DR. WILLIAM M. TURNER
LIONS GATE WATER
BEFORE THE COMMITTEE ON RESOURCES
SUBCOMMITTEE ON WATER AND POWER
UNITED STATES HOUSE OF REPRESENTATIVES
1324 Longworth House Office Building
Washington, D.C. 20515
HEARING ON THE SILVERY MINNOW IMPACT ON
HELD IN BELEN, NEW MEXICO ON SEPTEMBER 6, 2003
Mr. Chairman and Members of the Committee, I appreciate your holding the record open for 10 days to allow Supplemental Written Testimony to be entered into the record. concerning the decision of the U.S. Court of Appeals for the Tenth Circuit in Rio Grande Silvery Minnow v. John W. Keys, and its impacts on New Mexico.
I am Dr. William M. Turner, Trustee of Lions Gate Water which does business in New Mexico. I have been a consulting hydrologist in New Mexico for nearly 35 years and I was the expert witness in The Jicarilla Apache Tribe v. The United States et al.that was cited so frequently with approbation in the Silvery Minnow decision. As the Natural Resource Trustee for the State of New Mexico under Governor Johnson, I was directly responsible for Governor Johnsons creation of the Governors Blue Ribbon Task Force on Water on which I served for six years. I am also the Trustee of the WaterBank Trust, a not-for-profit organization that seeks to find news ways of dealing with water and environmental issues.
First let me apologize for not having been with you at your hearing. I have read all of the printed statements and find no real solutions presented by Committee Members or invited presenters. I agree with comments made by the Committee that we require a reliable, long term water supply that will eliminate the contentious struggle now in progress. The San Juan-Chama Project water is an unreliable source for many reasons.
I agree with Chairman Pombo (R. Ca.) that there is no long-term certainty in our present water supply picture. Our future growth requires a stable and reliable water supply for all users including the environment and economic development. The lack of certainty will discourage investment in New Mexico.
As Natural Resources Trustee for New Mexico, charged with replacing damaged water resources of New Mexico, I hosted an international conference in Albuquerque in cooperation with Sandia National Laboratory on October 29, 2002. The conference explored the use of new tools for allocating limited water resources including game theory, complexity theory, and systems analysis. These technologies have never been integrated. And, with the exception of systems analysis, they have only rarely been used to solve closed-system water allocation problems. These efforts came to an end when Governor Richardson replaced me as the Trustee. Under the WaterBank Trust, these efforts can continue with adequate funding which I estimate at $5 million over a five year period.
The water contretemps now playing itself out in the Rio Grande is has not been caused by the silvery minnow and environmentalists. The blame rests squarely on the shoulders of the U.S. Bureau of Reclamation and the acquiescence of State and other Federal agencies in their mismanagement of the water and it is the silvery minnow they have singled out as the scapegoat. There is no water shortage in New Mexico.
The Four "Cs" of President Bushs Water 2025 Plan, namely, Cooperation, Communication, Collaboration for the Conservation of water are the new buzzwords. The Water 2025 Plan is not going to find any real solutions because the struggle is among multiple hydrohegemons for control the same drops of water no matter how politely they behave. As long as stakeholders continue to think inside the box, so to speak, no new solutions will be found. We must face realty. We are dealing with a finite resource and all of the suggestions to date are zero sum games. That is, there are winners and there are losers. There is really nothing new on the table.
I think we must take our lead from Mark Twain who said that the solution to water problems is more rain. No, I am not advocating cloud seeding. I would rather paraphrase Mark Twain by saying that the solution to our present water problems is conservation and less evaporation. And, if we do not learn the lesson of recent history and read the message now on the wall, we will repeat our errors far in the future.
In the Jicarilla case, Albuquerque proposed to store its San Juan-Chama water in Elephant Butte Reservoir until it was needed; then, it would recover it by bookkeeping exchanges with the Elephant Butte Irrigation District. The trial was in 1979 and I modeled the surface water system of the Rio Grande on an Apple II+ computer including the surface area-volume relationship of Elephant Butte Reservoir. I simulated the various scenarios presented by the government and the City of Albuquerque and I was able to show that by the time Albuquerque recovered its stored water a minimum of 93 percent would have been lost to evaporation.
It is widely recognized by the State Engineer, New Mexico Interstate Stream Commission, U.S. Bureau of Reclamation, U.S. Army Corps of Engineers and water scientists that open reservoir consumptive evaporation in New Mexico from reservoirs containing more than 5,000 acre feet of storage is up to 591,000 acre feet per year. This must be compared to total municipal and industrial usage of 195,000 acre feet per year and total silvery minnow usage of say 20,000 acre feet per year. My calculations using current published data and some of the data that supported the decision in the Jicarilla case suggest that, at reservoir full conditions, evaporation from Cochiti, Elephant Butte and Caballo alone is about 392,000 acre feet annually. Of course, it is less now that these reservoirs are at about 10 percent capacity.
There is no water shortage along the Rio Grande in New Mexico now nor has there ever been and those agencies that have led the public to believe this have done a wonderful job establishing a fiction to cover up their own mismanagement.
The State Engineer has long held that there is no unappropriated water on the Rio Grande in New Mexico. Even the New Mexico Supreme Court, relying on a stipulation of the State Engineer, said as much in State v. Meyers, a 1956 case. However, former State Engineer Tom Turney, though he continued the mantra that there was no unappropriated water sent letters to the BOR and the Middle Rio Grande Conservancy District (MRGCD) on March 21, 2001 requiring them to provide him proof of their beneficial use of water. They have not complied with his request nor can they.
Mr. Turney recognized that both the BOR and the MRGCD are only authorized by the State Engineer to store and convey water to the owners of the water rights. Any applications these agencies have filed for unappropriated water are nul tiel because, under New Mexico law, it is the Applicant that must use the water for a beneficial purpose and these agencies do not use the water. They simply serve as an intermediary in delivering a more reliable supply to the ultimate beneficial users whose rights originated many years prior to the creation of these agencies. The ownership of the water rights belongs to the person placing the water to beneficial use pursuant to N.M. Const. Art. XVI § 3and the opinion of Judge Harl D. Byrd that, to draw a parallel, it is the farmers in the Carlsbad Irrigation District (CID) who own the water rights and not the BOR or the CID. Finally, in 1953, the MRGCD itself, as Appellee in Middle Rio Grande Water Users Assn. V. The Middle Rio Grande Conservancy District, recognized this and the New Mexico Supreme Court agreed.
So, I am in particular agreement with the testimony given by Governor Ortiz of the Pueblo of San Felipe in his opening statement: "Because the United States has seriously over-engineered the Rio Grande with many dams and reservoirs, the natural ecosystem is in crisis and the silvery minnow is on the brink of extinction. At the same time, federal mismanagement of the river and water delivery systems has made it very difficult for the Middle Rio Grande Pueblos to continue our ancient customs and traditions that depend upon our precious water." I would only add that the New Mexico State Engineer and the Interstate Stream Commission as well as the Rio Grande Compact Commissioners are equally as culpable for having stood by for almost 100 years while our precious water just evaporated away.
However, the myth of a water shortage has led to salutatory water conservation programs that continue today in our communities and under the leadership of Anne Watkins in the State Engineers Office and Jim Baca, my successor as Natural Resources Trustee. Trustee.
The shortage of water is a product of antiquated water use and water management technology. It is also the product of government management that precludes the involvement of private enterprise. The U.S. Bureau of Reclamation (BOR) is certainly part of our problem. An agency that was borne in the late 1800s as a department within the U.S. Geological Survey upon the great oxymoronic purpose of wresting control over water in the west to "reclaim" desert land that was never irrigated. The agency leadership has not a new paradigm in view at a time when new paradigms are desperately needed.. This is unfortunate because agency employees are intelligent and dedicated people who, given the chance, could solve our new problems with new concepts and technology.
It is extremely disturbing that after the court overturned the ill conceived plan of Albuquerque to store its San Juan-Chama water in Elephant Butte that no one learned from that decision that the evaporation losses were an egregious waste of our precious water resources. The Jicarilla case should have been an explosive wake up call to water managers in the West. It was not. Institutional inertia was just too much or maybe our backs were not close enough to the wall. For the past six years I had periodically brought the evaporation issue before the Governors Blue Ribbon Task Force on Water but it never caught fire. I think the matter was just to large for them to grasp or grapple with because it involved too many sacred cows and entrenched shibboleths.
In fact, open, man-made reservoirs have been disastrous both to man and nature alike. They allow the unconscionable waste of water and destroy natural habitat. . In 1999, the Edwards Dam on the Kennebec River in Maine was breached. The Four dams on the Snake River in Idaho are under pressure for removal to preserve the wild Snake River Salmon from extinction. In May 2003, Federal Judge James Redden ruled that a government plan for saving the salmon with measures short of dam breachings on the Snake was inadequate. A Bill now in the U.S. Congress (H.R. 1097) sponsored by Jim McDermott (D. WA 7th) with 85 co-sponsors, introduced on March 5, 2003, would give the approval of Congress to breach the dams. Removal or Cochiti Dam was advocated at the 47th Annual New Mexico Water Conference. On July 30, 2003, the KRQE Channel 13 Evening News ran a story on the Rio Grande bosque restoration that briefly mentioned removal of dams in New Mexico.
On June 16, 2003, followed by subsequent amendments and applications ending on September 5, 2003, Lions Gate Water filed its application under N.M. Stat. Ann. § 72-1-1 et seq. for all of the unappropriated and wasted water that evaporates from the surfaces of Cochiti, Elephant Butte, and Caballo Reservoirs. Our proposal will divert the waters of the Rio Grande at points to be determined and to place the water associated with and that gives rise to the evaporation surface and the evaporation into ground-water storage and retrieval projects or to store the water in upstream reservoirs even into Colorado. Cochiti and Elephant Butte reservoirs would serve as sedimentation and temporary storage basins. The ground-water storage and retrieval projects will be carried out either privately or in public private partnerships within the Santa Fe Group aquifer from Espanola to Las Cruces and within the Hueco and Mesilla Bolsons of southern New Mexico, and the Republic of Mexico. The water salvaged will be used for environmental restoration, endangered species preservation, agriculture stabilization, and future municipal and industrial beneficial uses within the Upper and Lower Rio Grande and possibly Mexico. I have long believed that the Rio Grande should be actively managed from its headwaters to the Gulf of Mexico. And, I believe the powerful Powersim model of the Rio Grande Basin, now under development by Sandia National Laboratory, should be used to evaluate water management rules.
Ground-water storage and retrieval projects are not rocket science. The Nabateans used a variant of them 2000 years ago in the Negev desert of Israel. Two years ago by the New Mexico Legislature enacted legislation that allows owners of such projects to maintain ownership of the water harvested. The legislation, however, does not permit private participation. We believe this is both unfortunate and illegal both because both federal and state government in our post 9/11 world lack the funding and because it represents an illegal attempt to protect a public monopoly to the exclusion of private enterprise and the commercialization of the resource. Certainly private enterprise is more innovative and flexible than government institutions in swiftly implementing solutions when government does not erect illegal, administrative, legal, financial, environmental and technical barriers to project implementation.
Our Application does not impair any existing or yet to be adjudicated historical water rights of either Indian or non-Indian water users anywhere. The water for which we are applying has never been used consumptively by man. For the water to evaporate from Elephant Butte and Caballo at all, it was first used by upstream users and then flowed downstream. Prior to construction of Elephant Butte dam historical water use was limited and unreliable in the Lower Rio Grande; however, our Application will provide additional water and stabilize agricultural uncertainty. It will be the only commodity sold to farmers wholesale rather than the retail prices they pay for everything else.
It is our intention that contractees for the water we have applied for will be required to purchase water for the environment in amounts that will be determined by biological opinion. This model is presently used by the Environment Agency in the United Kingdom where the government is struggling to facilitate the free marketing of Abstraction Licences" while enhancing environmental restoration and water quality. Indeed our Application will improve overall water quality by significantly reducing the increased concentration of solutes that results from evaporation.
Our initial applications have already been rejected by the State Engineer after consultation with the highest levels of the Executive and Legislative branches of government. Their reason in their August 25, 2003 letter (a copy of which is appended) states: "In fact, the evaporation loss from Elephant Butte Reservoir is accounted for and charged against accrued credits and/or debits." Such accounting would, in other circles, be called ENRON accounting. Accountants cannot hide the fact that the evaporative losses are "real water" and an egregious loss of our precious water resources which is a sustenance to the environment and mankind.
The rejection and policies that we think the State Engineer will use in furtherance of Executive policy to frustrate our Application will be discriminatory to the rights of the private citizen granted under Article XVI of the New Mexico Constitution and the clear language of State Law and the U.S. Supreme Court decision in Sporhase v.. Nebraska that recognized water as a commercial trade good and an article of interstate commerce. Rather than working with Lions Gate, we believe that State Government will set up a long and protracted legal battle to protect the public water monopoly rather than allowing Lions Gate Water to get on with conserving water and restoring the environment all of which are clearly in the public interest. State water law is already filled with numerous examples of legal barriers to private investment and participation. Some laws violate the Equal Protection Clause of the Constitution by granting rights and privileges to government entities that they deny to private entities. Contumacious behavior by the Executive and quite possible the Legislative Branch of government to implement illegal policy for which they may be held liable is clearly not in the public interest but perpetuates the water problems we now face.
Without permits in place and certainty, Lions Gate Water is, of course, without the ability to raise investment capital to put its projects into place and free markets will not develop, a theme that was touched on by Mr. DAntonio, our State Engineer, and Ms. Grevey-Hillson in their testimony.
For the complete information of the Committee, Lions Gate Water submits herewith a copy of its final Application and amendment dated September 5, 2003. Our Application can be viewed on the Internet (Click here)
It is our purpose in presenting this testimony to seek a workable political, legal, and institutional framework within which Lions Gate Water can operate commercially to conserve the 100s of thousands of acre feet of wasted water as a present and future sustenance to man and nature.
For example, we require legislation that will help us provide long-term, predictable and reliable supplies to the environment and other Rio Grande water users rather than frustrate the lawful objectives of our Application by creating discriminatory barriers and at least allows:
- Private enterprise to pursue solutions to public water supply problems on an equal footing with public institutions as a lawful commercial enterprise which is a beneficial use of water under New Mexico law.
- Active basin management by private enterprise subject to state and federal oversight while respecting free market pricing and the marketing and sale of water as a commodity and trade good.
- Re-negotiation of the U.S. Mexican Treaty for the transboundary storage, salvage, delivery, and sale of water to Mexico to alleviate the water shortages faced by Juarez.
- Storage of Rio Grande Basin water in Colorado as part of overall basin-water management.
I have often marveled that the principles by which we order society and regulate our lives have changed little over the millennia thus I am reminded of the words of Justice McGhee in Middle Rio Grand Water Users Assn who stated "In this connection two legal maxims, worn threadbare by time yet still functioning with as much vigor as ever with the added leaven of age, come to mind. They are: "Salus populi est suprema lex", literally translated meaning -- "The health of the people is the supreme law" but often translated as "The safety of the people is the supreme law;" and "Sic utere tuo ut alienum non laedas," meaning "So use your own as not to injure another's property." which the BOR seems to have neglected these many years.
To conclude, I am sure you will agree that our Application is clearly in the public interest and, together with conservation and best water use practices, is the only large scale, comprehensive solution to our immediate water problems.
Should you wish, I am at your disposal to present testimony on this topic in Washington or elsewhere as the Bureau of Reclamation operates, I believe, some 348 reservoirs elsewhere in the West.
Dr. William M. Turner, Trustee