Page Title

Institutional Context

Eighty-nine percent of the basin's water resources are devoted to irrigation (USGS, 1993). Recognizing the fugitive nature of this river as a human resource and its susceptibility to capture by an upstream diverter at the expense of down stream users, enforceable agreements to apportion and share a limited supply were an historical imperative. After decades of conflict, the US-Mexico Treaty of 1906 and the Rio Grande Interstate Compact of 1938 secured the allocation of the water among the major irrigation sections in the states of Colorado, New Mexico, Texas and Chihuahua.
The institutional arrangements that arose in response to 19th century needs, recognized only the irrigation economy as a purpose for the water supplied by the river. Today's realities, little envisioned by early 20th century negotiators, include vastly larger urban drinking water demands, new industries, new social values and the now unmistakable decline in environmental quality, which resulted from the taking of so much of the river's water.

To satisfy this full range of modern day water demands will require institutional adjustments, small but significant shifts in the allocation of legal rights to use Rio Grande water. A prerequisite to reallocation is the clarification of existing rights (none have been adjudicated above Ft. Quitman). Only after the gordian knot of water ownership is untied may environmental water rights be secured in the marketplace.

Untying the Knot:

Institutional Challenges and Opportunities

"Does the complexity of this [Rio Grande] water system preclude any effective measures for dealing with its problems? No. Do we need to come up with more than temporary solutions to parts of the problem? Obviously. We need to be aware of all the tools available to us....It is conceivable that intentional larger-than-normal flow releases will one day be used as such a tool."
---USGS Circular 1126, 1996.

Earlier, we suggested that an acquisition of water rights might be necessary in order to deploy the above-referenced tool. It will also be necessary to somehow codify and regularize the existing flows, which we have characterized as "Project leakage".
Water rights most often reflect actual wet water and, insofar as they do, bring a measure of security to the division of water among human users. Occasionally, in over-appropriated basins, paper water gets out of synch with water realities: water that exists on paper refuses to appear in streams or canals.

How ironic, then, is the apparent asynchronicity between water rights and wet water that occurs on the Rio Grande at Ft. Quitman. Wet (if salty) water appears at the gauge, which does not exist on paper. This is why it's the "Forgotten River": international treaties don't acknowledge the existence of quantifiable streamflow, the Rio Grande Compact didn't contemplate any and state water law has yet to recognize any streamflow. The Forgotten River exists by accident.

A solution to this riddle must be found before we can begin to protect and manage water for the Forgotten River. Following is a brief analysis of the present institutional "gameboard" on which the public will to protect and restore the Rio Grande will ultimately be tested:

1. Rio Grande Project- Functionally, the existence of 2 maf of water storage should give water managers the ability to provide desirable flow regimes (at least within the constraints imposed by climate). The US Bureau of Reclamation maintains authority over Elephant Butte and Caballo Reservoirs and delivers water entitlements under contracts with the Elephant Butte Irrigation District (EBID) and El Paso County Water Improvement District #1 (EPCWID). EPCWID subcontracts a portion of its water entitlements to the El Paso water utility (El Paso Public Service Board, EPPSB) to supply urban users.

EPPSB's access to EPWCID's surface water entitlement is critical if the city is to reduce its reliance on unsustainable groundwater mining for its water supply. Given EPWCID's manifest, and EBID's expressed, willingness to market their project water, the Rio Grande Project must be considered as the primary, potential source for securing streamflow.

However, initiation of any productive discussion of using Project water for restoration must await settlement (or judgment) in the United States v. EBID, et al. (the so-called Bureau of Reclamation "quiet title" suit, presently remanded for closed mediation in U.S. District Court).
Bureau of Reclamation solicitors have attempted to assert United States ownership of "Project leakage" in the context of EBID return flows (USBR, 1995). Will this position be affirmed in the "quiet title process? If USBR prevails, would the Bureau stake a claim to Ft. Quitman flows? On whose behalf?