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2. Rio Grande Interstate Compact- Interstate compacts may be viewed a sort of "limited federalism", whose authority derives from the time of the drafting of the U.S. Constitution. To bind a compact's provisions with the force of law, compacting states (along with the U.S. Congress) must agree to and formally approve certain governing terms. Most interstate stream compacts, such as the Colorado River compacts, can be amended only with legislative approval in the compacting states' capitals and in Washington, DC. By contrast, the Rio Grande compact is unusually flexible, granting the compact commission authority to make "non-substantive changes", by unanimous agreement.
In the expressed view of today's commission, the 1938 Rio Grande Interstate Compact not only equitably apportioned, but entirely divided, the waters of the river among agricultural sections within the upper basin. Under its terms, no party has a responsibility to deliver water to Ft. Quitman (but, neither are the parties obligated to use the entire supply).
The reality is that they do not fully deplete the supply. In short, the system "leaks", about 138 kaf annually, to Ft. Quitman. Answering the question of who controls this leakage is fundamental to the water supply availability to the Forgotten River restoration project. The competing interests of Colorado, New Mexico and Texas are in such precarious state of balance that a number of interesting non-substantive issues, like the Ft. Quitman question, have not been raised by the commission.
3. International Considerations-The 1906 US-Mexico treaty "equitably distributes" the waters of the Rio Grande above Ft. Quitman between the nations: 60 kaf to Mexico (except in extraordinary drought) and the rest to the United States. A subsequent treaty, executed in 1944, sought to further clarify international water allocation issues by reserving tributary discharges to the two nations, according to country of origin. A superficial, non-legal, reading of these treaties concludes that neither treaty contemplated the existence of streamflow past Ft. Quitman and may not explicitly apportion them. As with the compact, this issue has never
existed, diplomatically.
4. State Water Rights Adjudications- As noted above, very few water users have any degree of certainty in title to their water supply. In addition to the federal vs. state "water sovereignty" issue being litigated, the several states' statutes on water rights have permitted an excess of claims to Rio Grande water. Of particular interest to the Forgotten River section is the West Texas Rio Grande water rights adjudication before an administrative law judge (under authority of the Texas Natural Resource Conservation Commission).
This TNRCC adjudication (presently suspended during the "quiet title" suit) is arguably the proper venue for deciding how much water in this stream segment to conserve for downstream uses. Downstream users, including irrigators, federal reservations and environmental restoration groups, should be represented in this proceeding when it resumes.
5. El Paso-Las Cruces Regional Sustainable Water Project- El Paso's geographic position athwart the river means that decisions made in El Paso will have a great deal to say about whether it will be possible to manage water for Ft. Quitman, or even maintain the existing supply.
An unknown, but probably significant, portion of the 138 kaf existing supply actually originates from water mined from the Hueco and Mesilla Bolsons, the underground aquifers that supply over 75% of municipal water supplies at El Paso/Juarez. Wastewater outfalls augment agricultural return flows to comprise the existing Ft. Quitman supply.
The El Paso proposal, which is the subject of an Environmental Impact Study set for completion in the year 2002, reflects an attempt to wean the region off of groundwater mining and onto the Rio Grande as its source of supply. In addition to reducing the contribution of pumped groundwater to the river, wastewater recycling and other water use efficiency measures may be included in the El Paso region's vision of its water supply future. It's ironic that improved efficiency at El Paso, an otherwise laudable goal, could actually compromise the available supply at Ft. Quitman. The involvement of environmentalists, including Southwest Environmental Center and the Sierra Club, in El Paso's planning effort has significance to maintaining water in the Forgotten River segment. If the city is willing to accommodate downstream environmental uses in its plan, it may be possible to maintain, and even regulate, the existing Ft. Quitman flows without harming the region's water supply aspirations.
6. Upstream Management Issues-Water management in the Forgotten River reach cannot be separated from discreet events in the rest of the watershed. The problems facing the Rio Grande above Elephant Butte are eerily similar to the ones we've been examining here. There is an equally compelling need to resolve the Rio Grande water supply issue above Elephant Butte, as there is below it. It is possible that some models for the resolving Forgotten River riddle will emerge from solutions found upstream.
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