By Christina J. Bruff
On March 20, 2024, the United States Supreme Court heard arguments regarding the decades old interstate compact litigation involving, inter alia, how New Mexico manages water deliveries in the Rio Grande. These management decisions, both groundwater and surface water deliveries and related storage, affect not only irrigation districts in New Mexico, but also in Texas and Mexico. [Texas v. New Mexico and Colorado, Case No. 141 orig. (U.S. Sup. Ct. Mar. 20, 2024).]
Background
As neighboring states and partners to several interstate compacts (the Pecos River Compact, the Rio Grande Compact, and the Canadian River Compact) New Mexico and Texas share a long water history. As the downstream state, Texas’s focus remains on ensuring New Mexico meets its various compact delivery requirements.
On January 27, 2014, the United States Supreme Court granted the State of Texas’ motion for leave to file a bill of complaint against New Mexico over alleged violations of the 1938 Rio Grande Compact, 53 Stat. 785 (1939). In effect, the Court ruled that Texas can proceed with its lawsuit against New Mexico. In ruling that the case should proceed, the Supreme Court evaluated “the nature of the interest of the complaining State” as well as the “seriousness and dignity of the claim” and “the availability of an alternative forum in which the issues tendered can be resolved.” Mississippi v. Louisiana, 506 U.S. 73, 77 (1992) (citations omitted).
Texas seeks declaratory relief ordering New Mexico to cease alleged illegal diversions as well as damages incurred as a result of Compact violations. Texas has long argued that excessive groundwater pumping between Elephant Butte Reservoir and the New Mexico–Texas border is depriving Texas of water to which it is legally entitled.
Overview of 1938 Rio Grande Compact
As with most compacts, the 1938 Rio Grande Compact was developed out of a shared desire to remove all causes of present and future controversy with respect to the use of the waters of the Rio Grande. The Compact effects an equitable apportionment of the waters of the Rio Grande among Colorado, New Mexico and Texas by establishing delivery amounts due at specific gauges. The last gauge for delivery in the Rio Grande Compact is Elephant Butte Reservoir, which feeds Caballo Reservoir right below it. Because of siltation and other practical problems, the gauge was moved to the outflow at Caballo Reservoir. The Compact allocates water among the three states, and in the case of the downstream state, Texas, guarantees water by use of a set of indexing stations whereby when “x” quantity of water passes a station, then “y” must reach the lower point. The Compact, however, is silent about what happens below Elephant Butte Reservoir.
In dividing the waters of the Rio Grande between Colorado, New Mexico and Texas, the Compact maximizes the beneficial use of the water among all states without impairment of any beneficial uses under the conditions that prevailed in 1929. While Colorado and New Mexico can increase their storage, Texas is assured that 790,000 acre-feet will be released to the lands below Elephant Butte Reservoir. However, based on Reservoir levels, during drought conditions Colorado and New Mexico may be required to release water from storage and may be precluded from increasing the amount of water in storage. The application of these Compact requirements during a drought depends, inter alia, on the accrued debit/credit status of each state. Unlike some compacts, the Rio Grande Compact acknowledges the variability of the hydrograph and allows accruals of credits and debits.
Historically, the Compact has resulted in 57 percent of the water supply below Elephant Butte Reservoir being delivered to New Mexico and 43 percent delivered to Texas. Texas contends that water provided to it under the Compact is then taken away by groundwater pumping below New Mexico’s Elephant Butte Reservoir. According to Texas, these hydraulically connected wells take water before it arrives at the New Mexico – Texas state line, in effect resulting in re-diversions of Texas’s water after it has been released to Texas.
Texas v. New Mexico
The dispute has its origins from the time that the Supreme Court held in Sporhase v. Nebraska, 458 U.S. 941 (1982) that one state could not preclude another state from appropriating water within the boundaries of the state seeking the appropriation. Shortly thereafter, the City of El Paso, by and through its Public Service Board, applied to appropriate 296,000 acre-feet annually from the Lower Rio Grande and Hueco Underground Water Basins. The Lower Rio Grande Underground Water Basin includes the Hueco-Mesilla Bolson Aquifer, as defined by the New Mexico State Engineer. The Hueco-Mesilla Bolson contains a great deal of unappropriated groundwater. Ironically, the Hueco-Mesilla Bolson Aquifer within Texas was quickly being depleted by El Paso. As translated, “Hueco Bolson” in Spanish means an “empty purse.” In the U.S. District Court case that arose from El Paso’s Application, Judge Bratton ruled that, “the purpose of the embargo is to promote New Mexico’s economic advantage.” City of El Paso, By and Through its Public Service Bd. v. Reynolds, 563 F.Supp. 379, 389 (1983). Judge Bratton overruled the New Mexico State Engineer’s denial of the Application.
A year later in 1984, Judge Bratton reversed his prior decision holding that:
(1) limitation of water exports to those which are ‘not contrary to public conservation of water within the state and are not otherwise detrimental to the public welfare of the citizens of New Mexico’ did not render the statute facially unconstitutional. City of El Paso By and Through Public Service Bd. v. Reynolds, 597 F.Supp. 694 (1984).
Judge Bratton had no idea that the controversy that he addressed 40 years ago would still be continuing, albeit with the United States considering itself the real party in interest to ensure that it could deliver water under the Rio Grande Project to its contractors.
Ironically, the purpose of El Paso was to extract 296,000 acre-feet to support its municipal growth, irrespective of the stream flow effects on the Rio Grande. The exact opposite is taking place now 40 years later, when the State of Texas and the States of New Mexico and the State of Colorado have entered into a “Consent Decree” that the above three States argue will prevent any negative effects on the United States, either as to the United States’ obligation to deliver 60,000 acre feet of water annually under the Convention of 1906 to Mexico, or its obligation to provide water in proportional amounts of 57 percent to the water users within the Elephant Butte Irrigation District and 43 percent to the irrigators in Texas.
The United States’ Position
The United States’ argument before the Supreme Court, as stated in its Exception to the Special Master’s Report (seeException by the United States to Third Interim Report of the Special Master, Texas v. New Mexico and Colorado, No. 141 orig. (S.Ct. Oct. 6, 2023)) (Exception to Special Master’s Report), can be divided into essentially three points. Their first point is weakened by the fact that the United States is not a party to the Rio Grande Compact. Not being a party, the first Special Master in this case allowed the United States to intervene, but solely for the purpose of protecting their “distinctively federal interests.” See Exception to Special Master’s Report at 11-12. The second Special Master reviewed the matter differently and concluded that the only real parties in interest are the compacting state’s themselves, and it is not for the Supreme Court in a case involving an interstate state compact among states to undo an agreement that has been reached as between the states themselves. See also Tarrant Regional Water Dist. v. Herrmann, 569 U.S. 614 (2013) (Supreme Court rules 9 to 0 against United States and Tarrant Regional Water District in Texas, holding that the intent of the compact drafters is the most important thing to consider because a compact is a contract among the States).
The United States’ second point is that the consent decree should be rejected because it imposes obligations on the United States without the United States’ consent. This is not a strong position for the United States because it forces the Supreme Court to decide what is and is not an obligation of the United States under the Compact. Since the United States is not a party to the Compact, the Court would be speculating as to the intention of the only drafters of the Compact—the State Texas, the State of New Mexico and the State of Colorado.
The third point of the United States is that the proposed Consent Decree should be rejected because it makes it difficult for the United States to provide its annual obligation of 60,000 acre-feet to Mexico. This argument fails because the Compact builds in a process by which the amount delivered to Mexico can be reduced in the event of shortages within the states of the United States and Mexico.
However, at page 46 of its Exception Brief, the United States argues that the Consent Decree cannot be defended because: “the baseline on which the Compact was predicated was the baseline that existed when the Compact was signed¾not decades later after groundwater pumping in New Mexico had greatly increased and drawn water away from the Project.” “The Project” means the United States’s obligation to deliver water to the two irrigation districts in New Mexico and Texas. Even the United States cannot push aside the events that caused the groundwater pumping in New Mexico and ignore that history of groundwater pumping from the dates of the numerous permits authorized by New Mexico’s late State Engineer Steve Reynolds, each of which drew water from the Rio Grande. This proposed Consent Decree is the State of Texas, New Mexico and Colorado’s attempt to start where the parties are now, not where they should have been had the United States raised its concerns earlier.
Oral Argument
In their questioning and commentary during the Oral Argument, the Supreme Court justices seemingly grappled with the role of the federal government given the fact the Rio Grande Compact is an agreement between states. Justice Gorsuch questioned:
. . .[y]ou’re asking us to say the two states cannot resolve their disagreement in this court consistent with a compact so long as the United States objects. . . . That’s the upshot of what we’re being asked to enforce.
The arguments highlighted the role of the United States to merely administer the Rio Grande Project versus more involved participation by the government when in interstate compacts wherein federal interests are involved. Justice Kagan stated:
. . .[t]here are compacts that really do involve only the states and don’t have distinctively federal interests attached to them, and this compact is not that. . . . [The Rio Grande Compact is] is inextricably intertwined with the Rio Grande Project and the downstream contracts, which, of course, are federal in nature.
Conclusion and Implications
Last week’s Supreme Court arguments capture how prolonged drought conditions have played a significant role in all Western states’ interstate water issues. Despite seasons of bountiful snowpack and boosting spring run-offs into New Mexico’s rivers and watersheds, ongoing drought seasons continue to implicate New Mexico’s water storage and delivery obligations under its various intestate compact obligations. In years past, water managers correctly forecasting the emerging trend that downstream states would increasingly seek to invoke United States Supreme Court jurisdiction to address issues created in the event drought results in under deliveries and municipal demand increases in the face of decreased supplies and storage. Ironically, these are some of the same tensions that prompted the states to develop and negotiate the Compact.
