The impact of full beneficial use of San Juan-Chama project water by the city of Albuquerque on New Mexico's Rio Grande compact obligations

Natural Resources Journal

Volumn 48, Issue 2, 2008, Pages 371-405

  Flanigan, Kevin G ^a   Haas, Amy I ^a  

^a Rio Grande Basin Bureau of the New Mexico Interstate Stream Commission   (Mexico)

Author keywords

[No Author keywords available]

Indexed keywords

DECISION MAKING; PROJECT ASSESSMENT; STRATEGIC APPROACH; WATER MANAGEMENT;

ALBUQUERQUE; NEW MEXICO; NORTH AMERICA; RIO GRANDE [NORTH AMERICA]; TEXAS; UNITED STATES;

CHAMA;

EID: 63349087138     PISSN: 00280739     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (238)

1. Use of the term "the City" includes both the City of Albuquerque and the Albuquerque Bernalillo County Water Utility Authority ("the Authority"), which is a joint agency of the City of Albuquerque and the County of Bernalillo that administers the water and wastewater utility for all of Albuquerque and Bernalillo County. N.M. STAT. § 72-1-10 (Supp. 2008) (codifying S.B. 887, 46th Leg., 1st Sess. (N.M. 2003)).
2. An acre-foot is the volume of water that would cover one acre to a depth of one foot. AM. SOC'Y OF CIVIL ENG'RS, HYDROLOGY HANDBOOK, ASCE MANUALS AND REPORTS ON ENGINEERING PRACTICE No. 28, at 320 (2d ed. 1996).
3. Interview with John Stomp, Water Res. Manager, Albuquerque Bernalillo County Water Util. Auth. (Jan. 16, 2008).
4. See CH2M HILL, CITY OF ALBUQUERQUE WATER RES. MGMT. STRATEGY, EVALUATION OF ALTERNATIVES AND STRATEGY FORMULATION 3 (1997).
5. Id. at 1-2.
6. The exaggeration was due, in large part, to faulty hydrologic assumptions. JOHN W. HAWLEY & C. STEPHEN HAASE, N.M. BUREAU OF MINES & MINERAL RES., HYDROGEOLOGIC FRAMEWORK OF THE NORTHERN ALBUQUERQUE BASIN, OPEN-FILE REPORT 387, at xi (1992);
7. see also CONDÉ R. THORN, DOUGLAS P. MCADA & JOHN MICHAEL KERNODLE, U.S. GEOLOGICAL SURVEY, GEOHYDROLOGIC FRAMEWORK AND HYDROLOGIC CONDITIONS IN THE ALBUQUERQUE BASIN, CENTRAL NEW MEXICO, WATER-RESOURCES INVESTIGATIONS REPORT 93-4149, at 94 (1993).
8. HILL, supra note 4, at 1-4 to 1-8.
9. Id. at 6-7.
10. The terms "depletions" and "consumptive use" refer to the amount of water that is permanently lost from a hydrologic system to the atmosphere due to evaporation and plant transpiration. The hydrologic system pertinent to this paper is the surface water of the middle Rio Grande and interconnected shallow groundwater. The terms "depleted," "consumed," and "consumptively used" are used interchangeably throughout this paper.
11. The middle Rio Grande basin in New Mexico is that portion of the Rio Grande basin between Cochiti Reservoir in north-central New Mexico and the headwaters of Elephant Butte Reservoir in south-central New Mexico.
12. See S.S. PAPADOPULOS & ASSOCIATES, INC., MIDDLE RIO GRANDE WATER SUPPLY STUDY 2 (Aug. 4, 2000) (unpublished consultant's report, prepared for the U.S. Army Corps of Engineers and the New Mexico Interstate Stream Commission).
13. The term "native water" refers to water that originates as precipitation within the Rio Grande Basin.
14. The authors acknowledge the existence of other variables that may impact SJCP water supply and demand, including impacts from climate change, sustained drought, and unprojected growth in the Albuquerque metropolitan area. While these factors ultimately may bear on the analysis and conclusions herein, they are beyond the scope of this discussion.
15. The abbreviation "Project" is used throughout the paper to describe the San JuanChama. Project as authorized by the San Juan-Chama Project Act, Pub. L. No. 87-483, 76 Stat. 96 (1962), whereas the abbreviation "SJCP" refers throughout to San Juan-Chama water.
16. San Juan-Chama Project Act, Pub. L. No. 87-483, § 8, 76 Stat. 96, 97-98 (1962).
17. U.S. DEP'T OF THE INTERIOR, BUREAU OF RECLAMATION, ENVTL. ASSESSMENT: SAN JUAN-CHAMA WATER CONTRACT AMENDMENTS WITH CITY OF SANTA FE, COUNTY OF SANTA FE, COUNTY OF LOS ALAMOS, TOWN OF TAOS, VILLAGE OF TAOS SKI VALLEY, VILLAGE OF LOS LUNAS, AND CITY OF ESPAÑOLA 1 (May 19, 2006) [hereinafter ENVIRONMENTAL ASSESSMENT].
18. U.S. DEP'T OF THE INTERIOR, BUREAU OF RECLAMATION, FINAL ENVTL. IMPACT STATEMENT FOR THE CITY OF ALBUQUERQUE DRINKING WATER PROJECT 1-9 (2004), available at http://www.usbr.gov/uc/albuq/library/eis/ adwp/pdfs/FinalEIS.pdf.
19. ENVIRONMENTAL ASSESSMENT, supra note 15, at 10.
20. San Juan-Chama Project Act, Pub. L. No. 87-483, § 8(a), 76 Stat. 96, 98 (1962). A water year is the twelve-month period from October 1 through September 30.
21. The term "bypass flow" refers to water that is allowed to flow past a diversion structure and remain in the stream channel.
22. See N.M. Office of the State Engineer, Glossary of Water Terms, http://www.ose.state.nm.us/water_info_glossary.html (last visited Sept. 6, 2008).
23. San Juan-Chama Project Act, Pub. L. No. 87-483, §§ 8(b), (f), 76 Stat. 96,98,99 (1962).
24. U.S. DEP'T OF THE INTERIOR, BUREAU OF RECLAMATION, ANNUAL WATER ACCOUNTING REPORT OF THE RIO GRANDE COMPACT COMM'N ENGINEER ADVISERS (1971-2007) (on file with authors).
25. See also infra Section II(C) for discussion of accounting of SJCP water.
26. Id.
27. U.S. DEP'T OF THE INTERIOR. BUREAU OF RECLAMATION, ADDENDUM TO HYDROLOGY REPORT SAN JUAN-CHAMA PROJECT YIELD UPDATE 2 (1989) (on file with authors).
28. L.W. MAYS & Y.K. TUNG, HYDROSYSTEMS ENGINEERING AND MANAGEMENT 272(1992).
29. ENVIRONMENTAL ASSESSMENT, supra note 15, at 2.
30. Id.
31. Id.
32. Id.
33. U.S. DEPT OF THE INTERIOR, BUREAU OF RECLAMATION, UPFER RIO GRANDE BASIN WATER OPERATIONS REVIEW FINAL ENVTL. IMPACT STATEMENT II-5 (2007).
34. Id. at II-10.
35. The term "offset" refers to the replacement of stream depletions by providing substitute water resources. The New Mexico State Engineer generally recognizes three types of offsets: return flow (diverted water which is returned unconsurned to the water body of origin), retired water rights, and leased bulk water acquired from some other source. Interview with staff member, Office of the State Engineer, in N.M. (Apr. 2008).
36. U.S. DEPT OF THE INTERIOR, BUREAU OF RECLAMATION, ACCOUNTING OF WATER SAN JUAN-CHAMA PROJECT COLORADO-NEW MEXICO 4-5 (1963) [hereinafter WATER ACCOUNTING, SAN JUAN-CHAMA PROJRCT].
37. These compacts are the Colorado River Compact, the Upper Colorado River Basin Compact, and the Rio Grande Compact. See discussion infra Section III(A).
38. WATER ACCOUNTING, SAN JUAN-CHAMA PROJECT, supra note 32, at 4 (The cited report provides the framework for the accounting of SJCP water within New Mexico and was developed through the joint efforts of the Rio Grande Compact Commission, the Upper Colorado River Commission, certain agencies of the United States, and the states of Colorado, New Mexico, and Texas, and the various SJCP contractors).
39. Rio Grande Compact, N.M. STAT. § 72-15-23 (1978).
40. ("In the event water from another drainage basin shall be imported into the Rio Grande basin by... New Mexico... the State having the right to the use of such water shall be given proper credit therefore in the application of schedules." N.M. STAT. § 72-15-23 (1978)).
41. For instance, it modified accounting of storage losses and spills of SJCP water stored in Elephant Butte Reservoir. See, e.g., Resolution of the Rio Grande Compact Commission, Mar. 29, 1979.
42. See U.S. DEP'T OF THE INTERIOR, BUREAU OF RECLAMATION, 2006 WATER ACCOUNTING REPORT TO THE RIO GRANDE COMPACT COMM'N ENGINEER ADVISERS (2007) (on file with authors).
43. ENVIRONMENTAL ASSESSMENT, supra note 15, at 2.
44. Pub. L. No. 88-293, 78 Stat. 171 (1964).
45. Agreement for Lease of Water Between the City of Albuquerque and the New Mexico Interstate Stream Commission, signed by Gene Romo, Chief Administrative Officer, and S.E. Reynolds, Secretary Interstate Stream Commission (Feb. 21, 1986) (on file with authors); Memorandum of Understanding between the United States Army Corps of Engineers and the New Mexico Interstate Stream Conunission to Provide for a Sediment Retention Pool in the Sediment Space at Jemez Canyon Reservoir, signed by Steve E. Reynolds, Secretary Interstate Stream Commission, and David E. Peixotto, Lt. Col. U.S. Army District Engineer (Feb. 17, 1986) (on file with authors).
46. U.S. DEP'T OF THE INTERIOR, BUREAU OF RECLAMATION, SUPPLEMENT To THE RIO GRANDE SUPPLEMENTAL WATER PROGRAMMATIC ENVTL. ASSESSMENT AND FINDING OF NO SIGNIFICANT IMPACT 9 (2006).
47. Colorado River Compact, N.M. STAT. § 72-15-5 (1978).
48. Upper Colorado River Basin Compact, ch. 48, 63 Stat. 31 (1949) (codified at N.M. STAT. § 72-15-26. (1978)).
49. Colorado River Compact, N.M. STAT. § 72-15-5 (1978).
50. The "'Colorado River Basin' means all of the drainage area of the Colorado River System and all other territory within the United States of America to which the waters of the Colorado River System shall be beneficially applied." Upper Colorado River Basin Compact, N.M. STAT. § 72-15-26, art. II(b) (1978).
51. The "'Colorado River System' means that portion of the Colorado River and its tributaries within the United States of America." Id. at art. II(a).
52. Colorado River Compact, N.M. STAT. § 72-15-5, art. II(b) (1978).
53. Id. at art. II(f).
54. Id. at art. III.
55. Upper Colorado River Basin Compact, § 72-15-26, art. I(a).
56. Id. at art. III(a).
57. Kent Holsinger, Colorado River Storage Project Act Purposes: Does the Tail Wag the Dog?, 9 U. DENV. WATER L. REV. 73, 78 (2005).
58. Id.
59. Colorado River Storage Project Act, Pub. L. No. 70-485, §§ 1-2, 70 Stat. 105 (codified as amended at 43 U.S.C. § 620 (2000)).
60. Id.
61. San Juan-Chama Project Act, Pub. L. No. 87-483, 76 Stat. 96, 97-98 (1962).
62. Id.
63. Id. § 8.
64. See Contract between the U.S. Dept. of the Interior, Bureau of Reclamation, and the City of Albuquerque, N.M., for Furnishing a Municipal Water Supply, Contract No. 14-06-500-810 dated June 25, 1963, art. 6(b), (amended July 6, 1965) (on file with authors) [hereinafter 1963 Repayment Contract] (in addition to its contract with the City, the Bureau of Reclamation entered into repayment contracts with several Middle Rio Grande water users, most notably the MRGCD in 1963, for supply of New Mexico's share of SJCP water in accordance with the authorizing statutes and the terms of the contracts).
65. Id. at art. 18(j) (The 101,800 acre-feet was the estimated firm yield of the Project in 1963, of which the City originally received 53,200 acre-feet annually under the 1963 Repayment Contract).
66. Id. at art. 2(a).
67. Id. at art. 18(j).
68. Reclamation Project Act of 1939, ch. 418, 53 Stat. 1187, § 9(e). There are two basic types of SJCP contracts, and one contractual authorization associated with the SJCP: (1) "repayment contracts" give contractors permanent use of the water once capital costs are repaid, so long as the contractor is current with annual operation and maintenance fees;
69. Id. Irrigation water receives a partial federal subsidy for capital repayment.
70. Id.;
71. "water services" contracts provide water to the contractor for up to 40 years at rates sufficient to cover annual operations and maintenance costs and initially were for a stated term with renewal options. In 2006, all water services contracts were converted to repayment contracts. ENVIRONMENTAL ASSESSNENT, supra note 15, at 6;
72. and (3) the Jicarilla Apache Tribe Water Settlement Act of 1992 established the contract for the Jicarilla Apache Tribe. This is a federal reserved contract right in perpetuity, for which the Tribe pays capital and operation and maintenance costs only when they actually take water. Contract between the United States of America Dep't of the Interior, Bureau of Reclamation, and the Jicarilla Apache Tribe (Dec. 8, 1992) (on file with authors).
73. Repayment Contract, supra note 59, at arts. 4, 7.
74. Id. at arts. 3, 7, 18(j).
75. "On account of drought or other causes, there may occur at times during any year a shortage in the quantity of water available from the reservoir storage complex for use by the City pursuant to this contract. In no event shall any liability accrue against the United States or any of its officers or employees for any damage, direct or indirect, arising out of any such shortage."
76. Id. at art. 18(b).
77. Id. at art. 18(d).
78. Id.
79. Id.
80. Act of Congress of March 26, 1964, Pub. L. No. 88-293, 78 Stat. 171.
81. This 50,000 acre-feet of SJCP water was taken directly out of Project storage in Heron Reservoir and did not require amendment of any existing Project contracts. See id.
82. Act of Congress of March 26, 1964, Pub. L. No. 88-293, 78 Stat. 171.
83. Repayment Contract, supra note 59, at amend. 1, ¶ 7
84. Id. at 18(j).
85. Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109, 1124 (10th Cir. 2003).
86. Jicarilla Apache Tribe v. United States, 657 F.2d 1126, 1131-1133 (10th Cir. 1981).
87. Id. at 1139-1141.
88. Colorado River Storage Project Act, Pub. L. No. 70-485 (1956) (codified as amended at 43 U.S.C. § 620 (2000)).
89. Jicarilla Apache Tribe, 657 F.2d at 1139.
90. Act of Dec. 29, 1981, Pub. L. No. 97-140, § 5, 95 Stat. 1717.
91. The case was originally filed as Rio Grande Silvery Minnow v. Martinez, No. CIV 99-1320 (D.N.M. filed Nov. 15, 1999). Due to a change in appointment, the case is now titled Rio Grande Silvery Minnow v. Keys. However, the case number remains the same.
92. Final Rule to List the Rio Grande Silvery Minnow as an Endangered Species, 59 Fed. Reg. 36,988 (July 20, 1994).
93. Id.
94. Id.
95. Rio Grande Silvery Minnow v. Keys, CIV 99-1320-JP/KBM. Section 7(a)(2) of the Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000), requires federal agencies to "insure that any action authorized, funded, or carried out by such agency...is not likely to jeopardize the continued existence of any endangered species...." 16 U.S.C. § 1536(a)(2) (2000), and section 9 prohibits the taking of any listed species. A taking is defined as the harassment, harm, pursuit, hunting, shooting, or similar activities, id. § 1532(19), of any listed species.
96. Id. § 1538. To satisfy this obligation, federal agencies consult with the United States Fish and Wildlife Service ("FWS"), which then issues its biological opinion detailing how the proposed action may affect the endangered species and its habitat. If the FWS finds that the action will jeopardize the species, it will offer "reasonable and prudent alternatives" that will not jeopardize the species and terms and conditions that will mitigate otherwise unlawful taking.
97. Id. § 1536(B). Kara Gillon, Environmental Pool for the Rio Grande, 47 NAT. RESOURCES J. 615, 624 n.58 (2007).
98. SUSAN KELLY, SUMMARY OF MINNOW LITIGATION THROUGH JULY 2005, MIDDLE RIO GRANDE ENDANGERED SPECIES COLLABORATIVE PROGRAM WATER ACQUISITION AND MANAGEMENT PLAN, WATER ACQUISITION AND MANAGEMENT SUBCOMMITTEE, Appendix D-1 of Attachment D, at D-17 (Nov. 28, 2005) (on file with authors).
99. BUREAU OF RECLAMATION, SUMMARY OF RIO GRANDE WATER OPERATIONS FOR THE CALENDAR YEAR 2000, at 3 (2001) (on file with authors).
100. Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109,1117-1118 (10th Cir. 2003), vacated as moot and dismissed, 355 F.3d 1215 (10th Cir. 2004).
101. Id. at 1118;
102. see also KELLY, supra note 86, at D-18.
103. Rio Grande Silvery Minnow v. Keys, 2002 U.S. Dist. LEXIS 9246, at *67-70 (D.N.M. Apr. 19, 2002).
104. See Pl.'s Mot. for Emergency Inj. Relief, Rio Grande Silver Minnow v. Keys, CIV 99-1320-JP/KBM (D.N.M. Sept. 4, 2002) (No. 414), available at http://www.nmcourt.fed.us/web/index.htm.
105. See Rio Grande Silvery Minnow v. Keys, 2002 U.S. Dist. LEXIS 9246, at *67-68 (D.N.M. Apr. 19, 2002).
106. See generally Rio Grande Silvery Minnow v. Keys, 333 F.3d 1109, 1117-1118 (10th Cir. 2003), vacated as moot and dismissed, 355 F.3d 1215 (10th Cir. 2004).
107. See KELLY, supra note 86, at D-19;
108. see also Energy and Water Development Appropriations Act of 2004, Pub. L. No. 108-137, § 208(a), 117Stat. 1827 (2003);
109. see also Appeal Br. of Federal Defs.-Appellants at 24, Rio Grande Silvery Minnow v. Keys, Nos. 05-2399, 06-2020, 06-2021 (consolidated) (10th Cir. June 16, 2006).
110. Energy and Water Development Appropriations Act of 2005, Pub. L. No. 108-447, § 205, 118 Stat. 2809, 2949 (2004);
111. Energy and Water Development Appropriations Act of 2006, Pub. L. No. 109-103, § 121 (b), 119 Stat. 2247, 2256 (2005).
112. Appeal Br. of Federal Defs.-Appellants at 13, Rio Grande Silvery Minnow v. Keys, Nos. 05-2399, 06-2020, 06-2021 (10th Cir. June 16, 2006) (consolidated).
113. Rio Grande Silvery Minnow v. Keys, Nos. 05-2399,06-2020,06-2021 (10th Cir. June 16, 2006) (consolidated).
114. Appeal Br. of Federal Defs.-Appellants at 13.
115. Act of May 31, 1939, ch. 155,53 Stat. 785, reprinted in N.M. STAT. § 72-15-23 (1978).
116. Raymond A. Hill, Development of the Rio Grande Compact of 1938, 14 NAT. RESOURCES J. 163, 198 (1974).
117. STEVE E. REYNOLDS, THE RIO GRANDE COMPACT, SYMPOSIUM ON INTERNATIONAL WATER LAW ALONG THE MEXICAN-AMERICAN BORDER 50 (Clark S. Knowlten ed., 1968).
118. Rio Grande Compact, art. III-IV; Res. Adopted by the Rio Grande Compact Commission at the Annual Meeting Held at El Paso, Texas: Changing Gaging Stations and Measurement of Deliveries by New Mexico (Feb. 22-24,1948) [hereinafter 1948 Resolution].
119. Id.
120. Id.
121. See Id.
122. Rio Grande Compact, art. VI.
123. Id.
124. Id.
125. William A. Paddock, The Rio Grande Compact of 1938, 5 U. DENV. WATER L. REV. 1, 42-43 (2001).
126. Id.
127. City of Albuquerque v. Reynolds, 379 P.2d 73, 79 (N.M. 1962).
128. HILL, supra note 4, at 1-2.
129. See sources cited supra note 6 (HAWLEY, supra note 6, at xi-xiv; THORN, supra note 6, at 94).
130. JOHN MICHAEL KERNODLE, DOUGLAS P. MCADA & CONDË R. THORN, SIMULATION OF GROUND-WATER FLOW IN THE ALBUQUERQUE BASIN, CENTRAL NEW MEXICO, 1901-1994, WITH PROJECTIONS TO 2020, U.S. GEOLOGICAL SURVEY WATER-RES. INVESTIGATIONS REPORT 94-4251, 110 (1995) (on file with the Natural Resources Journal).
131. See also BUREAU OF RECLAMATION, U.S. DEP'T OF THE INTERIOR, MIDDLE RIO GRANDE WATER ASSESSMENT FINAL REPORT 2-1 (1997).
132. U.S. DEP'T OF THE INTERIOR, supra note 16, at 1-4.
133. CH2M HILL, ALBUQUERQUE WATER RES. MGMT. STRATEGY, SAN JUAN-CHAMA DIVERSION PROJECT OPTIONS (1995).
134. Id. at 1.
135. HILL, supra note 4, at 6-6 to 6-13.
136. Conjunctive use is the systematic use of both surface water and groundwater to optimize long-term yield. Conjunctive use of the available water resources can increase the efficiency, reliability, and cost-effectiveness of water use. WILLIAM W-G. YEH, GROUNDWATER SYSTEMS, in WATER RESOURCES HANDBOOK, 16-5 n.118 (Larry W. Mays ed., 1996).
137. ALBUQUERQUE BERNALILLO COUNTY WATER UTIL. AUTH., WATER RES. MGMT. STRATEGY 25 (2007).
138. Albuquerque City Council Res. No. R-1997-40 (1997).
139. In re Application by the City of Albuquerque Public Works Department to Divert Surface Water From the Rio Grande Basin of New Mexico, Report and Recommendation of the Hearing Examiner, at Finding No. 2 (State Engineer File No. 4830, July 8, 2004).
140. Id.
141. Id. at Findings Nos. 4-10. Of the 17 individual protests, 10 were withdrawn prior to the administrative hearing before the State Engineer Hearing Examiner.
142. See id. at Findings Nos. 6, 7, 9.
143. See generally id.;
144. see also Protest by John Carangelo, Chairman, et al., to Water Application OSE File No. 4830 (Nov. 26, 2001) (on file with the Natural Resources Journal) ("November 26, 2001 protest letter").
145. See Carangelo, supra note 125, at 2.
146. In re Application No. 4830 for Permit to Divert Surface Water From the Rio Grande, Report and Recommendation of the Hearing Examiner, Order (July 8, 2004) (on file with the Natural Resources Journal). Application No. 4830 was approved with conditions as State Engineer Permit No. 4830 ("permit 4830") (on file with the N.M. Office of the State Engineer, Dist. I Office, Albuquerque, New Mexico).
147. See infra Section V(C) for discussion of Abiquiu Reservoir as the City's primary point of storage.
148. See infra Section VII (The City initially filed Application No. RG-960 et al., with the State Engineer on December 21, 1972, for a permit to divert 95,000 acre-feet per year of groundwater from city wells. The application sought to consolidate the City's vested water rights, acquired rights, and return flow credit, and to increase the amount of its previously permitted diversions from 33,400 acre-feet per year to 95,000 acre-feet per year. The State Engineer approved Permit No. RG-960 et al. [hereinafter Permit RG-960] on January 31, 1973. On May 18, 1978, the State Engineer approved the City's application to increase its annual diversions to 132,000 acre-feet per year. On September 4, 2003, the State Engineer approved the City's request to further increase its permitted diversion from 132,000 acre-feet per year to 155,000 acre-feet per year as follows: up to 132,100 acre-feet of diversion is allowed through year 2015, up to 142,900 acre-feet between years 2016 and 2029 and up to 155,000 acre-feet of groundwater in the year 2030 and thereafter. The City is required to off set all stream depletion effects to the Rio Grande using acquired water rights, SJCP water, or surface return flows to the Rio Grande.).
149. At the end of 2007, the City had reduced its average per capita use to 167 gallons per day, up slightly from the 2006 value of 164 gallons per day. Telephone Interview with Katherine Yuhas, Albuquerque Bernalillo County Water Util. Auth. Water Conservation Officer (Mar. 14, 2008).
150. In re Application by the City of Albuquerque Public Works Department to Divert Surface Water From the Rio Grande Basin of New Mexico, Report and Recommendation of the Hearing Examiner, Conditions of Approval (State Engineer File No. 4830, July 8,2004) (on file with the Natural Resources journal).
151. Carangelo v. D'Antonio, No. CV 2004-05036, filed Aug. 5,2004, available at http://www.runcourts.gov/caselookup/app.
152. Order Granting State Engineer's and Albuquerque Bernalillo County Water Utility's Authority's Mot. for Partial Summ. J. and Denying Appellants' Mot. for Summ. J., No. CV 2004-05036 (April 13,2006), available at http://www.nmcourts.gov/caselookup/app.
153. Docketing Statement, Appeal from the 2nd Jud. Dist. Ct., No. CV 2004-05036, (filed June 6, 2006), available at http:// www.nmcourts.gov/caselookup/app.
154. Interview with John Stomp, Albuquerque Bernalillo County Water Util. Auth., Water Res. Manager (Jan. 16, 2008).
155. See § 7(a)(2) Endangered Species Act of 1973, 16 U.S.C. §§ 1531-1544 (2000), § 1536(a)(2).
156. U.S. DEP'T OF THE INTERIOR, supra note 16, at 1-2 to 1-3.
157. A bladder dam consists of pneumatically operated inflatable rubber bladders which can be raised or lowered as required in response to changing flow conditions and other operational considerations. See ALBUQUERQUE BERNALILLO COUNTY WATER UTILITY AUTHORITY ALBUQUERQUE BERNALILLO COUNTY, DIVERSION DAM, http://www.abcwua.org/content /view/34/27/ (last visited Oct. 23, 2008);
158. see also Enel North America, General Information about the Lawrence Crest Gates, http://enel.it/northamerica/crestgatefaq.asp (last visited Oct. 23, 2008).
159. See supra note 16, at 2-41;
160. See also U.S. FISH AND WILDLIFE SERVICE, BIOLOGICAL OPINION ON THE EFFECTS OF ACTIONS ASSOCIATED WITH THE PROGRAMMATIC BIOLOGICAL ASSESSMENT FOR THE CITY OF ALBUQUERQUE DRINKING WATER PROJECT 6-11 (2004).
161. U.S. DEP'T OF THE INTERIOR, supra note 16, at 2-41.
162. Id. at 2-41 to 2-47.
163. Id. at 2-56.
164. Telephone Interview with Andrew Lieuwen, Water Rights Manager, City of Albuquerque Water Resources Division (Sept. 26, 2007).
165. U.S. DEP'T OF THE INTERIOR, supra note 37.
166. See Flood Control Act of 1948, Pub. L. No. 80-858, § 203;
167. Flood Control Act of 1950, Pub. L. No. 81-516, § 204.
168. Act of Dec. 29, 1981, Pub. L. No. 97-140, § 5(b), 95 Stat. 1717, 1717-1718.
169. Contract between the United States of America and the City of Albuquerque, New Mexico, for Water Storage Space in Abiquiu Reservoir, Contract No. DACW47-86-C-0009, at art. I(b)(1) (Mar. 20,1986) (on file with authors).
170. BUREAU OF RECLAMATION, 2007 WATER ACCOUNTING REPORT TO THE RIO GRANDE COMPACT COMM'N ENGINEER ADVISERS 27 (2007).
171. U.S. DEP'T OF THE INTERIOR, BUREAU OF RECLAMATION, FINDING OF NO SiGNIFICANT IMPACT AND FINAL ENVTL. ASSESSMENT FOR THE CITY OF ALBUQUERQUE, NON-POTABLE WATER RECLAMATION AND REUSE, NORTHEAST HEIGHTS AND SOUTHEAST ALBUQUERQUE ES-1 (2001) (This project is administered by the State Engineer under Permit 4819. Permit 4819 was approved by the State Engineer on October 25, 2001, for the diversion of up to 3,000 acre-feet of SJCP water for irrigation and other consumptive, non-potable uses. OSE permit file information shows that the City diverted and consumed 2,120 acre-feet of its SJCP water via surface permit 4819 in 2007).
172. See id.
173. See id.
174. CH2M HILL, CITY OF ALBUQUERQUE PUB. WORKS DEP'T WATER REs. MGMT. STRATEGY IMPLEMENTATION, HYDROLOGIC EFFECTS OF THE PROPOSED CITY OF ALBUQUERQUE DRINKING WATER PROJECT ON THE RIO GRANDE AND RIO CHAMA SYSTEMS APPENDIX B, TABLE B-4 (2002).
175. Id. (this is in addition to MRGCD's contract with Reclamation for 20,900 acre-feet of SJCP water per year).
176. Id. (this water was used to maintain a sediment control pool in Jemez Canyon Reservoir per Agreement for Lease of Water between the City and the NMISC dated February 21, 1986. The sediment control pool was operated by the U.S. Army Corps of Engineers per the terms of a Memorandum of Understanding between the Corps and the NMISC dated February 17, 1986. Most of this water was consumed by reservoir evaporation). See also infra Section VI(B).
177. CH2M HILL, supra note 152, at tbl. B-4.
178. Letter from Gene Leyendecker, Acting Division Manager, Wastewater Utility Division to William Miller, Interstate Stream Engineer, (on file with authors); Agreement between the City of Albuquerque, New Mexico and the Middle Rio Grande Conservancy District (Mar. 10, 1992) (providing for a minimum of 250 cubic feet per second of flow between central Albuquerque and the Isleta Diversion Dam).
179. Id.
180. Act of Congress dated February 25, 1905, 33 Stat. 814 (authorizing Elephant Butte Reservoir as the primary storage reservoir for the Rio Grande Project.) In 1974, Congress authorized a permanent recreation pool within Elephant Butte consisting of 50,000 acre-feet of SJCP water including up to 6,000 acre-feet per year of SJCP water to replace evaporative losses from the pool for a period of ten years. Act of Oct. 27,1974, Pub. L. No. 93-493, 88 Stat. 1486 (authorizing, enlarging, and repairing various federal reclamation projects and programs, and for other purposes). In 1981, Congress authorized the Secretary of the Interior to enter into contracts for storage of San Juan-Chama water in Elephant Butte Reservoir. Act of Dec. 29, 1981, Pub. L. No. 97-140, 95 Stat. 1717. (The City entered into contract for storage of SJCP water in Elephant Butte Reservoir in 1983, Contract No. 3-CS-53-01510 between the City of Albuquerque and the United States acting through the Dep't of the Interior) (on file with authors).
181. A spill event occurs when the physical storage capacity of a reservoir is exceeded. During a spill event, SJCP water in storage in Elephant Butte Reservoir is accounted as the first water spilled pursuant to a 1985 resolution of the Rio Grande Compact Commission. Rio Grande Compact, arts. I(p), I(q); Rio Grande Compact Commission Res. (1985).
182. Telephone Interview with Tammie Padilla, U.S. Bureau of Reclamation (Sept. 21, 2007).
183. Agreement Between the City of Albuquerque and the Middle Rio Grande Conservancy Dist. Resolving Protest to Application No. 4830 aune 7, 2002) (on file with authors).
184. See BUREAU OF RECLAMATION supra note 148, at 27 (At the end of September 2007, the City had about 168,000 acre-feet of SJCP water in storage in Abiquiu Reservoir on the Rio Chama. The City's 2007 allocation (48,200 acre-feet) remained in storage in Heron Reservoir).
185. Agreed Order Resolving Pl.'s Mot. for Prelim. Inj., Rio Grande Silvery Minnow v. Keys, CIV 99-1320 (D.N.M. Aug. 2, 2000) (Docket No. 117); Supplement to Agreed Order Resolving Pl.'s Mot. for Prelim. Inj., Rio Grande Silvery Minnow v. Keys, CIV 99-1320 (D.N.M. Oct. 5, 2000) (Docket No. 150); Agreement Between the City of Albuquerque and the Middle Rio Grande Conservancy Dist. Resolving Protest to Application No. 4830, at 3-4. (June 7, 2002) (on file with authors).
186. Telephone Interview with Andrew Lieuwen, Water Rights Manager, City of Albuquerque Water Resources Division (Sept. 28,2007).
187. Agreement for Lease of Water Between the City of Albuquerque and the New Mexico Interstate Stream Commission, (Feb. 21, 1986) (on file with authors); Memorandum of Understanding between the United States Army Corps of Engineers and the New Mexico Interstate Stream Commission to Provide for a Sediment Retention Pool in the Sediment Space at Jemez Canyon Reservoir, at C-2. (Feb. 17,1986) (on file with authors).
188. BRIAN C. WILSON & ANTHONY A. LUCERO, WATER USE BY CATEGORIES IN NEW MEXICO COUNTIES AND RIVER BASINS, AND IRRIGATED ACREAGE IN 1995, at 72 (1997). NEW MEXICO STATE ENGINEER OFFICE, TECHNICAL REPORT 49. In irrigation operations, incidental depletions are those that result from conveyance of water from the point of diversion to the farm field consisting of evapotranspiration by phreatophytic vegetation along canals and laterals, evaporation from farm ditches and irrigated fields during surface application, and other minor losses.
189. See S.S. PAPADOPULOS & ASSOCIATES, INC., EVALUATION OF THE MIDDLE RIO GRANDE CONSERVANCY DISTRICT IRRIGATION SYSTEM AND MEASUREMENT PROGRAM, tbl. 4.1 (2002) (unpublished consultant's report prepared for the New Mexico Interstate Stream Commission). Irrigated acreage within MRGCD has been steadily declining since at least the mid-1960s.
190. Letter from Andrew Lieuwen, Water Rights Manager, City of Albuquerque Water Resources Division, to Jess Ward, District Supervisor, N.M. Office of the State Engineer (Apr. 19, 2007) (on file with authors). See also letter from Gary Martinez, Director of the City of Santa Fe Sangre de Cristo Water Division, to Kevin Flanigan, Interstate Stream Commission (Dec. 18, 2007) (on file with the authors). Use of the City's SJCP water pursuant to these ongoing agreements totaled about 440 acre-feet in 2006. Most of these leases are due to expire within the next few years, and the City does not plan to renew them. Telephone Interview with Andrew Lieuwen, Water Rights Manager, City of Albuquerque Water Resources Division (Apr. 2, 2008). Upon expiration, those users must follow state law and acquire or lease rights elsewhere via the State Engineer permitting process if they desire to continue using water. The largest of these leases is between the City and Santa Fe County Ranch Resort (predecessor in interest to Las Campanas de Santa Fe, a large residential subdivision near Santa Fe, New Mexico). This lease provides for up to 1,600 acre-feet of SJCP water for use by Las Campanas, but the maximum amount used to date was 220 acre-feet.
191. San Juan-Chama Project New Mexico Contract Between the United States of America Dep't of the Interior Bureau of Reclamation and the Albuquerque Bernalillo County Water Util. Auth. To Lease the Use of Up to 48,200 Acre-Feet of Stored Water (August 16, 2006) (Amended Oct. 25, 2007) (This agreement, which expires at the end of 2009, allows Reclamation to use up to 48,200 acre-feet of the City's SJCP water to augment the water supply of the middle Rio Grande valley, if necessary. Unused water reverts to the City. Reclamation must first use SJCP water leased from other Project contractors before it may use the City's SJCP water. It is unknown whether Reclamation will use any of the City's water, and what the resulting impact to the City's Drinking Water Project and permit 4830 administration will be).
192. Minutes, Executive Committee, Middle Rio Grande Endangered Species Act Collaborative Program, at 3 (March 20, 2008) (on file with authors).
193. The overall water supply available to the middle Rio Grande valley is estimated to be approximately 1,300,000 acre-feet per year on average. By comparison, the amount of the City's SJCP water delivered to the middle Rio Grande through 1998 was about 20,000 acre-feet per year. See BUREAU OF RECLAMATION supra note 16, at 1-9.
194. See also S.S. PAPADOPULOS & ASSOCIATES, INC., supra note 10, at 59 and fig. 5-25.
195. The authors acknowledge that long-term climate change may impact this analysis, but such an evaluation would be beyond the scope of this discussion.
196. To date, increase in municipal demand has been entirely satisfied with groundwater. This has not greatly impacted the hydrologic system because of the time lag in which groundwater pumping impacts effect flows in the Rio Grande.
197. Permit RG-960 (Jan. 31, 1973) (on file with the N.M. Office of the State Engineer, District I office, Albuquerque, New Mexico).
198. A pre-basin vested groundwater right is one established prior to the State Engineer's declaration of an underground water basin. LINDA G.
199. A pre-1907 surface water right is a senior surface water right. Id.
200. U.S. DEP'T OF THE INTERIOR, supra note 16, at 2-34.
201. See also Internal Memorandum from Michael Gabora, New Mexico Interstate Stream Comm'n, on City of Albuquerque (COA) Well Diversion Impacts on the Rio Grande for 2006 (2007) (on file with authors);
202. Permit RG-960, supra note 174.
203. JESS L. WARD & ANDREW L. LIEUWEN, OFFICE OF THE STATE ENGINEER, WATER RIGHTS DIVISION, REVIEW OF THE CITY ALBUQUERQUE'S APPLICATION FOR PERMIT TO DIVERT SURFACE WATER FROM THE RIO GRANDE FOR MUNICIPAL, INDUSTRIAL AND RELATED PURPOSES FOR THE CITY OF ALBUQUERQUE'S DRINKING WATER PROJECT 7 (2002). The authors recognize that an adjudication of water rights within the Rio Grande basin may result in the determination that some of the rights the City plans to use for offset purposes are junior in priority to downstream senior surface rights. In such case, those junior rights would not be recognized administratively for offset in times of shortage and calls on the river. However, absent an adjudication of the Middle Rio Grande basin, attempting to address the priority of the City's offset rights is highly speculative and beyond the scope of this paper.
204. Id.
205. Permit RG-960, supra note 174.
206. Id.
207. GHASSAN R. MUSHARRAFIEH & LINDA M. LOGAN, OFFICE OF THE STATE ENGINEER, EVALUATION OF HYDROLOGICAL IMPACTS OF THE PROPOSED CITY OF ALBUQUERQUE DRINKING WATER PROJECT APPLICATION 4830, HYDROLOGY BUREAU REPORT TDH-02-01, at 7 (2002).
208. CH2M HILL, supra note 15Z at 2-7.
209. CH2M HILL, 40-YEAR WATER PLAN IN SUPPORT OF APPLICATION TO ADJUST PUMPING LIMIT UNDER STATE ENGINEER PERMIT RG-960 (2001) at fig. 2.
210. Water conservation efforts by the City commenced in 1990 with the adoption of Resolution 103-1990 by the City Council that established a Water Conservation Task Force. In 1995, the City Council passed Resolution 40-1995 that adopted a formal long-range water conservation strategy.
211. ALBUQUERQUE BERNALILLO COUNTYWATER UTIL. DEP'T, MONTHLY REPORT (2007) (on file with authors).
212. Interview with Jess Ward, N.M. Office of the State Engineer District I Supervisor (Oct. 3, 2007).
213. KERNODLE ET AL., supra note 114, at 2.
214. MICHAEL G. McDONALD & ARLEN W. HARBAUGH, A MODULAR TBREE-DIMENSIONAL FINITE DIFFERENCE GROUND-WATER FLOW MODEL, TECHNIQUES OF WATER-RESOURCES INVESTIGATIONS OF THE U.S. GEOLOGICAL SURVEY, Book 6, Chapter A1 (1988).
215. PEGGY BARROLL, OFFICE OF THE STATE ENGINEER TECHNICAL DIVISION UNIT, DOCUMENTATION OF THE ADMINISTRATIVE GROUNDWATER MODEL FOR THE MIDDLE RIO GRANDE BASIN, HYDROLOGY BUREAU REPORT 99-3 (2001).
216. Internal Memorandum, Michael Gabora, supra note 177.
217. Internal Memorandum from Linda M. Logan, New Mexico Office of the State Engineer, on City of Albuquerque Well Diversion Impacts on the Rio Grande for Years 2000 through 2004 (2005) (on file with authors).
218. Telephone Interview with Andrew Lieuwen, Water Rights Manager, City of Albuquerque Water Resources Division (Apr. 24, 2007); s
219. see also supra Section V(A).
220. Id.
221. MIDDLE RIO GRANDE COUNCIL OF GOVERNMENTS, POPULATION PROJECTION TO 2050 FOR STATE PLANNING AND DEVELOPMENT DIST. 3 (2000).
222. Internal Memorandum, supra note 191. The stream depletions shown in Figures land 2 and discussed throughout this section are for an surface water bodies impacted by the City's pumping, including the Rio Grande, the Rio Jemez, and the various riverside and interior drains of the Middle Rio Grande Conservancy District. Impacts on the drains are considered to be the same as impacting the Rio Grande, since the drains discharge to the river. Impacts on the Rio Jemez never exceed one percent of the total surface water impacts for the model period.
223. See generally supra Section V(B).
224. Condition of approval number 8 limits the total mean daily surface water diversion rate to 130 cfs. The amount of native Rio Grande water may not exceed 50 percent of the total amount of water diverted at any time. Condition of approval number 9 requires that an amount of water equivalent to the amount of native Rio Grande water diverted under the permit be simultaneously returned directly to the Rio Grande via the City's wastewater treatment plant. See In re Application by the City of Albuquerque Public Works Department to Divert Surface Water From the Rio Grande Basin of New Mexico, Report and Recommendation of the Hearing Examiner (State Engineer File No. 4830, July 8, 2004) (on file with the Natural Resources Journal).
225. GHASSAN & LOGAN, supra note 182, at 7.
226. BUREAU OF RECLAMATION, supra note 148, at 27 (2008).
227. In re Application by the City of Albuquerque Public Works Department to Divert Surface Water From the Rio Grande Basin of New Mexico, Report and Recommendation of the Hearing Examiner, Conditions of Approval, at No. 3 (State Engineer File No. 4830, July 8, 2004) (on file with the Natural Resources Journal).
228. Id. at No. 4.
229. Id. at No. 5.
230. Id. at No. 6.
231. Id. at Nos. 9 and 14.
232. Id. at No. 16.
233. N.M. STAT. § 72-2-18(A), (E) (2001).
234. N.M. STAT. § 72-2-18(E) (2001).
235. Id. § 72-2-18(H) (2007),
236. Telephone Interview with Office of the State Engineer staff (Apr. 2008).
237. Id.
238. Id.