A tiny fish cracks New Mexico's water establishment

 

Note: a sidebar article, "A water empire in the desert," accompanies this feature story.

ALBUQUERQUE, N.M. - Sitting in his office on the outskirts of this sprawling desert city, Jeff Whitney remembers a poster that hung at an Arizona ranch where he worked as a teenager. A crotchety old cowboy smirked from the wall and the caption read, "There's a lot about this outfit that they didn't tell me."

A native of Wickenburg, Ariz., a small town about an hour's drive north of Phoenix, and a former Hot Shot firefighter, Whitney has a reputation for knowing his way around the Southwest. As a planner on the Prescott National Forest, he worked with a coalition of ranchers, researchers and agency officials to create a pioneering watershed management program.

"I've lived and worked with fourth-generation Arizona ranchers. I've been in a lot of these people's shoes," says the burly, mustached biologist. "The only way you're really going to be successful is by finding some kind of consensus."

Talk like this earned Whitney the Forest Service Chief's award in 1993. A year later, the same kind of talk landed him at the bargaining table, struggling for compromise in the middle of an epic tug of war over water on the Rio Grande.

In August of 1994, Whitney was transferred to the Albuquerque office of the U.S. Fish and Wildlife Service. His charge was to lead an ambitious restoration effort on the middle stretch of the Rio Grande, from Cochiti Dam west of Santa Fe down through the wide, sloping Middle Valley to the reservoir at Elephant Butte.

Returning the middle Rio Grande, now more plumbing than river, to something of its former greatness would be a mammoth task. The federal Bureau of Reclamation and Army Corps of Engineers use dams to ration the river's flow, and levees, jetties and drains to confine it to a narrow strip of bottomland. The Middle Rio Grande Conservancy District diverts the river into hundreds of miles of irrigation ditches to feed acequias and backyard farms. Whitney's own agency uses the river to water the engineered fields of the Bosque del Apache National Wildlife Refuge, which attracts hundreds of thousands of migratory birds each winter.

River restoration would be further complicated by New Mexico's status as the only Western state without an instream-flow law; if an irrigator or city leaves water in the river, someone else can pull it out. Moreover, none of the water rights on the Rio Grande in New Mexico have been adjudicated, so the conservative approach is to use as much water as you can, to establish a claim.

But by the late 1980s, concern was growing over the decline of the cottonwood forest or "bosque" and native fish that depend on a healthy river. In 1993, researchers released a blueprint for restoration that had the support of scientists, the general public and political leaders. Called the Bosque Biological Management Plan, it outlined Whitney's mission: Convince all the players to work together to give the Rio room to be a river again.

"I knew it was serious," recalls Whitney. "But I thought we had a plan and people were committed."

It didn't take long for Whitney to figure out that there was a lot about this new outfit he hadn't been told.

New Mexico water users had signed onto river restoration when relatively high rainfall was keeping water in the river, and Albuquerque thought it had a nearly endless supply of groundwater (HCN, 12/26/94). But by 1994, Albuquerque, the state's largest city, was eyeing the Rio to satisfy booming growth. People began tripping over each other to get off the restoration boat.

Then, the day before Whitney arrived in Albuquerque, the Fish and Wildlife Service put the three-inch-long Rio Grande silvery minnow on the endangered species list. The minnow, once common throughout the Rio Grande and its tributaries, was now confined to 5 percent of its former habitat - all within the middle Rio Grande. Restoration was no longer voluntary; the hammer of the law now hung over the river.

Over the course of a year, Whitney met with all the water interests. Albuquerque agreed to lease the Bureau of Reclamation up to 30,000 acre-feet of water it had stored in Abiquin Reservoir. This was "non-native" water that was pumped into the Rio Grande from the Colorado River drainage through the San Juan-Chama project. But the city didn't have the ability to use it yet, so it could be left in the river.

It was a Band-Aid, but it put the state's legion of water lawyers at ease, and bought Whitney time to find a long-term solution.

Then one Friday afternoon in April, 1996, he got some very bad news. The Middle Rio Grande Conservancy District had quietly diverted the entire river into its ditches at the San Acacia Diversion Dam outside of Socorro, and minnows were beached.

"We went down to the river Saturday morning," says Whitney, "and discovered a dry river with pools rapidly drying, and dead minnows." When the body count came in, 10,000 minnows were dead, 40 percent of the remaining population.

"It was going to be a long summer," Whitney remembers. "The worst-case scenario had arrived."

Greens force the issue

Whitney tried to regroup. Bosque del Apache wildlife refuge kept water in the river for the first month by giving up 3,000 acre-feet, one quarter of its annual water appropriation. Thunderstorms and dam releases got them through the rest of the summer. "We pieced it together," he says.

Over the next two years, the Bureau of Reclamation leased water for the river - mostly from Albuquerque. The conservancy district pitched in 2,700 acre-feet in 1997, but never took responsibility for killing the minnows.

Meanwhile, Jeff Whitney canvassed for consensus. In the winter of 1996, Whitney and Gary Rowe, a staffer with the Bureau of Reclamation, called the federal agencies, the state, Albuquerque and the conservancy district together. The result was a report known as the "white paper" that laid out a plan to keep water in the river for the minnow.

The guts of the white paper called for federal agencies to buy water rights for river flows. During dry years, Albuquerque would pump groundwater, leaving more in the river for fish and farmers. The conservancy district, in turn, would save water by lining canals and developing more efficient irrigation systems. Upstream reservoirs controlled by the federal government would be used to store water during wet years to boost river flows during dry ones. And the state would begin the long-overdue process of measuring diversions from the river and adjudicating water rights, so that users would have certainty.

The white paper won praise from some conservationists, but the drying of the river the previous spring had galvanized most greens. Already seven of the Rio's native fish species were extirpated or extinct. The minnow was one of nine remaining species, but the environmentalists feared it wouldn't be around for long without more protection. In April of 1997, Forest Guardians and Defenders of Wildlife sued the Interior Department. Fish and Wildlife had put the minnow on the endangered species list in 1994, but missed its 1996 deadline for designating critical habitat.

The lawsuit was aimed at the heart of the issue. Some biologists believed that the only way to protect the minnow was to restore the middle Rio Grande. That would mean keeping water in the river year-round, and allowing it to wash over its banks in spring and meander across its floodplain.

The lawsuit also changed the debate. From that point on, it would be a game of legal strong-arming to force agencies mired in the past to stay at the table.

"Until you force the issue and create a crisis," said John Horning of the Forest Guardians, "we don't deal with the problems."

In October of 1997, Judge John Conway ruled that Interior had violated the Endangered Species Act, but he didn't give the agency a new deadline for critical habitat. Forest Guardians and Defenders appealed, and in December 1998, the 10th Circuit Court of Appeals in Denver ordered Fish and Wildlife to designate habitat by the end of June 1999.

Water users dug in their heels further and in May, Sen. Pete Domenici tried to attach a rider to an emergency spending bill that would have postponed all critical habitat designations until Oct. 1.

Sam Hitt of Forest Guardians and a pack of volunteers took cell phones to natural food stores in Albuquerque and asked shoppers, "Do you want to talk to Pete Domenici?" They tied up his phone lines for two days. Defenders of Wildlife had members send megabytes of e-mail messages to the senator.

"This is not about the minnow. This is about the Rio Grande, the heart of New Mexico," said Hitt. "We're talking about a major ecological catastrophe. The red light on the dashboard is flashing away. People like Domenici want to speed up. We should be hitting the brakes."

Two days after Domenici introduced the rider, he abandoned it.

On June 29, the day before Fish and Wildlife announced its findings on critical habitat, state Water Engineer Tom Turney was anxious. Before the silvery minnow, Turney had exercised near-total control over the river, mainly on behalf of irrigators. Now, new players were coming to the table. "Tomorrow is the magic day," he said. "It's going to be devastating to New Mexico."

No one wants the bill for the minnow

The next morning, Turney's fears came true. Fish and Wildlife designated the entire 163-mile stretch of the middle Rio Grande, from Cochiti to Elephant Butte, as critical minnow habitat. The agency did not specify how much water would be needed, but it did say that to save the minnow, the reach would have to run as a continuous river, not exist as "isolated pools."

Before the week was over, the conservancy district and the state were suing the Fish and Wildlife Service, demanding a retraction of the critical habitat until the agency had studied its economic impacts.

"Fish need water' - that's not enough of an answer," said district biologist Sterling Grogan. "The Rio Grande has been dry as a bone for months at a time since the 1890s. The minnow has developed survival strategies that have allowed it to survive periodic drying of the river channel."

The district estimated that it would take up to 150,000 acre-feet per year to meet Fish and Wildlife's demands. "All of the water users in the middle Rio Grande would be without water in a dry year," said Grogan. "That includes the city of Albuquerque, the pueblos, farmers and the Bosque del Apache National Wildlife Refuge."

Tom Turney predicted that the effort would cost farmers $200 million to $500 million.

"The water buffaloes are scared to death of the consequences of keeping water in this river," said Sam Hitt. "It's totally overblown. They're like gigantic elephants dancing around a little mouse."

Jeff Whitney sounded harried. "They (the state and conservancy district) think it requires a full, bank-to-bank river year-round," he said. "We're talking about just enough water to keep a trickle going at the bottom extent."

He said it would take 50,000 acre-feet in a dry year, one third of the conservancy district's estimate. That water could be found relatively painlessly, he said, by following the recommendations laid out three years earlier in the white paper. The 1938 Rio Grande Compact, he said, required New Mexico to deliver 60-90 percent of the Rio Grande's water to Texas and Mexico each year. Why not release that water to meet the needs of the minnow, and meet both obligations?

Progress might be easier, Whitney added, if everyone at the bargaining table weren't suing each other. "Nobody sees the irony. Nobody sees the psychosis."

But people were still hoping someone else would pick up the tab for the minnow, and all eyes turned to Albuquerque Mayor Jim Baca, an outspoken conservationist, and former head of both the federal Bureau of Land Management and the Middle Rio Grande Conservancy District. It was Baca's San Juan-Chama water that had kept the river wet for three years. If he would agree to keep leasing water, crisis could be put off a little longer.

Baca was in a tight spot. To wean itself from its dwindling groundwater, and prepare for a projected 650,000 people by the year 2050, the city was pouring $180 million into a river water-treatment plant. On Sept. 1, Albuquerque took the offensive. It announced it would stop leasing water and sued Interior, claiming the San Juan-Chama water stored in Heron reservoir, near Tierra Amarilla was the city's savings account for dry years and could not be used for the minnow.

The city said it was trying to force the conservancy district to compromise. "Some people think Albuquerque should be the savior of the river. In fact, we've been the savior for years. We've kept the minnow alive," said Jim Baca, adding that the city has reduced per capita water use by 23 percent in five years. "My premise is, Albuquerque has done its part, where is everybody else? The pueblos, the acequias, the conservancy district need to step up to the plate."

Others said Baca was just kowtowing to thirsty developers, who in 1997 contributed 70-89 percent of the city council's campaign money, according to a local watchdog group, the Petroglyph Monument Protection Coalition. "In Albuquerque, the political power is held by developers," explains Pilar river guide and activist Steve Harris, "and nobody wants to piss in their Post Toasties."

Anyone care to dance?

The legal struggle over the middle Rio Grande could take years, even lifetimes, to play out, but Jeff Whitney and others still have hopes of finding a solution in real time.

Back in April of 1998, a group of conservationists wrote a response to the white paper. The authors included Steve Harris, head of the consensus-minded group Rio Grande Restoration, attorney Laird Lucas with the Land and Water Fund of the Rockies, Sue George, New Mexico representative for Defenders of Wildlife, and University of New Mexico law professor Denise Fort, who chaired the Western Water Policy Review Commission (HCN, 6/22/98).

Their "green paper" echoed the recommendations of the white paper, but it also had a structural component. It proposed moving back levees to allow spring floods to cover the floodplain and removing the Low-Flow Conveyance Channel, a ditch parallel to the river that drains up to two-thirds of its water between San Acacia and Elephant Butte. And just as others want to tear out dams to protect salmon in the Northwest, the paper proposed removing diversion dams on the Rio Grande that block the silvery minnow from migrating upstream.

In August 1998, a few months after the paper was released, the Bureau of Reclamation invited the authors of both the green and white papers to a retreat in Santa Fe. For the first time, a whole spread of conservationists as well as Pueblo and acequia representatives sat at the table with the region's water managers. "It was historic," says Steve Harris.

The group, now called the "Green and White Paper Group," meets once a month, and has had some success. A subset of the group has been trying to hammer out a Habitat Conservation Plan or some other compromise modeled on the Platte or Lower Colorado River agreements (HCN, 2/1/99).

The lawsuits have tested the group's resilience, says Steve Harris, but so far, "everybody's still here. It's slow and painful, but the value is pulling the players together, so we all know the same things. I think everybody's positions are known; God knows, at this point they're practically locked in concrete."

Exactly, says Santa Fe Public Utilities Department Director Mike Hammon. Most of the players have their backs against the wall and refuse to dance.

Hammon is one of the few to step out onto the floor. Like Albuquerque, Santa Fe is fixing to pump San Juan-Chama water - a relatively small 5,600 acre feet each year - out of the Rio Grande. But Hammon has offered to pump more ground water during dry years, and leave some of his imported water in the river.

"If all the cities are doing the same thing, you've got some water to work with," he says. "But the (legal) hammers being held over everybody's heads make people nervous to be first. I'm a small fish, so I can take a step out more easily than an Albuquerque."

Cities can't restore the river without the biggest player on the reach, the conservancy district, which shies away from talk of river restoration. The district has instead proposed trucking minnows around diversion dams to wet spots upstream. "Sometimes it's wise to move the water where the minnows are. Sometimes it's wise to move the minnows where the water is," says District Manager Subhis Shah. "There's no use in looking for the minnows where we know the river is going to dry up."

Talk like this just delays dealing with the real issue, the river, says Jeff Whitney. "It's total denial," he says. "They're hoping against hope that they'll wake up from this bad dream and be able to continue to do things as they've always done."

Good news and bad news

It's late September, and Whitney is moving out of his office, cleaning out filing cabinets and purging his e-mail account. He's on his way to yet another new outfit across town - this time working with an interagency group called the Southwest Initiative, doing region-wide planning. Rumor has it that Whitney was "bumped upstairs' for taking too strong a stance on river restoration. He denies this, saying he's done his part and it's time to move on.

As Whitney leaves, the news on the river is mixed. This fall, Pete Domenici convinced Congress to appropriate $2 million to help fund silvery minnow recovery. In Washington, the Interior Department is watching the Rio Grande more closely than ever, and more money may be on the way.

Late snows and summer rain kept the river wet this year, but they also gave people a false sense of security. "There's enough water in the system, and I'm afraid people are just going to coast," says Whitney. "There's every opportunity to turn things around, but there needs to be a larger will."

The extra water also seems to have washed silvery minnows and their progeny downstream of San Acacia Diversion Dam. A recent survey found that 90 percent of the minnows are now trapped in the section of the river that dried up in 1996. One dry year could wipe out the minnow completely.

The result could be another lawsuit. A coalition of environmental groups represented by the Land and Water Fund is considering filing suit. "We're having these great meetings and talking about long-term solutions," says Sue George with Defenders of Wildlife. "But it's not happening fast enough. We've got to get in there with some litigation and light some fires."

The lawsuit also targets irrigators. The conservancy district, it says, does not have the water rights it claims. The district signed them over to the Bureau of Reclamation in the 1940s, when the federal government bailed out the nearly bankrupt agency. "We're not trying to take any water rights away from anyone. We're saying the federal government owns this water, and has the responsibility to keep some of it in the river," says lead attorney Laird Lucas. "This is the dirty hidden secret in New Mexico water law that nobody wants to talk about."

Ironically, environmentalists and the conservancy district are allies on another legal front. Both are likely to intervene in Albuquerque's lawsuit claiming ownership of San Juan-Chama water in Heron Reservoir. Both groups argue that Interior, not Albuquerque, owns the water in Heron, and is obligated to use it to protect the minnow.

"It's by far the strangest situation I've ever been in. It's out of some of the weirdest science fiction," says Jeff Whitney. "I've taken a very long, hard, focused look at this, and I believe that everyone can get what they require if people stay flexible. We're not on the road to nowhere."

"One thing's for sure," he adds, "2000 is going to be a very exciting year on the Rio Grande."


Greg Hanscom is an HCN associate editor.

You can contact ...
* Jennifer Fowler-Propst with the U.S. Fish and Wildlife Service at 505/346-2525;
* Steve Hansen with the Bureau of Reclamation at 505/248-5349;
* State Engineer Tom Turney at 505/827-6091;
* Sam Hitt with Forest Guardians at 505/988-9126;
* Steve Harris with Rio Grande Restoration at 505/751-1269;
* John Stomp, Albuquerque water engineer at 505/768-3631;
* Subhis Shah with the Middle Rio Grande Conservancy District at 505/247-0235.