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Colorado caught in Texas/NM suit

Posted: Thursday, Jan 10th, 2013

Craig Cotten

Courier editor

ALAMOSA — Texas filed suit against New Mexico over Rio Grande Compact disputes, with Colorado brought into the fray as a result, Colorado Division of Water Resources Division 3 Engineer Craig Cotten told San Luis Valley water leaders during Tuesday’s Rio Grande Roundtable meeting.

The suit, filed in U.S. Supreme Court on Tuesday, alleges New Mexico is not delivering to Texas the water owed that state under the compact, which also includes Colorado.

Cotten had just learned of the suit Tuesday morning and said he was not exactly sure of the specifics. He said the main disagreement was between New Mexico and Texas, but since Colorado is part of the multi-state 1938 Rio Grande Compact, it was included.

“The State of Texas is requesting no action from the State of Colorado.  They are included only because they are a signatory to the compact,” a January 8 release from the Texas Commission on Environmental Quality (TCEQ) stated.

TCEQ Commissioner Carlos Rubinstein said, “It is unfortunate that we have had to resort to legal action, but negotiations with New Mexico have been unsuccessful, and Texas is not getting the water that it is allocated and legally entitled to.”

Rubinstein alleged New Mexico was trying to circumvent and ignore the compact, and by filing suit against New Mexico, Texas was attempting to rectify alleged harm New Mexico had caused Texas water users.

“It will only get worse in the future unless something is done now,” Rubinstein stated.

“These illegal diversions of water in New Mexico are having an ongoing negative effect on the amount of water available for use by Texas farmers,” added Pat Gordon, Rio Grande Compact Commissioner. “The city of El Paso also counts on Texas’ water allocation for half of its water supply. Our attempts to negotiate a resolution with the State of New Mexico were not successful and only resulted in New Mexico initiating very aggressive litigation aimed at capturing water that belongs to the Rio Grande Project and the State of Texas.  Our dispute is not with New Mexico farmers who are part of the Rio Grande Project. Texas had no choice but to take action against the State of New Mexico in the U.S. Supreme Court to protect its rights under the 1938 Compact.”

Texas is alleging that New Mexico has allowed hundreds of thousands of acre-feet of water to be illegally diverted from the Rio Grande downstream of Elephant Butte Reservoir, the storage facility for the three-state Rio Grande Compact.

“Essentially, New Mexico is delivering water to Texas at Elephant Butte Reservoir and then re-diverting Texas’ water below the reservoir as it is being released to Texas,” TCEQ officials stated.

“The illegal diversion of this water is negatively impacting water flows in the river, taking water that is released for the Rio Grande Project beneficiaries, including the State of Texas … Grave and irreparable injury has occurred and will be suffered in the future by Texas and its citizens unless relief is afforded by the court to prevent New Mexico from using and withholding water which Texas is entitled to, and which New Mexico is obligated to deliver, under the Rio Grande Compact and Rio Grande Project Act.” 

Cotten said the engineer advisors for each state are scheduled to meet on the compact in February, and the annual Rio Grande Compact Commission meeting will be held in Alamosa this year on March 21 at Adams State University.

As far as Colorado’s deliveries to downstream states in 2012, the state over-delivered its obligation by about 6,000 acre feet, Cotten explained. The over deliveries were all from the Conejos River system, which sent about 9,000 acre feet more than was required to downstream states. The Rio Grande under-delivered about 3,000 acre feet, so between the two rivers, the state ended up with a credit of about 6,000 acre feet.

Cotten said he hoped Colorado would be able to work with Texas to relinquish that credit water to Texas in exchange for the ability to store water up here. Since Elephant Butte Reservoir has been so low, Colorado has been prohibited from storing water in post-compact reservoirs in Colorado, according to provisions of the Rio Grande Compact.

In addition to sharing the latest information on the compact, Cotten updated the Roundtable members on the status of the snowpack. He said the Rio Grande Basin was about 60 percent of average as of Tuesday.

“We need about 137 percent of average from now on through the rest of the winter season to get us even up to that average level,” he said. “We definitely need some more snow.”

He said the Natural Resources Conservation Services’ stream forecast for this year predicts about 66 percent of average flow on the Rio Grande and 74 percent of average on the Conejos River system, or about the same as 2012. Forecasts for the rest of the streams around the San Luis Valley vary from 36 to 76 percent of average, he added.

“We have still got a few months of winter left, and we can definitely get some good snow still, but it is not looking real good so far.”

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