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Interstate Compact Litigation Update: Special Master’s First Interim Report Ordered to be Filed Recommending U.S. Supreme Court Deny New Mexico’s Motion to Dismiss

On March 20, 2017, the First Interim Report of Special Master Gregory Grimsal was ordered to be filed in Texas v. New Mexico and Colorado, U.S. Sup. Ct. No. 220141 Orig. First Interim Report of the Special Master, Texas v. New Mexico and Colorado, No. 141 Original (February 9, 2017), available at:

(last visited March 24, 2017). The 351 page Report recommends that the United States Supreme Court deny New Mexico’s Motion to Dismiss. The Special Master also denied the motions to intervene filed by Elephant Butte Irrigation District (EBID) and El Paso County Water Improvement District No. 1 (EBCWID). The parties have 45 days to file exceptions to the Report with supporting briefs. [Texas v. New Mexico and Colorado, U.S. Sup. Ct. No. 220141 Orig.]

The Rio Grande Compact divides all of the waters of the Rio Grande, from its headwaters down to Fort Quitman, between Colorado, New Mexico, and Texas, except for the annual delivery of 60,000 acre-feet guaranteed to Mexico under a 1906 Treaty. A sticking point in the drafting of the Compact was where to deliver Texas’ water. There were no good locations for storage reservoirs across the border in Texas, therefore, the decision was made to build a reservoir 50 miles upstream in New Mexico – Elephant Butte Reservoir. This decision meant that both Texas users in EPCWID and New Mexico users in EBID draw their water from Elephant Butte Reservoir. A complexity was created by the fact numerous groundwater wells were drilled between the accounting point at Elephant Butte Reservoir and the New Mexico—Texas border. See generally, City of El Paso v. Reynolds, 563 F.Supp. 379 (D. N.M. 1983).

Special Master Grimsal concludes in his Initial Report that “the purpose and history of the 1938 Compact confirm the reading that New Mexico is prohibited from recapturing water it has delivered to the Rio Grande Project after Project water is released from Elephant Butte Reservoir. Initial Report at 203. Hydrologic uncertainties coupled with economic and environmental uncertainties mixed with the certainty of increasing demand do not always make for successful solutions when it comes to the interstate compacts of the Southwest. Fortunately, however, the Supreme Court has been encouraging states to solve their interstate resource issues politically and not in the Supreme Court. And, the high court has deferred to choices made between and among states. Recognizing that localized negotiations and collaborative efforts are today’s forums of choice.

On February 14, 2017, Special Master Ralph I. Lancaster, Jr. filed his Special Master’s Report in the United States Supreme Court case of Florida v. Georgia, No. 142, Original. In his Report, he recommended dismissal of Florida’s equitable apportionment claim against Georgia.

Report of the Special Master, State of Florida v. State of Georgia, No. 142, Original (February 14, 2017), available at:,%20FL%20v%20GA%20No.%20142%20Orig.%20(W6008636x7AC2E).PDF (last visited March 24, 2017). Florida had contended that excessive diversions in Georgia by Atlanta and by farmers on the Flint River were causing damage to Florida. Even though he noted the excess diversions by wells on the Flint River in Georgia, he found that there was insufficient proof of damage to sustain Florida’s Complaint).

Having concluded that New Mexico’s threshold arguments in favor of dismissing this compact enforcement suit are not persuasive, the parties may be in a better stance to negotiate a global settlement.

(Christina Bruff)