Water policy is very often its own language. Add years of increasingly complex legal proceedings, and the result often feels like word salad.
Here are key terms, players and concepts that come up in the U.S. Supreme Court lawsuit between Texas and New Mexico over groundwater pumping and Rio Grande water. Words and terms highlighted are important context to better understand the case.
The basics
The case is officially called Original No. 141 Texas v. New Mexico and Colorado. The “original”indicates that the U.S. Supreme Court is the only court where the case will be heard.
Attorneys for New Mexico, Colorado, Texas and the federal government will present oral arguments Wednesday March, 20 at 8 a.m. MDT.
Arguments could last several hours. An opinion from the justices could be released in the summer, but an exact date is unknown.
In January 2023, a deal between Texas, New Mexico and Colorado which would settle the Supreme Court case became public. In July, the special master recommended the Supreme Court accept the plan over the federal government’s objections that the settlement was invalid.
Federal exceptions to a proposed deal are the subject of the oral arguments before the U.S. Supreme Court on Wednesday.
The lawsuit centers on Rio Grande water between Texas and New Mexico. In a 2013 complaint, Texas alleged New Mexico groundwater pumping in southern New Mexico was taking water owed to Texas, and violating a legal agreement called the Rio Grande Compact.
The Rio Grande Compact, is a legally binding document between Colorado, New Mexico and Texas to share the water in the Rio Grande. The three states made the agreement in 1938, ending years of water rights disputes, and it was later ratified by Congress.
As with all interstate conflicts, only the Supreme Court has jurisdiction to hear the case.
Hydrology
The Rio Grande offers water to more than 6 million people in the U.S and Mexico. More than 80% of its water is diverted to agriculture in the Upper Rio Grande, which stretches from its snowmelt-fed headwaters in the San Juan Mountains of Colorado to about 90 miles east of El Paso, Texas.
Water is often measured in acre-feet (how much water it takes to cover one acre of land, one foot deep).
The river has an extensive groundwater system reshaped from water and geologic forces over millions of years. Water from the river seeps into basins inpermeable rocks and ancient cracks and “underflow” to adjacent groundwater basins. Some of the water in deep aquifers, such as the Hueco Bolson under El Paso, was filled in overmillions of years.
Another important source is groundwater found right around the river called shallow alluvium. This seeps into the banks and just below the riverbed surface, and sometimes into adjacent channels. These are verydynamic, and change rapidly.
Water always flows downhill, even underground.
This interconnection between surface water and groundwater is the crux of the allegations in the case presented before the U.S. Supreme Court.
In its complaint, Texas alleged that groundwater pumping below Elephant Butte to the state line was removing water from the Rio Grande owed to Texas under legal agreements.
In an order in April 2020, Judge Master Michael Melloy, overseeing the case as special master, wrote: “In simple terms, this case is a dispute about where the waters of the Rio Grande have been going, where they should have been going, and where they should go in the future.”
The People
Texas, New Mexico, and Colorado are official parties in the lawsuit because they are signatories to the Rio Grande Compact. Even though the allegations are between Texas and New Mexico, Colorado is still a participant in the case due to agreements under the 78-year-old Compact.
The federal government is represented by the U.S. Department of Justice.
The Supreme Court allowed the federal government to intervene in a unanimous 2018 decision. The federal government is representing agencies such as the Bureau of Reclamation, the International Boundary and Water Commission and Bureau of Indian Affairs.
“Friends of the court,” or amicus curiae, are groups who submit legal filings informing the court of their positions, or offering insight, but don’t have an official standing in the case.
This includes public entities such as the Elephant Butte Irrigation District, El Paso County Water Improvement District No. 1, New Mexico State University, cities of Las Cruces and El Paso, and the Albuquerque Bernalillo County Water Utility Authority. Also included are farming organizations such as the New Mexico Pecan Growers and Southern Rio Grande Diversified Crop Farmers Association.
8th Circuit Appeal Judge Michael Melloy is appointed as the special master in the case, a fact-finding judge who creates a record for the U.S. Supreme Court through reports.
Gregory Grimsal, a commercial attorney from New Orleans, Louisiana, was the first person appointed as the special master. He was abruptly discharged in April 2018. Melloy, a federal judge in Cedar Rapids, Iowa, was appointed.
The disputes
Texas’ accusation is that New Mexico violated the interstate compact.
The compact lays out how the states split water. It uses measurements at specific water gages to guide how much must be sent downstream. The compact requires Colorado to deliver a proportion of water each year to New Mexico at the state line. New Mexico is directed to deliver its proportion of water for Texas and Mexico into Elephant Butte Reservoir, about 120 miles from the borders.
That water is used to supply irrigation districts in New Mexico and Texas and give Mexico its share, outlined in a treaty called the 1906 Convention. Both are acknowledged in the compact.
The compact establishes a commission to enforce and monitor the agreement. The commission is made up of three voting members from the states and one non-voting member from the federal government. All compact disputes are heard at the U.S. Supreme Court.
The Rio Grande Compact allows for a certain amount of variance in the water delivery amounts, noted as debits and credits. Colorado cannot exceed 100,000 acre feet in debit, and New Mexico is limited to 200,000 acre feet.
In times of drought, the compact limits which reservoirs upstream of Elephant Butte can be used to store water.
The deal
It’s officially called a consent decree. The states called it a “carve-out” decree, saying it resolves the issues between Texas and New Mexico over Rio Grande water, but left open “intrastate” water issues in New Mexico – including the management of the Rio Grande Project.
The proposed consent decree would do the following:
- Add an El Paso water gage, which would measure Rio Grande deliveries from Elephant Butte, the new delivery point in the compact.
- It establishes a new formula to use for yearly delivery targets. That model incorporates groundwater pumping in a formula based on drought conditions from 1951-1978 (called the D2 period).
- It creates conditions for Texas and New Mexico to address under- and over-delivery measures, including penalties for repeated violations
- The agreement codifies that water received in Elephant Butte should be split 53% to New Mexico and 47% to Texas, based on percentages the irrigation districts paid for the construction of Elephant Butte Dam.
In a letter supporting the proposal New Mexico’s State Engineer Mike Hamman said the agency had the authority to curb groundwater pumping, install monitoring, buy water rights to retire groundwater wells; fallow farmland; increase water conservation or import water to ensure the compact agreement is met.
He further said that if voluntary and paid measures were ineffective, that the office would enforce groundwater well shutdowns.
In its exception filing to the Supreme Court, the federal government argued that the proposed consent decree cannot be adopted in three legal arguments.
- It was made without the federal government’s consent.
- It adds a “host of obligations” on the operation of the Rio Grande Project
- Argues that the settlement violates the compact by moving the location of water deliveries and fails to recognize a “1938 baseline” of minimal groundwater pumping.
Irrigation districts filed briefs supporting the federal government’s argument, saying the state does not have authority over the Rio Grande Project.
Continued issues
The Rio Grande Project, operated by the U.S. Bureau of Reclamation, is a network of dams, drains and canals to provide irrigation water in Mexico, southern New Mexico and far west Texas.
Construction on the network started in 1908, to ensure Mexico would receive water owed under the 1906 Convention. Some of its features include Elephant Butte and Caballo dams, a hydroelectric power plant and nearly 140 miles of canals, and more than 450 miles of drains and laterals.
The 2008 Operating Agreement is a compromise reached after decades of contention and lawsuits between the federal government and irrigation districts in Texas and New Mexico.
It’s both the spark that ignited this case, but also a continued issue, often alluded to as “intrastate issues,” which remain unresolved under the deal. It’s unclear what would happen to the New Mexico lawsuit against the federal government over the agreement, saying it shorts them water owed to the state under the compact.
The agreement’s signatories are the Bureau of Reclamation, Elephant Butte Irrigation District and El Paso County Water Improvement District No. 1. The agreement came about after legal fights over less water from a combination of drought conditions led to more groundwater pumping, Elephant Butte Irrigation District officials testified before the state legislature in 2012.
The agreement changes the calculations of how much water is sent to each district using mathematical models which account for groundwater pumping in the region using a baseline of 1951-1978 drought period.
In their testimony, advisors for the Elephant Butte Irrigation District said that increased pumping for farmers, as well as Las Cruces and other municipalities’ and domestic wells is now accounted for.
Using those calculations, managers offset groundwater impact by reducing Elephant Butte Irrigation District’s allocation of surface water, to ensure El Paso No. 1 receives the water owed to it.
“The intention of the Operating Agreement is to guarantee the downstream Texas district their Project water orders, regardless of the adverse pumping effects in NM,” engineer Phil King and attorney Steven Hernandez said in their 2012 testimony.
It also establishes “carryover” water, which allows the irrigation districts to bank up to cap 60% of what would be allowed in a full supply (305,000 acre feet for Elephant Butte Irrigation District and 233,000 acre-feet for El Paso No. 1) and call for it in future years.
Neither the state of New Mexico nor Texas were included in the agreement.
New Mexico sued the U.S. Bureau of Reclamation in a 2011 federal District Court lawsuit. It alleged the 2008 Operating Agreement violated federal law, and harmed New Mexico.
As that 2011 lawsuit escalated, Texas filed its complaint in the Supreme Court, saying that New Mexico’s actions were intercepting water meant for Texas through groundwater pumping and interfering with the federal government’s ability to manage the project.
That federal district lawsuit is on hold as the compact dispute makes its way through the U.S. Supreme Court.
This story was originally published by Source New Mexico. Find that publication here.
Source New Mexico is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Source New Mexico maintains editorial independence. Contact Editor Shaun Griswold for questions: info@sourcenm.com. Follow Source New Mexico on Facebook and Twitter.
