The New Mexico attorney general's fight with the federal government over distribution of water from Elephant Butte — the state's largest reservoir — promises to be an expensive battle, as water cases usually are.

A lawsuit filed Aug. 8 in federal district court will be paid for initially by a $1.5 million state legislative appropriation. New Mexico Attorney General Gary King thinks Texas is illegally taking millions of gallons of New Mexico's Rio Grande water under a 2008 agreement between the U.S. Bureau of Reclamation and irrigators in Southern New Mexico and El Paso. The agreement dictates how water will be accounted for and released from Elephant Butte.

The attorney general filed the complaint in federal district court against the Department of Interior and the Bureau of Reclamation, seeking to void the deal. King argues that the bureau failed to analyze the agreement's environmental impacts and violated an interstate stream compact and state water law with changes in the reservoir's operating agreement.

"We think the federal government had an obligation to make sure the agreement treated (irrigators in) both districts fairly," Assistant Attorney General Stephen Farris said. "It doesn't. It heavily favors Texas."

"Ill advised" is what Gary Esslinger, longtime manager of the Elephant Butte Irrigation District, and Phil King, associate professor of civil engineering at New Mexico State University and a consultant to the district, both call the lawsuit. Phil King is no relation to Gary King.

Esslinger also called the lawsuit "a waste of money."

An accounting mess

A lot of the Elephant Butte fight comes down to accounting — how the water in Elephant Butte is tallied up each year and how it is divided up and delivered to Southern New Mexico farmers and El Paso irrigators.

Farris said that under the new agreement, the Bureau of Reclamation is accounting for water flowing into Elephant Butte in a way that costs New Mexico farmers millions of gallons of water a year.

Esslinger and Phil King say that's not true. They contend each irrigation district is allowed to carry over unused Rio Grande Project water from year to year under the new agreement, something that wasn't allowed before. They claim the state is counting those gallons twice, inflating the actual amount of water in the Rio Grande Project system.

Phil King agrees the agreement is good for El Paso irrigators. They rarely use up all their water allotted by the Bureau of Reclamation and the Rio Grande Compact Commission each year, so they have more to carry over than New Mexico's irrigators.

This legal spat is made worse by the drought that has plagued water managers and irrigators up and down the Rio Grande this year. "This is the worst drought on record unless maybe you go back to the early 1950s where the lake was even lower than it is now," Esslinger said of the Southern New Mexico reservoir. "It was 10,000 to 20,000 acre-feet. It has 200,000 acre-feet right now." An acre-foot is more than 300,000 gallons of water.

"The writing is on the wall," Esslinger said. "If we don't get monsoons or snow, next year will be worse."

Elephant Butte Irrigation District farmers in Southern New Mexico received little water out of the reservoir this year, not enough to get their crops halfway through the growing season. This year, only 52,000 acre-feet of water was available for district farmers to irrigate. In the 1980s, they regularly received 300,000 to 400,000 acre-feet of water.

Farmers in the district had to pump their wells to keep their crops and orchards alive this summer. Meanwhile, a lot of water was flowing down the river to El Paso farmers.

Esslinger said it was water Texas was entitled to under the agreement, which was reached by a consortium of 15 farmers from both Elephant Butte Irrigation District and El Paso.

The attorney general, however, believe New Mexico farmers and the state are getting ripped off.

Back in court

The Bureau of Reclamation, El Paso and Elephant Butte Irrigation District ended up in two federal courts a decade ago fighting about fair water accounting out of Elephant Butte. Observers say it was headed for the U.S. Supreme Court. The state of New Mexico refused to intervene. "From the state's perspective that was an invitation to jump off a cliff," Farris said, noting the state would have had to waive sovereign immunity.

Farmers from the two districts finally hashed out an agreement. Farris said the state was happy the two had stopped fighting, but they were wary of the agreement. Now, three years later, "We're convinced it is not good," Farris said.

State Engineer John D'Antonio sent a letter in March 2010 to Mike Connor, Bureau of Reclamation commissioner and former technical staffer for U.S. Sen. Jeff Bingaman, D-N.M., expressing his concerns over the agreement. His first concern: "The effects of Texas groundwater pumping on the (Rio Grande) Project are not properly calculated and offset. Consequently, EBID pays for reductions in the Project's efficiency ..."

Farris said the state spent the last year meeting with the Bureau of Reclamation to try and negotiate changes to the agreement. When that fell apart, the state sued.

The final straw, Farris said, happened in July. The state claims the Bureau of Reclamation took 65,000 acre-feet of New Mexico's compact credit water and made it available to farmers. "They didn't tell us and didn't ask us. This they can't do. Only the Rio Grande Compact Commission can change the credit accounting sheets," Farris said. "It would be like having $165,000 in a bank account and the banker taking $65,000 and putting it in another person's account without saying anything about it."

Phil King said the Bureau of Reclamation was accounting for water that had evaporated during the prior five months.

Farris said with the 2008 Elephant Butte operating agreement, Texas got what it wanted. "Why would Texas sue? They got more water out of this operating agreement than they ever would have out of suing."

Esslinger disagrees strongly. "What we tried to do with the operating agreement is try to keep this out of the Supreme Court. Now that the attorney general has sued, this will probably end up there. Here we go again, fighting a fight that could be worked out in other ways."

Contact Staci Matlock at 986-3055 or smatlock@sfnewmexican.com.


ELEPHANT BUTTE RESERVOIR

Annual water allocations according to the New Mexico State Engineer:

Without 2008 operating agreement

EBID irrigators: 172,500 acre-feet

El Paso No. 1 irrigators: 130,200 acre-feet

Mexico: 18,500 acre-feet

With the 2008 operating agreement

EBID irrigators: 48,800 acre-feet

El Paso No. 1 irrigators: 246,700 acre-feet*

Mexico: 18,500 acre-feet

*Elephant Butte Irrigation District says the state is counting more than 150,000 acre-feet of El Paso carry-over water from prior years incorrectly.