Proposed Consent Decree in Texas v. New Mexico Water Lawsuit
Reprinted with Permission from La Jicarita, January 13, 2023
In 2013 the State of Texas filed a lawsuit in the Supreme Court alleging that New Mexico violated its obligations to the Rio Grande Compact by permitting groundwater pumping and other diversions in New Mexico below Elephant Butte Reservoir that depleted water intended for use in Texas. After a year of negotiations, with the U.S. as an intervener in the case (Elephant Butte Reservoir is a federal reclamation project), the proposed settlement agreement between the parties to the Compact — Colorado, New Mexico, and Texas — was just released to the public. The Special Master in the case, Judge Michael Melloy, ordered that the proposed Consent Decree be made public while waiting approval by the Supreme Court.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE JOINT MOTION OF THE STATE OF TEXAS, STATE OF NEW MEXICO, AND STATE OF COLORADO TO ENTER CONSENT DECREE SUPPORTING THE RIO GRANDE COMPACT November 14, 2022.
The Decree is 77 pages long, but in about 10 pages (29-38), it essentially “specifies procedures to ensure the proper apportionment of Rio Grande water between Texas and New Mexico below Elephant Butte Reservoir and quantifies New Mexico’s obligation to deliver water to Texas.” What is called the Effective El Paso Index establishes the annual amount of water that New Mexico must deliver. The Decree stipulates that the annual release from Caballo Dam will be used to determine New Mexico’s obligation to deliver water to Texas at the El Paso Gage (USGS 08364000), a stream gage very near the New Mexico-Texas state line, instead of where it’s currently measured upstream at Elephant Butte Reservoir. The Decree mandates that measures must be taken if New Mexico fails to deliver the Index’s obligated amount of water (or if the amount of water at Caballo falls below a certain amount).
Michael Hamman, New Mexico’s newly appointed State Engineer, submitted a letter of support of the Consent Decree that he believes ensures New Mexico’s Compact apportionment of water but that also offers possible procedures that can be implemented if the state is required to reduce depletions from aquifers connected to the Lower Rio Grande. These may include:
- acquisition of water rights and their permanent retirement (this was implemented on the Pecos River to meet its decree requirements with Texas);
- employ temporary fallowing of land to reduce groundwater withdrawals;
- implement conservation measures with both municipalities and users in the Lower Rio Grande;
- import water to the Lower Rio Grande; and
- as last resort, implement priority administration as specified in the Active Water Resource Management (AWRM). (This is a ruling that will allow an appointed water master to implement an administrative priority cut-off date.)
Because of the drought and climate crisis we’re currently navigating, some of these procedures are already being deployed along the entire Rio Grande to meet delivery requirements and will no doubt be deployed to meet the terms of this Decree at some point in the future.
The many other pages of the Consent Decree are devoted to providing background to the case and then arguing that it doesn’t “Affect the United States Substantive Rights,” as the U.S. has nothing to do with the apportionment of water below Elephant Butte Reservoir, doesn’t own an apportionment of water, and that the decree won’t create any new legal obligations for the U.S. As mentioned above, the U.S. became an intervenor in the lawsuit because, as its request for intervention claims, “groundwater diversions in the Lower Rio Grande intercept Rio Grande Project [Elephant Butte Irrigation District] water, reduce Project efficiency, violate provisions of Reclamation law, and violate the Compact.”
This, of course, brings to mind that the Lower Rio Grande Adjudication, which La Jicarita has covered extensively since 2009, remains extant. This is a case in which the State of New Mexico and the U.S. Government have to determine the amount of water rights the feds own in the Rio Grande Project, or Elephant Butte Irrigation District. The fundamental issue of first priority rights was at stake in this very contentious adjudication, but the claimants have been stymied throughout the entire process. This is the last paragraph of the 2013 La Jicarita article, credited to the attorney for one of the claimants:
“If the pre-1906 Claimants are correct, that their appropriation of all the flood waters of the Rio Grande has a priority date of 1893, then all persons claiming later rights are affected by this adjudication, including water rights claimants with later priority dates throughout the entire stretch of the Rio Grande. This Court probably cannot meet its obligation to adjudicate all the rights of the claimants without considering all priority claims on the river.”
I went to the Lower Rio Grande Adjudication OSE website to see that the latest files were dated December 13, 2022. Hopefully, the involvement of the U.S. in the Rio Grande Compact Consent Decree won’t delay the process as it has the Lower Rio Grande Adjudication. This is the last paragraph of the Decree:
“Because this litigation has persisted for nearly a decade, negotiations lasted over one year, and all interested parties participated in good faith, the Consent Decree is presumptively valid and the United States cannot meet its heavy burden in opposing the Decree. Therefore, this Court should approve the Consent Decree on the basis of its procedural fairness.”