Irrespective of the quantity and quality of water available to an area, the physical location or the capacity of the water to serve a population in a physical sense, water can only be utilized efficiently and wisely if the legal and institutional rules in the area allow this to happen. Legal rules for the allocation of water resources in the Western United States and in this region, in particular, have not been intentionally developed in a manner that promotes either efficiency or conservation. While all have recognized the scarcity of the resource, the legal rules for their use do not necessarily reflect this understanding. Any solution aimed at long--term sustainable use of the resource must accommodate existing rules and if they are inadequate to serve the purpose, propose their change.

        The ensuing discussion, 1) sets out the existing legal rules for allocation of the water resource, 2) describes how these rules do or do not allow for development of a long term strategy for sustainable use 3) describes the effectiveness of these rules as they relate to three issues--water resource allocation in general, their impacts on the agricultural community and finally, their impact on the environment. After discussion of these institutions rules in light of these three considerations, each subsection will make some specific but preliminary recommendations for change that may need to be implemented if a sustainable development strategy is to be developed. Finally at the conclusion of this piece, the author will propose an overall model for addressing the legal and institutional issues raised within each specific subsection.
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Mexican Water Treaty of 1906

        This treaty with the country of Mexico commits the United States through the states of Colorado, New Mexico and Texas to annually deliver 60,000 acre feet of water at the border with Mexico at Fort Quitman, Texas for use in Mexico. It is the most powerful commitment on the river and its implementation through the International Boundary and Water Commission forms a vital part of any long-term solution to the problems of water scarcity in the region. It is the product of complicated negotiations between Mexico and the United States over the use of the surface waters of the Rio Grande System. It has a sister treaty, the Mexican Water Treaty of 1944. Collectively they allocate the water resources of the Rio Grande/Rio Bravo between the Nations from El Paso to the Gulf of Mexico.

Water Resource Allocation Implications: The water resource allocation implications of the treaty are obvious. The 1906 treaty commits the first 60,000 acre feet of water from the Rio Grande originating upstream of Mexico to the Nation of Mexico. It provides for a sharing of shortages, but this term is undefined. It also makes no mention of groundwater. Needless to say, the Mexican position by necessity, will be that no upstream pumping of groundwater can affect the quantity of water delivered to it at its main diversion channel. Since, at united States consumption rates, 60,000 acre feet of water could serve the domestic needs of 300,000 persons and at Mexican consumption rates, this 60,000 acre feet could serve even more, this treaty and its protection must be part of any comprehensive plan for water utilization.

Agricultural implications: The implications for agriculture of this treaty may not be as self evident but are surely significant. Upstream of Mexico's delivery point is the Elephant Butte Irrigation District. The quality of the water when it arrives at the delivery point is dramatically affected by the process of irrigation upstream. Irrigation in the Southwest increases the salinity content of water. Depending upon the irrigation practices employed there can be a greater or lesser degree of salinity in the water at the border. When an if the water at the delivery point shifts from agricultural use in Mexico to domestic use, requiring less salinity, this can bring about pressure to reduce upstream additions of salt. This might come about through an equivalent of a requested negotiated minute order, as exists on the Colorado placing a maximum on the salt content at the border between Mexico and the United States on that river system. Likewise, in Mexico itself, the degree to which water is desired for domestic rather than agricultural use will have a direct impact on Mexican water users, should their be a conscious choice to remove water from agriculture and place it in domestic and industrial use to augment dwindling groundwater stocks.

Environmental implications: If there is an overall goal of ensuring the delivery of high quality water at the border with Mexico on an annual basis free of any salt impacts or groundwater pumping impacts, numerous institutional possibilities emerge. The most direct method for doing this would be to construct lined channels to transport the water from Elephant Butte to Mexico or to minimize carriage losses in the river bed itself by using the Elephant Butte Irrigation Ditch system and eliminating losses in that system. This system of course could implicate the environment in numerous ways. First, removing the water from the river system would affect riparian habitat, reduce groundwater recharge and reduce the amount of water in the river to dilute sewage from upstream sewage treatment plants, thereby directly affecting the quality of the water in the overall ecosystem. Likewise, a shift to one hundred percent use of water for domestic and industrial use in Mexico versus agricultural use could dramatically reduce riparian and related habitat in Mexico and increase the potential for point source pollution from municipal and industrial effluent that is placed back into the river near Juárez.

Recommendation: Any long-term plan for utilization of the water resources of the basin must factor in the needs of both nations vis a vis the 60,000 acre feet delivered at Fort Quitman and ensure that as the El Paso region makes more extensive use of its surface water resources that the Mexican share of the Rio Grande is included in such a plan. Joint treatment of surface water through a cooperative effort of the International Boundary and Water Commission and the States of the region may be a good first step in this direction.

The Rio Grande Compact

        This interstate compact between Colorado, New Mexico and Texas allocates the waters of the Rio Grande among these three states. The final delivery point of the waters of this compact is Elephant Butte Reservoir in New Mexico. The obligation to make deliveries to this point and the assurance that surface water is in fact delivered is a vital part of any long-term solution to the problems of water scarcity in the region. The compact has been the subject of litigation and confusion. In the simplest terms it guarantees a set percentage of river flow to Colorado, a percentage to New Mexico and a percentage to Texas. As noted above, its most unusual feature is that the Texas delivery point is located in New Mexico at Elephant Butte Reservoir. Under the compact, when a certain percentage of Rio Grande water passes a measuring gauge North of Santa Fe, this triggers the responsibility on the part of New Mexico to deliver a certain quantity of water at Elephant Butte Reservoir. Critical to this system are two facts. First, the compact gambles, at least on New Mexico's part that there will be low flows. Thus, the lower the flower the higher the percent of water than can be retained in New Mexico. The higher the flow, the greater the percentage of water available for Texas. Second, and more importantly, New Mexico bears the carriage loss between the measuring gauge above Santa Fe and the delivery to Elephant Butte. In the grossest terms, the amount delivered to Elephant Butte on an annual basis is approximately 750,000 acre feet. A final important fact is that the compact itself ends at Elephant Butte. Therefore, the important delivery issues with respect to losses between Elephant Butte and the border do not directly implicate the compact.

Water Resource Allocation Implications: Since the only long-term reliable supply of water for the study area is the Rio Grande Surface system, the Rio Grand Compact and ensuring it is complied with is critical to long term sustainable development. The allocation issues are not themselves that straight forward, when we consider the following. First, the compact contains a system of debit and credits with maxima on the ability of users above Elephant Butte to store water for future use. In addition, if there is a "spill" of Elephant Butte reservoir, then all past debits and credits are eliminated. Thus, how the water is delivered to the reservoir and how the water is released from the reservoir are critical to states above and below Elephant Butte. Certainly upstream states do not want to the reservoir operated to avoid all possibilities of a "spill" event, conversely, downstream users do not want to be at the mercy of unlimited upstream storage as a result of any compact interpretation to this effect or as a result of any compact renegotiation. In summary, if the lower basin intends to rely on the long term supplies of the Rio Grande it must ensure that the Rio Grande Compact is interpreted to allow flexibility of utilization below the reservoir and deliveries that do not allow long-term debits to the lower basin since domestic demand is consistent and stable. While agriculture may be able to curtail demand or find alternative sources of supply, domestic demand does not share this flexibility.

Agricultural Implications: The Two major irrigation districts in New Mexico and Texas below Elephant Butte reservoir are directly dependent for their supply on deliveries under the Rio Grande Compact. Plainly, as urban pressures upstream increase for storage and utilization of surface water, these downstream agricultural users may be affected. Thus, as the City of Albuquerque, for example proposes to use more surface water directly from the Rio Grande for its long term supplies, this will put them in more direct competition with agricultural users in the lower basin. Likewise, proposals by upstream users to engage in extensive recharge and minimize return flows to the river, likewise may cut into the credit years anticipated by the compact and cut into the ability of the lower basin states to count on a full Elephant Butte reservoir to carry them through short years.

Environmental Implications: The manner in which water is delivered to Elephant Butte reservoir under the Rio Grande Compact is affected by various environmental issues that are becoming self-evident. To the degree that the upstream stretch of river is maintained in a constant rate of flow, there will be greater carriage losses within the river and losses to the lower basin. Thus, for example, perfectly rational proposals for releases of water to flood the bosque and to maintain a wet river year round for endangered species could directly impact the lower basin. depending upon the delivery schemes, the affects could be positive or negative, but there will be implications. Expanded proposals for riparian habitat with riverine vegetation for wildlife can effect deliveries. When water is released, whether it flows through the Middle Rio Grande ditch system where carriage loss is less, or whether it flows in the river itself, the extent of evaporation, all of these are relevant issues for both water quantity and quality and are implicated by compact delivery decisions.

Bureau of Reclamation Contracts Apportioning Water
between Irrigation Districts in New Mexico and Texas

        The Rio Grande Compact ends at Elephant Butte Reservoir. The federal rules for allocation of water between the two states through the existing irrigation districts in each state are set out in part through contracts, reclamation law and regulations. The ability to work with these contracts, reclamation law and regulations to utilize water in the optimum manner is a vital part of any long-term solution to the problems of water scarcity in the region. Under section 8 of the Reclamation Act of 1902, the federal agencies such as the Bureau of Reclamation are obligated to comply with state law in acquiring water rights for federal projects. The water in Elephant Butte reservoir made available for agricultural use is acquired under the Reclamation Act, this is to say under state law. The origin of the early priority water rights for this transboundary irrigation project is far from clear. There are reservations of water in the name of the United States for the irrigated lands south of Elephant Butte in New Mexico and Texas. These are followed by extensive contracts for delivery of water and for use of the project works, including the ditches themselves. Because of this unclarity, an adjudication suit has been filed in New Mexico and a comparable suit has been filed in Texas to determine the ownership of the water put to beneficial use by irrigators in the area. The litigation, at least in New Mexico has generated numerous and diverse positions on these issues. For example, the United States has asserted, on behalf of the Bureau of Reclamation that it is the owner of the water rights for the entire project, and therefore, any future use of the water for purposes other than agriculture would require that it act is the water broker and in effect owner of the resource. This in turn would produce revenue for the United States as a whole. The Elephant Butte Irrigation District has taken a similar but not identical position. It asserts it is the holder of legal title to the water for the benefit of its constituents and that it would be the entity that would make water available for no agriculture uses and it in turn would serve as the water broker for the benefit of it agricultural constituents. The individual farmers assert that neither the United States nor the Elephant Butte Irrigation District is the owner. Rather, they argue the water rights belong to them as beneficial users. Since the federal project has been paid out, they argue, they are free to transfer and sell the rights to whomever they choose and achieve the economic benefits from such a sale. If the individual irrigators were successful in this argument this would create a private market for water rights similar to that which exists elsewhere in New Mexico.

        Separate from the issue of the ownership of individual rights to the use of water is the issue of quantities available for use within the two states. By contract, the waters available from Elephant Butte are divided approximately 53 percent for New Mexico and 47 percent to Texas. The method by which this is calculated, the role of carriage loss and groundwater seepage on route to Texas through New Mexico are all critical legal issues that will need to be sorted out if a long-term sustainable plan for the use of surface water is to reach fruition. Suffice it to say that a system that fairly and rationally ensures that the full surface supply is available to all of the users of the region will need to be worked out as among the parties.

Water Resource Allocation Implications: The ownership of the water rights as among the United States, the Irrigation Districts and the individual farmers will be a vital issue for any solution to the water problems in the area. Suffice it to say that the flexibility of fashioning solutions at the regional level among the states would be greatly affected if the United States were declared to be the owner of the water rights. Similarly, whether the rights belong to the individual irrigator or the irrigation districts will be a very significant factor in fashioning any long-term water allocation institution. Likewise, how an adjudication court might interpret reclamation contracts as to issues of sources of supply, will be significant.

Federal Environmental Laws
Regulating Water Allocation among Users

        While most federal environmental laws do not in themselves allocate a portion of water to the environment or to federal agencies, there is no doubt that they play a vital role in regulating the quantity and quality of water in the river. Three major environmental laws will play a part in any long-term solution for providing water to the region on a sustainable basis. These are the Endangered Species Act, the Clean Water Act and the National Environmental Policy Act.

New Mexico, Texas and Mexican Water Law

        The States of New Mexico, Texas and the country of Mexico all have different schemata for allocating the water resources within their territories. An understanding of each of these systems and a transboundary system for coordination of withdrawals that avoids well and surface water interference will be vital to any long-term solution for sustainable use of water within the region.

Operation of Institutional Rules;
Possible Barriers to Efficient Water Allocation

        The Mexican Water treaty of 1906 provides certainty within the region for a fixed quantity of water delivered to Mexico but it also sets a congressionally established ceiling on delivery of water to that region that has an ever expanding population. In times of shortage it may be necessary to develop rules for water exchanges, conjunctive management of surface and groundwater and even storage for Mexico to realistically attend to Mexican needs for water sources on a sustainable basis.

        The Rio Grande Compact has been the subject of litigation before. Under-deliveries in times of shortage have affected water users below Elephant Butte reservoir. A set of key players that are not constrained by the Rio Grande Compact are the 19 Indian pueblos above Elephant Butte, along the Rio Grande and its tributaries. When their water demand is factored into the issue, the potential shortage below the delivery point may be accelerated unless the scope of their federal reserved rights are fully understood and adjusted for.

        The existing federal contracts for water need to be either interpreted or rewritten to provide for more flexibility in the allocation of water from agricultural use to urban use and from surface to groundwater including storage in the aquifer for future use. Likewise, a decision must be made as to whom is the legal owner of these water resources under reclamation law, including the all important Section 8 of the Reclamation Act of l902. Whether the owner is the United States, the irrigation districts or the individual water users is a critical first question that must be answered through negotiations or litigation.

        Because of the federal nature of the surface water allocation scheme, the National Environmental Policy Act will require a detailed evaluation of the environmental impacts of any solution arrived at by the study at the implementation stage. Likewise, the Rio Grande Silvery Minnow, has an historic range including the area in which the proposed water allocations will take place. Examples on the San Juan River, in New Mexico and the Colorado River, illustrate that the goal of the United States Fish and Wildlife Service will be to reclaim the species ability to reproduce throughout its historic range. This will mean that ultimately any solution will impact upon and be measured by this important piece of legislation. Finally, the quantity of water in the Rio Grande directly affects its quality and the ability to comply with the Clean Water Act as it relates to sewage discharges, salinity and other heavy metal contaminates. Any surface water solution will have to address this institutional issue.

        Lastly, if there is to be any viable long-term solution for water use in the area, in addition to a full understanding of the hydrology of the region, as discussed and proposed in other sections of report, it will be critical to understand the legal rules for conjunctive management of the ground and surface waters of the region at the state and national level, in the case of Mexico.

Preliminary Recommendations
Regarding Institutional Issues

        The lead water agencies in the area must immediately begin to establish formal relationships with the International Boundary and Water Commission and the National Water Commission of Mexico or its delegate to develop an optimum use of the surface water delivered at Fort Quitman, Texas.

        The Texas Commissioner to the Rio Grande Compact commission must establish a specific mechanism for interacting with the regional water authorities in Texas, New Mexico and Mexico to ensure their needs are fully understood. This has already begun to happen through the New Mexico-Texas Water Commission. A system must be developed to support this effort financially.

        The environmental experts in the region currently employed by the water allocation authorities in the area must combine their talents and perhaps all collectively select a legal environmental ombudsman to ensure compliance with environmental laws and where necessary lead a lobbying effort with the federal agencies and in Washington to ensure the needs of the area, both environmental and development are met in a balanced way.

        A series of negotiations needs to take place among all stakeholders under the Reclamation contracts to attempt to resolve all ownership issues as to water developed under those contracts to facilitate a fair and equitable method of wisely using the resource over time.

        The existing adjudications of water rights in both states must be seen to completion through creative non-litigation strategies that protect those with bona fide water resources and eliminate speculation in water rights.

        The existing New Mexico-Texas Water Commission should be formally recognized by both states, not as a compact commission but as an entity that shares responsibilities on each side of the border between the states for aiding in the efficient allocation of the resource. Mexican officials should be brought into the process as well as the International Boundary and Water Commission to ensure trans-international boundary protection and planning.

        An effort should be mounted to more fully understand the future demands of the Endangered Species and the Indian Pueblos above Elephant Butte Reservoir.