Drought, judge stops water flow

Paul Krza

for el defensor chieftain

   Socorro County farmers in the Middle Rio Grande Valley took a hit on two fronts this spring; from the skies and in the courts.

   Continuing dry conditions have already cut irrigation supplies and even less water may be available in coming years if a federal judge's decision sticks that calls for farmers to share the river to save the endangered silvery minnow.

   But, so far, there's no sign that the agriculture community has panicked. The Middle Rio Grande Conservancy District plans to appeal federal District Judge James Parker's minnow decision. Farmers are planting crops as usual, hoping for summer monsoons. And only a few landowners have sold water rights, a sign that they've given up on farming.

   What happens with the valley's biggest cash crop ­ alfalfa ­ depends on the monsoons, says John Carangelo, a La Joya farmer who is also chairman of the Socorro Soil and Water Conservation District.

   "There's going to be enough water (in the river) for us to get at least two cuts of alfalfa and then, when we get into monsoon season, it's in God's hands," Carangelo says. But "if the monsoons don't materialize, we just get our income cut in half," he says.

   The MRGCD, faced with a low snowpack that feeds irrigation reservoirs in northern New Mexico, early on imposed a rotation schedule for valley farmers. Almost no rain has fallen in the past few months, and federal weather forecasters say the outlook for the next two months is equally bleak.

   In the meantime, Judge Parker delivered another blow. Parker says the MRGCD and the city of Albuquerque must share their allocations of both river water and water diverted from the Colorado River basin in the San Juan-Chama project to help ensure the silvery minnow's survival. Albuquerque is working on a $170 million project to use its San Juan-Chama water and Rio Grande water to replace its groundwater wells. This week, the city announced that it would appeal Parker's decision. MRGCD Chief Engineer Subhas Shah said the district will also challenge Parker's determination that the federal government owns dams and other irrigation facilities. A federal appeals court in Denver will decide the case.

Water rights: For use or for sale?

   San Acacia farmer Corky Herkenhoff says the Parker decision could have a major impact on farmers' water rights. If farmers have to give up water for fish habitat, "that's pretty clearly a taking," he says.

   A "fair portion" of farmers in Socorro County have "pre-1907" water rights, Herkenhoff says, which means that they own the water outright without having to be permitted by the State Engineer.

   That means the rights are essentially a farmer's "property," and they should be compensated if the water is "taken" for other than agriculture purposes, he says.

   The pre-1907 water is also a valuable commodity, bought and sold on the open market. The going price for an acre-foot of water in the Rio Grande Valley is from $4,000 to $4,500, according to water brokers and buyers.

   Upstream interests -- including gravel pits, manufacturers and the cities of Albuquerque and Rio Rancho -- have been purchasing water from farmers downstream for years.

   Herkenhoff says he's aware of small sales but not large amounts of water rights. "I don't think any irrigators are so short-sighted," he says.

   "We're not knocking on doors, but since the late 1980s ,we've have a standing offer to buy water rights and we're still the largest buyer of rights," says Susan Kelly, the water rights manager for the city of Albuquerque.

   Last year, the city made nine different water rights purchases, averaging each about 21 acre-feet for about $4,000 per acre-foot, she says. But even after decades of buying, the city has acquired only about 3,000 acre feet, a small drop in the big water bucket.

   The city's San Juan-Chama project, by comparison, involves about 48,000 acre-feet of water.

   The city of Rio Rancho is also looking for water rights. The city is in the midst of a water battle with the state over its plans to pump another 12,000 acre-feet out of the underground.

   State Engineer Tom Turney told the city it has to find water rights to immediately offset the pumping, a change from the past when the rights weren't needed until the pumping effects showed up -- in this case, maybe not for 40 or 50 years.

   Rio Rancho has appealed the ruling, but, if the city loses, "we're going to have to aggressively purchase water rights," says City Administrator James Jimenez.

   Albuquerque-based water broker William Turner, whose Westwater Resources is the largest such company in New Mexico, says most of the recent water rights sales have been small, and largely in the area south of Albuquerque. In the "serious agricultural areas," like around Socorro, farming is dominated by "really big producers" who aren't selling -- yet, he says.

   "They've been in business for years and the reason is they're good businessmen," Turner says. "Many of them are still acquiring property, and these are not really people who are anxious to sell their water rights.

   "Someday, maybe, they will be sold, perhaps by their children. But right now agriculture around Socorro looks pretty stable."

   But, as Herkenhoff notes, "agricultural water is the only water that's available to the state of New Mexico for growth and development of anything -- for household use, industrial use or whatever."

   Down the road, "eventually," if the price is right, the agriculture water will sell, he says. "There are those us who will farm no matter what and others will take the money and run," he says.

   But not now, Carangelo says. He tells farmers. "Why sell now for $4,000 an acre-foot when it gets to the point when Rio Rancho and Albuquerque really need the water, and the price goes to $20,000 an acre-foot?"

   Already, there are signs that value of water is rising. "There are a lot of big water users who have a lot of money" -- commercial and industrial operations -- and can bid up the price of water rights, says Turner.

   He says he's even brokered one recent deal to sell an acre-foot of water for $45,000 in Santa Fe.

Cutting back and conserving?

   Judge Parker, in his recent decision on the silvery minnow, took note of State Engineer Turney's assertion that the farmers in the Middle Rio Grande Valley simply use too much water to grow crops.

   From 1989 to 1999, Parker pointed out, the MRCGD diverted 11 acre-feet to irrigate one acre of land "while 7.2 acre-feet is "sufficient and non-wasteful." Valley farmers hotly contest Turney's view, saying they don't over-water and besides, even if more water is used, it's not wasted, but goes to maintain the bosque or simply flows downstream.

   A spokesman for one of the environmental groups that prevailed in the silvery minnow suit says he thinks Parker's decision will mean agriculture has to come to grips with the water-use question. "We need to craft a balance that saves the river," says John Horning of the Santa Fe-based Forest Guardians. That means more water for fish habitat and "likely less agriculture," he says.

   Farmers might have to consider cutting back on water-intensive crops like alfalfa, Horning suggested.

   But both Herkenhoff and Carangelo say, while that sounds like a good argument, it's not that easy to find a substituted crop.

   Alfalfa "evolved here as a specialty crop simply because water was cheap," Herkenhoff acknowledges. But "the reason we don't have a higher value crop" like lettuce or vegetables," is the lack of labor," he says.

   "We're a narrow valley and it's pretty hard to get legitimate migrant crew here" to harvest a crop, he says. "I would like to see more dairies in the valley," Herkenhoff says.

Making do in the meantime

   If the summer continues to be hot and dry, and if a long-term drought develops, valley farmers face more challenges ahead.

   When water shortages develop, the laws governing water rights priority kick in, meaning those who have "senior" or older rights get first call on river water.

   According to MRGCD information, the six Pueblo tribes that irrigate crops hold the most senior rights on the Rio Grande.

   After that, the 1907 rights have priority, followed by other permitted surface rights and groundwater rights.

   "I don't know what the break point is going to be," says Carangelo. "But if there's a real shortage, the right of prior appropriation will kick in."

   And, in the future, when the city of Albuquerque turns from pumping underground water to using river flows as it plans to do, that could pose a considerable challenge to valley agriculture, he says.

   "The farmers would say we have the first priority," observes Carangelo. "But you can tell farmers to stop watering a crop while you can't tell 10 or 15 blocks of the Northeast Heights of Albuquerque to get up and go home. So there may be a conflict."

   The federal agencies charged with keeping the river healthy for the silvery minnow also must figure out how to get through the dry conditions.

   "Parker clearly says this species is clearly in deep trouble," Horning says. An interim agreement hammered out earlier to maintain river flows for the fish "may have been enough for a wet year, but it's clearly not enough for a dry year," he says.

   But all of those involved in the water discussions also point out there are other possibilities of how to deal with both current and future water shortages. Water can be stored differently on the river system and moved up and down stream at different times to benefit the minnow and also meet irrigation demands.

   Removing salt cedar, as the Bosque del Apache is doing, eliminates a voracious water user. More conservation in the cities is needed, they say.

   Still, in the months ahead, all eyes will be on the skies, hoping for relief from Mother Nature. And on Denver, where a panel of federal judges will decide the future rules of the river.