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Show Western Elesoorces ; WRAP-UP El Paso-N.AA. water battle By Helens C. Monberg In the days of the early West, two of greatest crimes conceivable were theft of another's horse and the theft his water. Priorities have changed nsiderably during the last century in ,ard to the horses, but not in respect water. "--Albuquerque Journal, o-si A'ashington-The U.S. Supreme Court re is certain to get, in due course, the ttest water case in the West involving effort by the City of El Paso in West xas to tap the underground water sources of Southeastern New Mexico, rhat is, if El Paso can get the case ard on its merits. New Mexico State igineer S, E. (Steve) Reynolds and e other New Mexico defendants, all blic officials, have attempted to get e case thrown out on procedural ounds since El Paso filed the suit in U.S. District Court in Albuquerque, "m., on Sept. 5, 1980. M issue is a statute passed by the w Mexico legislature that prohibits, th minor exceptions, the transport of derground water from New Mexico ; use in another state. EMBARGO OR RAID? El Paso regards the statute as a iter embargo against a neighboring ite and its citizens, hence as un-nstitutional. un-nstitutional. S'ew Mexico regards the suit filed by city of El Paso and its Public Ser-:e Ser-:e Board as an attempt by El Paso to aid" New Mexico's ground water, clings are running high over the suit i Southeastern New Mexico. The .ephant Butte Irrigation District of m Mexico has been granted the right intervene, and the city of Las Cruces, .M., is also seeking to intervene, both ' defendants. Both fear the loss of jundwater in their area to El Paso, he town of Anthony northwest of El so has been permitted to interview r a plaintiff in the case to test the con-jtutionality con-jtutionality of the New Mexico "em-rgo" "em-rgo" statute. Both Texas com-jnities com-jnities feel that their future growth .11 be stunted if they cannot tap the "arby groundwater supplies in New Jstico. They have their eye on two nearby jrces, the Mesilla Bolson, lying west "i north of El Paso across the state in Do'na"Xna County, N. M., and the rttvaid., , extension of-,, the ,, Hueco, )son lying north of El Paso across the ..te line in New Mexico. Bolsons are .fined as extensive shallow ierground basins underlain by deep "iimentary deposits, hence are J.5able of holding large quantities of ierground water. CI Paso and Reynolds see the case in jy different terms, lengthly phone interviews with Reynolds and rrJi Ray Pearson, chairman of the El J.so Public Service Board by Western sources Wrap-Up (WRW) on July 7 pealed. Pearson is one of the plaints plain-ts in the case, a prominent El Paso orney who recently ran for mayor, close ties to former Gov. John B. .jinally, Jr., of Texas. Connally's ruston law firm, Vinson and Elkins, is presenting El Paso in the law suit. ONSTTrUTIONAUTY ONLY ISSUE 'El Paso is the third fastest growing y in this country," Pearson told tW. "We have to do long-term plann-;for plann-;for the city's water needs. We would , "ticularly like ' to develop ground-liter ground-liter from the Mesilla Bolson, which is 'gely unused at the present time, ere was no point in trying to jotiate with New Mexico because of i water embargo statute. So we felt t we had to test the constitutionality Jie law," Pearson stated, 'he New Mexico statute which Pear-'t Pear-'t et al are challenging provides, in st-'t: "No person shall withdraw water Dl m any underground source in New ifcxico for use in any other state by filing a well in New Mexico and Unsporting the water outside the state by drilling a well outside the boun-r boun-r .ries of New Mexico and pumping vfter from under lands lying within the aiiindaries of New Mexico." eWe are challenging the New Mexico iwtute basically on two grounds. We 1 it imposes an undue burden on instate in-state commerce, and that it denies t( plaintiffs who are citizens of Texas $ same privileges and immunities jyided to the citizens of New Mex-K" Mex-K" Pearson told WRW. The com-pint com-pint filed by El Paso on Sept. 5, 1980, ,jrged the statute is in violation of Arty Ar-ty les I and IV of the U.S. Constitution i the 14th amendment to the U.S. . nstitution. tis,. jl Paso's complaint charged that the j. Mexico statute "discriminates ainst the city of El Paso and its izens who need water available in w Mexico for municipal and in-strial in-strial purposes." 'earson stressed to WRW that "we ' 1 not asking New Mexico to give us ything. We'll pay for the water thru market place. We will comply with Nations that would be imposed on r water use. As a practical matter, s Cruces and El Paso are part of the silla Valley, and we would propose cooperate with Las Cruces in "eloping the Mesilla Bolson," he d- He claimed such a cooperative iter-development venture would benefit not only El Paso, but also Las Cruces and southeastern Nex Mexico, as well as El Paso's sister city of Juarez south of the Rio Grande in Mexico. Pearson acknowledged that "the climate is not the best" for this type of law suit, with the U.S. Supreme Court generally making pro-states rights rulings rul-ings in the court term that just ended. "But we aren't going to quit. We are making plans to continue our case in court up to the Supreme Court. We have the support of the community, and the board is not without resources to press out case," Pearson told WRW. El Paso is willing to wait several years to get a final decision, he claimed. ATTACK ON WESTERN WATER LAW, COMPACTS-REYNOLDS In taking on Reynolds as New Mexico state engineer, Jeff Bingham as New Mexico attorney general, and Lalo Garza Gar-za as district attorney for Dona Ana County, N. M., El Paso and its Public Service Board have their work cut out for them. Particularly with Reynolds. The tall rangy Reynolds has been state engineer for 26 years, and in water circles he is widely regarded as the best state engineer in the country. Pearson told WRW he regarded Reynolds as a "man of the highest character, a fine public servant, a just, fair and honest man." Reynolds has operated a two-way defense. On the one hand, he has told anyone willing to listen that the El Paso law suit is an attack on Western water law and interstate compacts. With his wide circle of friends and with the respect that he has among his colleagues col-leagues thruout the West, Reynolds has the teeth of other Western state engineers on edge. Reynolds told WRW in a lengthy telephone conversation on July 7 several Western states had talked to him about intervening in the case. He declined to name them, and none has sought to intervene to date. The Wall Street Journal, in a lengthy article about Reynolds on May 1, 1980, noted, "If rapid development threatens supplies (of water) in a given area (of New Mexico), he simply decrees the existence ex-istence of a water basin, and by the act brings all of its waters under his control." con-trol." That's exactly what he did in the wake of the El Paso suit. Reynolds explained in a speech at Las Cruces on Dec. 4. 1980, "Until El Paso's suit was filed, the potential pressure on the( underground water resources in Southeastern New Mexico) Mex-ico) seemed to us not to justify undertaking under-taking the administrative work load that would arise out of the declaration of those basins. Because of the enormous enor-mous amount of water El Paso is seeking, seek-ing, and because of the concern that the notoriety of the El Paso suit might lead to a surge of speculative drilling in the area, on Sept. 11, 1980 (six days after El Paso filed its suit), I declared the Lower Rio Grande Underground Water Basin along the Rio Grande on the west side of the Franklin Mountains with its southern boundary at the New Mexico state line. On Sept. 12, the very next day, El Paso filed 266 applications seeking seek-ing to appropriate 26,000 acre-feet per year from the Lower Rio Grande Underground Basin. It seems clear that El Paso correctly assessed my reaction to the litigation; you can't prepare 266 applications in a few minutes. "On Sept. 12, I declared the Hueco Underground Water Basin along the east side of the Franklin Mountains, and on Sept. 18, El Paso filed 60 applications applica-tions to appropriate 50,000 acre-feet per year from that Basin," Reynolds told an audience at New Mexico State University. Reynolds on April 21 of this year, following a pre-hearing conference, denied all of the El Paso applications. He stated in an opinion issued from his Santa Fe office, "The State Engineer has concluded that the use of New Mexico's Mex-ico's public waters in another state, as proposed by El Paso's applications, would constitute a violation of the New Mexico Constitution... The New Mexico " Constitution provides that 'beneficial use shall be the basis, the measure and the limit of the right to the use of water'. ..Because the state cannot control con-trol the nature and manner of use outside out-side its boundaries, this provision must be construed to prohibit use of the public water outside the state's boundaries." boun-daries." Pearson told WRW El Paso has ap- pealed Reynold's April 21 decision, "and it is now on administrative appeal before the State Engineer's office in Santa Fe." Reynolds told WRW, "I have never let anyone outside the state have water." RAMIFICATIONS OF SUIT Reynolds minces no words on the ramifications of the suit. If El Paso won it and got to tap New Mexico's underground water in the Mesilla and Hueco Bolsons, "it would wipe out the Elephant Butte Irrigation District," Reynolds told WRW on July 7. The reason is that in the lower Rio Grande Basin in New Mexio, the surface and ground waters are so hydrologically related as to be a single source, according accor-ding to Reynolds. So the ground water withdrawals "ultimately would be fully reflected in stream flow. The reduction in surface flow would affect the supply available for the Elephant Butte Irrigation District, for the Kl Paso Water Improvement Im-provement District No. 1 and for the United Stales delivery to Mexico under out 1906 Kio Grande convention obligation obliga-tion to Mexico. The 295,000 acre-feet that El Paso proposes to take is roughly 100,000 acre-feet acre-feet more than the annual beneficial consumptive use made within the Elephant Butte Irrigation District in New Mexico," he noted. It would also undermine interstate compacts and other methods which have been used for equitable apportionments appor-tionments of water among the states, such as by U.S. Supreme Court decree or Acts of Congress, Reynolds maintained. main-tained. "In effect, the beneficial consumptive con-sumptive use of the interstate waters is equitably apportioned between and among the affected states perpetuity. The use of the equitable share of each state is governed by the law of the state," he said at his Las Cruces lecture. lec-ture. "The Rio Grande Compact implicity limits New Mexico's and Colorado's use of groundwater from tributary aquifers in the Rio Grande Basin," he noted. "Were it possible for the owners of rights to the use of public waters in one state to sell that right for use in another state's soveregnty would be vitiated," and the compacts "would be without meaning." Reynolds maintained. This, in turn, would undermine the entire system of Western water law that has developed in this country, he claimed. It would also open the way for coal slurry pipelines, Reynolds told WRW. "I understand that John Connally's law firm has a lot of clients interested in building coal slurry pipelines. The outcome out-come of the El Paso case will be important impor-tant in determining how this issue is settled-and the role of the states regarding regar-ding coal slurry," Reynolds said. |