and its inhabitants as well as to national interests. This article summarizes the federal Acts and the negotiations among the affected states and other interests when the Rio Grande reservoirs in New Mexico were authorized, highlighting other important legal developments that have affected the operations of the dams.
An Environmental Pool for the Rio Grande
Kara Gillon
The Bureau of Reclamation and Corps of Engineers operate a series of dams, reservoirs, and levees along the Middle Rio Grande of New Mexico. The plight of the Rio Grande silvery minnow, an endangered species, and of the river itself demonstrates the need for a change from the emphasis on water development to sustainable river management. Conservation groups invoked the protections of the Endangered Species Act to catalyze this change. Recognizing that flexibility is necessary to meeting competing water needs, the groups also promoted the need for and several approaches to a sustainable and long-term approach to river management and wildlife protection. Recently, several conservation groups took a major step forward for the river with the creation of space to store environmental water in an upstream reservoir and are now exploring how to integrate an environmental water account into the existing context.
The History of Cochiti Lake from the Pueblo Perspective
Regis Pecos
In the last 30 years, Cochiti Pueblo has been in a fight for their survival culturally, politically, legally, economically, and environmentally. The construction of Cochiti Lake, one of the largest man made lakes in the United States, built by the U.S. Corps of Engineers, devastated nearly all of the available agricultural lands, destroyed the majority of traditional summer homes, drastically changed the ecosystem, and desecrated cherished places of worship. To make matters worse, a few years after closure of the gates that created Cochiti Lake, seepage occurred and put under water the remaining agricultural lands of the Pueblo, creating wetlands and transforming the world of Cochiti overnight. The Cochiti lost their agricultural way of life and have suffered profound consequences as a result.
This article is a summary of a presentation for the Utton Transboundary Resource Center, Rio Grande Reservoir Symposium on April 22, 2006, where firsthand experiences of those challenges faced by the Cochiti Pueblo during the last 30 years were shared. From the lawsuit against the U.S. Corps of Engineers and the U.S. government to hold them liable for the destruction, desecration, and devastation, to congressional oversight hearings, the threat of hydro-electric power development, and the debates of religious and cultural protection in Congress, the impacts of the ill-advised development of Town of Cochiti Lake and the 99-year master lease creating the community, to the struggles of management of Cochiti Lake, the long struggle to restore lands destroyed, and the ultimate reconciliation of the Cochiti Pueblo and the Corps of Engineers. The past legal battles, policy debates, rights lost, rights regained, a newly defined relationship between the Corps of Engineers and the Pueblo dictate the present and future mitigation, management issues, and decisions pertaining to Cochiti Lake. Just as the Cochiti Pueblo has regained standing, the issues of the silvery minnow and the drought raise new and equally difficult challenges for the future. In many ways, it is like peeling away a scab and it bleeds all over again.
Modeling Reservoir Storage Scenarios by Consensus
Susan Kelly
Computer modeling is a powerful scientific tool to simulate the behavior of systems under a variety of possible future scenarios. Many scientists are involved in simulating the Rio Grande in various conditions, both natural and manmade. This article describes a collaborative process for developing simulations that can be used to understand the probable effects of changed operations of the system of Rio Grande reservoirs. Participants learned that even developing hypothetical model runs can be controversial. It was difficult to achieve consensus among a diverse group of interested parties on how to model future scenarios for management of the reservoirs.
History of the Minnow Litigation and Its Implications for the Future of Reservoir Operations on the Rio Grande
Lara Katz
At the intersection of the Endangered Species Act and the Rio Grande lies the silvery minnow. In 1996, this tiny endangered fish found itself at the heart of a drought-sparked battle over the Rio Grande between an array of interests that has resulted in a tangled morass of litigation. The history of the minnow litigation, the legislative response it provoked, and the attempts at collaborative solutions all show a system under stress. The issues brought out in the struggle between the endangered silvery minnow and the various water users along the Rio Grande go to the heart of the relationships between federal and state law; human beings and the environment; and the past, present, and future of water usage and management on the Rio Grande. This article traces the outlines of those issues in a historical examination of the minnow litigation as it relates to the Rio Grande reservoir system.
Carryover Storage of Indian Prior and Paramount Water in El Vado
Viola Sanchez
Storage and release for the Six Middle Rio Grande Pueblos has taken place at El Vado Reservoir since the reservoir was first used in 1935. No distinction was made between the lands being served and their appurtenant water rights in storage and delivery in the early years of El Vado operation. El Vado storage and release for Indian lands became an issue at least as early as 1948 because of Rio Grande Compact restrictions on El Vado releases. As a result of this and other alleged Rio Grande Compact violations by New Mexico, Texas filed a Supreme Court lawsuit, Texas v. New Mexico No. 9, Original, in October 1951. The case was never decided on its merits. Notwithstanding the legal and technical challenges involved with storage and release for Indian lands at El Vado during times of Rio Grande Compact restrictions, El Vado storage and release of water for the prior and paramount lands has continued to this day.
One of the oddities about the practice is that unused storage for Indian lands is not carried over from one year to the next. In some cases it is not carried over from one month to the next. This is not a typical practice in reservoir operations. This article will focus on legal reasoning and evidence that may have led to this practice. Background material and analysis is presented on (1) carryover storage; (2) Indian prior and paramount and newly reclaimed water rights; (3) the Rio Grande Compact; (4) the 1981 El Vado Storage Agreement; (5) El Vado ownership and operation; (6) El Vado inflow hydrology and shortages; (7) the permits that the Middle Rio Grande Conservancy District obtained from the New Mexico State Engineer; and (8) the position of Steve Reynolds, New Mexico State Engineer and New Mexico Commissioner for the Rio Grande Compact. A discussion on whether carryover storage can be allowed in the future is also included.
A Reservoir Runs Through It: A Legislative and Administrative History of the Six Pueblos’ Right to Store “Prior and Paramount” Water at El Vado
Joshua Mann
This article explores the Six Middle Rio Grande Pueblo tribes’ right to store water at El Vado Reservoir. Although not explicitly authorized in the Act of 1928, the legislative history suggests that implicit in the Act is authority for the Six Pueblos to store water at El Vado. The seventieth Congress believed the Six Pueblos’ land suffered from a rising water table, antiquated irrigation works, and an unreliable river flow. Accordingly, it intended all of the Pueblos’ lands within the boundaries of the Middle Rio Grande Conservancy District (MRGCD) to “materially benefit” from the Conservancy Project, which included storage at El Vado. The Department of the Interior acted upon the authorizations contained in the 1928 Act by entering into a series of agreements with the MRGCD. Those agreements explicitly recognized the Pueblos’ right to store water at El Vado. Additionally, the Pueblos may have a right to store under New Mexico law through the MRGCD’s storage permit No. 1690. That permit does not contain any limitation on the type of water rights authorized for storage at the Reservoir. The MRGCD included the Six Pueblos’ lands in its permit application No. 0620 and did not exclude them from its permit application No. 1690.
