New Mexico Is Jacking Our Water, Texas Tells Supreme Court

REUTERS/Carlos Barria

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Kevin Daley Supreme Court correspondent
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Texas told the U.S. Supreme Court Monday that New Mexico is funneling water away from the Rio Grande, in violation of a decades-old water sharing agreement between several states.

At the stake in the case is the allocation of vast amounts of water in the parched southwestern United States and northern Mexico.

The Rio Grande flows nearly 1,900 miles from its head in Colorado’s Rocky Mountains and empties into the Gulf of Mexico by way of New Mexico and Texas. The river is politically and economically significant for Mexico and the American expanses of the Chihuahuan Desert. The river’s Texas stretch forms part of the U.S.-Mexico border, while its water sustains the vast arid lengths of the American southwest, and its struggling agricultural communities.

Colorado, New Mexico, and Texas enacted an interstate agreement for equitable water-sharing called the Rio Grande Compact in 1938. The compact requires Colorado to meet an annual water delivery allocation at its border with New Mexico. In turn, New Mexico must meet a similar duty at the Elephant Butte Dam near the town of Truth or Consequences. Water is then distributed from that reservoir to west Texas and Mexico, under the terms of a 1906 treaty.

Texas is now suing New Mexico, claiming the state has siphoned ground and surface water away from the Rio Grande south of the Elephant Butte Dam. Texas believes that deprives their state of water guaranteed under the compact. New Mexico counters that it is only bound to meet a water delivery duty at the dam itself, and may grant rights to water south of Elephant Butte.

The federal government intervened in the case in support of Texas, claiming it has substantial interests in the conflict’s resolution. The government says failure to meet water delivery requirements under the 1906 treaty could have detrimental effects on the U.S. relationship with Mexico. The federal Bureau of Reclamation (BOR) also administers much of the river through the Rio Grande Project, that provides irrigation, flood control, and energy among several states.

Monday’s arguments largely concerned how the federal government’s might intervene in the case. All parties agree that the legal vehicle by which the federal government intervenes could effectively decide the dispute.

Texas believes the federal government can intervene under the terms of the compact. New Mexico says it would be unprecedented for the federal government to intervene through a compact between the sovereign states, and that other bodies of law exist by which the government can protect its interests.

Most of the justices appeared to side with Texas, and agreed that the government could intervene through the compact.

Justice Ruth Bader Ginsburg suggested the government could get involved since it administers the Elephant Butte Dam itself. The dam irrigates almost 200,000 acres in the American southwest. A hydroelectric plant is also on site.

“What seems to me special about this case is the prominence of the federal facility,” she said.

Justice Neil Gorsuch pointed out that the BOR has contract obligations relating to the Rio Grande Project, and that New Mexico’s actions could prevent the government from satisfying those contracts.

Justice Anthony Kennedy feared New Mexico’s actions compromised the government’s treaty obligations to Mexico, depriving needed water from an important international partner. As such, he said, the government had a compelling interest to intervene.

“This is an international law obligation on the United States that the United States would be remiss if it ignored,” he said.

Justice Stephen Breyer suggested a right to federal intervention in state compacts exists in the Constitution, since Congress must approve all compacts between the states.

“The Constitution foresees that [the federal government] can intervene where there’s an interest,” he said. “They have several interests. End of case, unless there is something that I don’t see.”

In rebuttal, Colorado Solicitor General Frederick Yarger argued the federal government has never before intervened in a compact between the states.

“The United States has never asserted, and this Court has never recognized, the right of the United States to bring an independent action under a compact,” he said.

A decision is expected by June.


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