[Presented to the Water and Natural Resources Committee of the New Mexico House of Representatives on September 11, 2000, by John Utton of Sheehan, Sheehan & Stelzner, PA]
September 11, 2000
Prepared by: Sheehan, Sheehan & Stelzner, PA
J. Brian Smith, Esq.
P.O. Box 271
Albuquerque, NM 87103
(505) 247-0411
I. Introduction:
The Bureau of Reclamation (BOR) has ordered the Fort Sumner Irrigation District (FSID) to cease diverting 30 percent of its water right or face a federal takeover of Its diversion dam. As authority for this action, BOR claims an ownership interest in the diversion dam based on a 1949 repayment contract between BOR and FSID under which BOR rehabilitated FSID's irrigation works.BOR asserts that FSID's water is needed to support the critical habitat of the Pecos bluntnose shiner, which is listed as a threatened species under the Endangered Species Act. This federal action continues a trend of "federalization" of water management throughout the western United States to provide water for endangered species. FSID plans to pursue legal means to defend its water right to the fullest extent possible; however, FSID does not have the financial means to battle the federal government alone. The State of New Mexico should assist irrigation districts in this battle to defend the property rights of the citizens of New Mexico, as well as the right of the State to manage its own waters. The State should also consider implementing a drought assistance program that would provide water for endangered species in times of drought.
II. General Description of the District
FSID is located on the east bank of the Pecos River in DeBaca County, New Mexico. FSID encompasses approximately 6,500 acres of irrigable land, of which approximately 6,060 acres are currently under irrigation. The principle crops are alfalfa, hay, corn, grain sorghum, wheat, vegetables, apples, and grapes. The annual crop value is over $1 million. FSID's annual operation and maintenance costs are approximately $193,698. FSID serves 282 farms with a farm population of 586.
FSID diverts water from the Pecos River pursuant to a water right established in 1933 by the Hope Community Ditch Decree. FSID and its landowners have a right to divert I00 cubic feet per second (cfs) of water from the Pecos River during the months of March through October, and two eight-day periods during the winter months. In 1998, FSID's net supply of water was 45,970 acre-feet of water for a farm delivery of 32,178 acre-feet.
Ill. FSID's relationship with the Bureau of Reclamation
FSID was created by local farmers in I 919 as a completely non-federal enterprise. However, floods in 1941 and 1942 necessitated costly repairs, which were only temporary , and by 1946 the system needed complete rehabilitation. FSID could not secure private funding, so it requested assistance from the Bureau of Reclamation (BOR). In 1948 and 1949, after ratification of the Pecos River Compact, Congress passed authorizing legislation for the Fort Sumner Project. Pursuant to a repayment contract between FSID and BOR, BOR completed rehabilitation of the irrigation works in 1951. FSID makes annual payments under the contract, which will continue under the current repayment plan until 2033.
Over the years, FSID's operations have had only minimal federal involvement. FSID has always operated its diversion dam and irrigation works. FSID has its own water right, so it is not dependent on "federal" water for its irrigation. Moreover, FSID has no storage right; therefore, it is not dependent on BOR or the Army Corps of Engineers for storage and delivery of its water. Federal involvement in FSID has been limited primarily to periodic inspections by BOR of the dam and diversion works to ensure proper operation and maintenance, receipt of annual payments and annual crop production reports from FSID and ensuring that FSID's water is bypassed (not stored or captured) at Sumner Dam and Reservoir (Sumner Dam was constructed under the Carlsbad Project and serves the Carlsbad Irrigation District and not FSID).
IV. Federal Assertion of Authority over FSID
On June 29, 2000, BOR ordered FSID to re-operate its diversion dam to reduce its diversion amount by 30 percent due to water shortages. BOR 's order asserts that it has an ownership interest in the diversion dam that necessitates the action in order to comply with the Endangered Species Act and that, pursuant to a provision in the repayment contract, BOR will take over operation of the dam if FSID fails to comply with the order.
The Bureau's order on the Pecos River follows the filing in May of a lawsuit by Forest Guardians challenging the Bureau's and the Army Corps of Engineer's water management activities on the Pecos River. The environmental group claims that the federal agencies are not complying with key provisions of the Endangered Species Act for the protection of the Pecos bluntnose shiner, which was listed as a threatened species in 1987. These actions on the Pecos River parallel actions on the Rio Grande, where environmental groups have filed suit over protection of the endangered Rio Grande silvery minnow, and the Bureau issued a similar order to the Middle Rio Grande Conservancy District. The Bureau's order on the Rio Grande was resolved, at least temporarily, after Senator Pete Domenici threatened to limit the use of Bureau funding through a pending appropriations bill.
V. FSID's response to the threat of federal takeover
FSID responded in writing to BOR's order, asserting that the order is unlawful and demanding its immediate withdrawal. FSID asserted in its response that the order was an unlawful infringement on FSID's water right, which was established by federal decree and that federal Reclamation law requires the Secretary of the Interior to manage its irrigation projects on the Pecos River in a manner that will not detrimentally affect Pecos River water rights. FSID further asserted that the order is an unlawful attempt to administer state water rights, which the Bureau has no authority to do under federal Reclamation law. Also, by targeting FSID's senior rights, the Bureau has disregarded the state law doctrine of prior appropriation in an action that is completely arbitrary and that has no basis in state or federal law.
FSID also disputed BOR 's authority under the repayment contract and under ESA [Endangered Species Act] to take over operation of the dam. FSID is operating the dam in accordance with the contract, thereby providing no cause for federal takeover. With respect to ESA, BOR's past commitment of resources fifty years ago through a repayment contract does not impart on BOR discretionary authority or responsibility under ESA with respect to FSID's operation of the dam.
FSID's response also criticized the practicality of the order, because biological documents prepared by the Bureau and the United States Fish & Wildlife Service overwhelmingly indicate that adverse impacts to the Pecos bluntnose shiner result from BOR 's management of water releases from its dams and reservoirs on the river and not from FSID' s diversions. The Bureau operates dams both upstream and downstream from FSID that serve the Bureau's Carlsbad Project, with which FSID is not associated. Moreover, there is no hydrologic analyses showing that a 30 percent reduction in FSID's diversion will result in any appreciable difference in downstream flow in the critical habitat areas. On the other hand, FSID believes that a 30 percent reduction in water will have serious consequences for the farmers who depend on water deliveries from FSID.
VI. The potential impact of the federal order
FSID could not remain viable at a diversionary amount reduced to 70 cfs. It takes the full diversionary amount for FSID's system to operate at full efficiency. At 70 cfs, the system will be inefficient or may not operate at all. Equally critical is the impact that such a reduction would have on FSID's crop production. During a period this summer, FSID was able to divert only 80 cfs because of drought conditions. At a diversionary amount of 80 cfs, FSID's crops were dying and its farms were drying up. FSID simply has no excess water that it can give up.
Vll. FSID's attempts to cooperate with BOR
FSID offered to lease water to BOR in June of this year, prior to issuance of the order. For whatever reason, BOR did not accept the offer. About two weeks ago, BOR approached FSID with an offer to pay for FSID crop losses if FSID would cease diverting a portion of its water right. Since then, FSID and BOR have been negotiating the terms of a forbearance program whereby individual irrigators within FSID may sign an agreement to cease diverting water for a specified number of acres in exchange for federal compensation of $301 per acre for crop losses. BOR has earmarked $400,000 for the program, which will compensate for about 1,300 acres. FSID farmers have tentatively offered up 2,500 acres for the program. If the parties can work out the remaining details, the participating farmers will cease irrigating on September 15.
FSID also plans to participate voluntarily in mediation in the Forest Guardians' lawsuit to attempt to resolve Pecos River water management issues. FSID also plans to participate as a cooperating agency in an environmental impact study being conducted by BOR and the New Mexico Interstate Stream Commission which will, in part, review FSID's operations and management.
FSID plans to do everything within its means to protect its water rights in order to ensure the continued viability of FSID and the landowners that it serves. This includes intervening in the Forest Guardians' suit, if necessary, or filing its own lawsuit against BOR and the Department of the Interior.
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