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After nearly a decade, the Texas Attorney General and the New Mexico Attorney General announced in October 2022 that Texas, New Mexico, and Colorado had reached an agreement over the distribution of water from the Rio Grande; however, the details of the agreement, which is in the form of a proposed Consent Decree, were not known until January 23, 2023. Though the Department of Justice opposes it, the proposed Consent Decree will likely be approved by the appointed Special Master and ultimately forwarded to the U.S. Supreme Court for approval.
Background
In 2013, Texas filed a complaint with the U.S. Supreme Court accusing New Mexico of breaching its obligations under the Rio Grande Compact. The dispute centered around groundwater pumping in New Mexico along a stretch of the Rio Grande River between the Elephant Butte Dam and Hudspeth County, Texas.
The allocation and distribution of the Rio Grande’s waters have long been a source of contention among Colorado, New Mexico, and Texas. In 1905, Congress authorized the building and operation of the Rio Grande Project which provided water allotments for the Elephant Butte Irrigation District (EBID), located in New Mexico, and El Paso County Water Improvement District No. 1 (EP No. 1), located in Texas. The districts’ water allocations were to be based upon a ratio of irrigated lands determined by the U.S. Bureau of Reclamation.
In 1938, Colorado, Texas, and New Mexico entered into the Rio Grande Compact to solidify water allocation among the basin states. The Compact is administered by the Rio Grande Compact Commission. The commission is composed of a representative from each state and a nonvoting representative of the United States appointed by the President. Commission action must be by unanimous consent.
The Compact obligates Colorado and New Mexico to make quantifiable deliveries to their respective downstream state. Colorado delivers its water obligation to New Mexico at the Colorado-New Mexico state line whereas New Mexico delivers its water obligation into Elephant Butte Reservoir, approximately 105 miles north of El Paso, Texas. The Elephant Butte Reservoir is part of the Rio Grande Reclamation Project. Once water is delivered into the Reservoir, the U.S. Bureau of Reclamation allocates the water between two beneficiaries: EBID and the EP No. 1. The Compact does not contain a definitive ratio for dividing water between the regions in western Texas and southern New Mexico after New Mexico performs its delivery obligation at Elephant Butte Reservoir.
Texas initiated an original action with the United States Supreme Court in 2013 and accused New Mexico of conduct that reduced Texas’ water supplies and apportionment of water to which Texas is entitled under the Compact. Texas alleged that its water allocation was being intercepted by New Mexico surface water diversions and river depletions caused by groundwater pumping. Texas pointed to 2,500 ground wells that had been drilled in New Mexico since the Compact was signed.
New Mexico refuted Texas’ claim and argued that its only obligation under the Compact is to deliver a specified amount of water into the Elephant Butte Reservoir and that the Compact does not require any specified amount of water to be delivered to the Texas-New Mexico state line. New Mexico also claimed that the wells drilled were proper because they were drilled based upon New Mexico water rights laws.
The City of El Paso, Hudspeth County, Texas, County Conservation and Reclamation District (HCCRD), and the City of Las Cruces, New Mexico, filed amicus curiae briefs. The City of El Paso, Texas, stated in its brief that the pumping in New Mexico results in diminished water delivered to the region’s almost 750,000 residents who depend upon El Paso and the Rio Grande Project for their water supply. Similarly, HCCRD explained that Rio Grande Project water is essential to area farmers for irrigation use. On the other hand, the city of Las Cruces, New Mexico, argued that its city’s water supply comes solely from the groundwater wells in question and the Compact contains no obligation to deliver water to the Texas state line.
The near decade-long dispute has made life more difficult for residents on both sides of the state line. Historically, eighty percent of the Rio Grande’s water has been diverted to agriculture, but the diminished flows have forced many farmers to either fallow fields or change what type of crops are grown on their farm. Residents relying on the river for drinking water also feel the impact. Recently, the city of El Paso has had to undertake pumping and piping measures. As a result, rate hikes have been implemented to cover the increased cost. It has been estimated that low-income residents may pay 10% of their income on water.
In October and November of 2021, farmers and irrigation districts provided testimony. John Balliew, El Paso Water Utilities President and CEO, testified that the Rio Grande is its primary surface water source for the approximately 800,000 people serviced by El Paso Water Utilities. El Paso has been forced to drill wells due to the reduced availability of surface water. Similarly, John Longworth, special assistant to the New Mexico state engineer testified that although the Las Cruces population has steadily increased, the Las Cruces Municipal Water System water allocation has decreased.
Robert Sloan, a farmer in the EBID and Vice President of the EBID Board testified that he has had to fallow land because of the unavailability or lack of water. A Texas farmer, Arthur Ivey Jr., who farms 570 acres of pecan trees within the EP No. 1, testified that surface water from Elephant Butte Dam is the primary water source for his farm’s irrigation. He also stated that if surface water is unavailable, he is forced to use well water, which is not good for pecans and harms the soil.
New Mexico farmers testified about the importance of pumping groundwater. David Salopek, a pecan farmer in Las Cruces, New Mexico, testified that he would not be able to maintain his pecan orchards without the ability to pump groundwater. Similarly, Randy Garay, a farmer in the Hatch Valley of New Mexico, testified that his farm had received only four inches of water from EBID. Given such a circumstance, Mr. Garay stated he would not be able to farm if he was unable to use groundwater.
Details of the Consent Decree
After months of secrecy, the details of the proposed Consent Decree have been made public despite the federal government’s request to keep the proposed Consent Decree sealed. On December 30, 2022, Judge Michael Melloy ordered that the proposed Consent Decree be unsealed.
If approved by the U.S. Supreme Court, the proposed Consent Decree would amend the legal basis for how river water is apportioned under the Rio Grande Compact. Significantly, Texas’ delivery point would be moved to the El Paso Gage, which is on the Texas-New Mexico state line. Additionally, the proposed Consent Decree contains a new calculation procedure for water deliveries. If approved, the Effective El Paso Index would be used to calculate the Rio Grande water that Texas is entitled to receive. Importantly, groundwater pumping is incorporated in the El Paso Index. Specifically, it provides that if pumping or diversions in New Mexico causes the state to fail to deliver the required amount of water for three consecutive years, then New Mexico will be required to send additional water from EBID to EP No. 1. In addition, the proposed Consent Decree identifies water held in storage known as “Credit Water,” to be used to satisfy the various water delivery obligations, based on estimated quantities monitored by the U.S. Bureau of Reclamation. Lastly, it includes dispute provisions which lay out how future disputes concerning over- or under-deliveries of Rio Grande water are to be handled.
The three states filed a joint motion to enter the proposed settlement; however, the United States government and both irrigation districts have serious concerns with the proposed settlement. All argue that the proposed settlement is not a workable solution and imposes unwanted obligations upon each. Furthermore, all express concerns that the proposed Consent Decree would have a negative impact on contractual rights. Judge Melloy has scheduled a hearing on the merits of the proposed decree, which will take place on February 6, 2023. If Judge Melloy approves the proposed Consent Decree, the U.S. Supreme Court will then need to approve the proposed Consent Decree before it can go into effect.
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