Rio Grande Water Issues a Morass

Bill Hume’s op-ed column in last Sunday’s Albuquerque Journal regarding water problems in the lower Rio Grande is welcome, but misses the mark by failing to describe the difficulties in that region that need to be addressed before any solutions can be discussed.

For more than 100 years, the federal government, the state engineers of Texas and New Mexico have erected a house of cards glued together by fiction. No one has followed the law. Instead, they have papered history with multitudes of contracts that assume there is water to be had and that they have a legal right to it. They do not.

First, no one is willing to recognize the constitutional doctrine of prior appropriations. The state engineer will not accept declarations of use, which is statutorily authorized and which was requested by Judge Jerald Valentine.

In the Middle Rio Grande we file declarations frequently for pre-1907 water rights, but the state engineer will not allow it in the lower Rio Grande.

So, is the Rio Grande Project built upon surface water that belongs to private parties? No one wants to accept this as a possibility, and the United States and our state engineer are opposing the adjudication of those pre-1906 rights. The fact is that the Bureau of Reclamation mapped about 31,000 acre of irrigated land in 1903.

Those with vested senior water rights have private property rights that entitle them to delivery of their full supply of surface water prior to the delivery of any right junior to theirs.

The U.S. and the state and other junior claimants have a responsibility to protect and deliver the water that is due, constitutionally and statutorily, to those with pre-1906 vested water rights. Neither the United States, the state nor other junior claimants can establish a junior right (project, storage or use right) that would impair these senior vested water rights. No one could subjugate these water rights without lawful purchase with conveyance or without appropriate condemnation with compensation proceeding.

That has not occurred. Therefore, these water rights are senior, private, separate, property rights that cannot be impaired and are due a full delivery annually — and if curtailment must be done, it must first be done at the expense of junior rights (which would likely include Rio Grande Project rights if any actually exist).

Therefore, in quantifying the source or the amount of any U.S. rights, which have been designated under Stream System Issue 104, one cannot include pre-existing rights because the U.S. has no right to impair those rights in any way and they instead are bound by the Act of 1866 and the Reclamation Act of 1902 to protect those water rights of those private owners.

Taking any action administratively or judicially that impairs those senior water rights, regardless of priority, results in a diminution of their value; and, therefore, may be an inverse condemnation or a takings in violation of the Fifth Amendment.

It did appear that there was an acknowledgment brewing that this was an issue (qualifying that pre-existing rights may exist and be separate; as well as quantifying project rights) that needed to be addressed and that the issues (pre-existing rights and project claims to all of the then unappropriated water) were so intertwined that it made sense to address these issues as a stream system issue.

Finally, as the state engineer now admits in Turner v. Bransford, there is no Permit 8 issued to the U.S. for the Rio Grande Project. In fact, Application No. 8 is a forgery, it is totally incomplete, and is unsigned by any representative of the United States. Unlike Application No. 4, which was approved by Territorial Engineer David M. White, Application No. 8 was never considered for approval according to State Engineer Herbert Yeo in a March 23, 1927 letter.

Under the Reclamation Act of 1902, four attorneys general opinions and Arizona v. California, 373 U.S. 546 (1963), the U.S. must comply with all of the steps necessary to store, divert, capture and appropriate water, which it has not.

Until we have agreement regarding the aforesaid points there can be no meaningful discussions as Bill Hume recommends. Just spinning more wind into the next 100 years.