Anticipating barrage of lawsuits, state’s top water officials ask for more employees

By: - January 20, 2022 6:04 pm

A dry Rio Grande in Albuquerque in September 2021 (Photo by Marisa Demarco / Source NM)

Officials in charge of New Mexico’s water said they need more staff to fend off lawsuits clawing at the state’s water supply, which is limited and shrinking. They expect more court battles to come as human-caused climate change increases average temperatures and aridity in the Southwest.

“Controversies arise about waters that are crossing state boundaries, particularly when you’re in drought,” Rolf Schmidt-Petersen, director of the New Mexico Interstate Stream Commission, told lawmakers yesterday. “And the drought that we’re in today is as deep as any we have been in, in the last 100 years, if not more.”

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The Office of the State Engineer and the Interstate Stream Commission — companion agencies that manage water rights here and represent the state in water disputes — testified in front of the House Appropriations and Finance Committee late Wednesday. Officials described how the challenges of both drought and litigation will further burden understaffed departments that protect New Mexicans’ access to water.

Water officials asked the committee to fund 17 more positions than the LFC’s budget calls for. They’re also seeking $3.5 million more in recurring spending to address the many challenges the agencies face. The governor’s budget adds the new jobs and funds, though at levels lower than the former state engineer requested.

The governor’s office would fund the agencies at $41.2 million — a $1.7 million increase (and 4.3% boost) over the last fiscal year. The Legislative Finance Committee would increase the budget to $40.2 million — about a $700,000 more, a 1.9% increase.

Gov. Michelle Lujan Grisham’s proposal

$41.2 million ($1.7 million more than last year,  +4.3%)

LFC’s proposal

$40.2 million ($700,000 more than last year, +1.9%)

While those might seem like similar amounts, the LFC’s budget for the agencies would rely more on volatile trust funds than the governor’s. The governor’s budget would include $29.9 million from the recurring general fund, and the LFC’s would include just $24.4 million from a more irregular funding source, making it harder for the agencies to plan and prepare.

Despite the agencies’ ask, lawmakers voted in favor of the smaller LFC budget without debate, which Schmidt-Petersen said is typical. But he hopes he’ll have time over the rest of the session to make the argument for more funding, he said.

“We’ll just have a number of opportunities to kind of press our case a little bit more,” he told Source New Mexico. “And we will continue to advocate for the (governor’s) recommendation, particularly the staffing piece of this.”

In mid-November, former State Engineer John D’Antonio announced his resignation, citing the lack of funding and staff for the office, telling the Albuquerque Journal he’d “taken the agency as far as we can” with the given resources.

In interviews at the time, D’Antonio said he’d been instructed to prepare a flat budget despite anticipating huge cost increases. For example, a lawsuit before the United States Supreme Court with Texas over Rio Grande water is expected to ramp up early this year. Not only that, the agency is also beginning to implement a 50-year water plan.

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D’Antonio previously testified before the Legislature that he needed more than 30 new employees, Schmidt-Petersen said.

D’Antonio is now a deputy district engineer with the United States Army Corps of Engineers. He could not be reached for comment.

Schmidt-Petersen told Source New Mexico that he didn’t know if D’Antonio’s public statements at the time of his resignation spurred the governor’s office to propose funding the agencies at higher levels than before.

“I think with the executive recommendation that we have, if we were able to get that recommendation, that would help us, and we’d be able to move forward,” he said.

A budget report from the Legislative Finance Committee shows the agency lost almost 100 employees in the last 14 years; 346 employees dwindled in July 2008 to 252 as of July last year. The agency was budgeted to have up to 316 employees, though it has about a 20% vacancy rate, according to the report. Schmidt-Petersen said the agencies often lose staff to higher-paying consulting firms.

Water disputes between states get expensive as rivers and aquifers run low or dry up. The Office of the State Engineer and the Attorney General’s Office are requesting a combined $10 million to handle such litigation, but the LFC’s proposal comes up short about $2 million, Jeff Primm, the water agencies’ program support director, told lawmakers.

Lawyers representing Texas filed the Rio Grande lawsuit in the Supreme Court against New Mexico and Colorado in 2013, alleging that New Mexico was not delivering the quantity of water agreed on through a compact signed in 1939, well before global warming impacted the water supply.

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New Mexico farmers pump groundwater using wells connected to the river south of Elephant Butte, cutting into the water that’s supposed to reach Texas, attorneys representing Texas claimed in the lawsuit.

Texas called on the Supreme Court to order New Mexico to pay back the debt in cash for water owed over decades — a judgment that could top $1 billion. If New Mexico loses, that might also curtail groundwater pumping and jeopardize some southern New Mexicans’ water rights.

That’s not the only lawsuit the agencies will have to deal with, especially if the drought intensifies, Schmidt-Petersen told the House committee. Drought effects on the Colorado River, for example, he said, could spark another lawsuit. He predicted the state might be spared this year and next year, however.

“All because of two weeks of snow in the Colorado River Basin,” he told legislators. “It went from nothing to 10 feet of snow in some areas.”

But he warned that drought is severe enough along the Colorado River Basin in some places to have affected hydropower generation. Hydropower production at the Glen Canyon Dam, for example, has dropped about 16% since 2000, according to a report by KUNC.

The staff is preparing to work out agreements to avoid litigation there, should it be necessary, but that type of work requires additional staffing, Schmidt-Petersen said.

“We believe the (governor’s) request will help us get prepared,” he said. “But if litigation does start in that basin, significantly more would be expected.”

The Office of the State Engineer / Interstate Stream Commission asked for general fund money for the following:

  • $200,000 for two more staff to roll out the 50-year water plan
  • $605,000 for staff and technical support for negotiating and implementing Native American water rights settlements
  • $321,800 for litigation and settlements, including complying with the inter-state compacts and hydrologic modeling
  • $473,300 for five new employees to reduce the backlog of water rights disputes
  • $309,600 for an employee and support to help with dam safety
  • 83,700 for a staff person to help with acequias and other infrastructure project management
  • $140,000 for surface and groundwater metering and measuring
  • $190,700 to hire two people to support new online posting requirements, acequia loans and capital projects

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Patrick Lohmann
Patrick Lohmann

Patrick Lohmann has been a reporter since 2007, when he wrote stories for $15 apiece at a now-defunct tabloid in Gallup, his hometown. Since then, he's worked at UNM's Daily Lobo, the Albuquerque Journal and the Syracuse Post-Standard.