Written by Laura Paskus
It has been hard enough for states to share water during the best of times—when winters provide decent snowpack and rivers flow steadily. Add drought to the equation, factor in depleted groundwater levels and burgeoning populations, and the problems become even more extreme. Next, toss in a few lawsuits, competing water users, and climate change—and you’ll have some idea of the morass New Mexico is facing over at least the next decade. Earlier this year, Texas filed a request with the United States Supreme Court to sue New Mexico and Colorado for alleged violations by New Mexico of the 1938 Rio Grande Compact.
Under the Compact, Colorado, New Mexico, and Texas share the waters of the upper Rio Grande Whereas Colorado’s deliveries across the New Mexico state line are based on stream gage readings near the river’s headwaters, getting water to Texas is more complicated. Under the Compact, New Mexico delivers water into Elephant Butte Reservoir—90 miles north of the border with Texas. From there, water is allocated by the U.S. Bureau of Reclamation to the Rio Grande Project beneficiaries in both southern New Mexico and Texas. (Historically, 57 percent of the water was allocated to EBID in New Mexico, 43 percent to El Paso County Water Improvement District (EPCWID) in Texas.)
Now, Texas is alleging that New Mexico has violated its obligations under the Rio Grande Compact by repeatedly “intercepting” water intended for use in Texas. New Mexico has allegedly done this in two ways: By allowing diversions of surface water and by allowing groundwater pumping downstream of Elephant Butte Dam. Texas alleges that by increasing the amount of groundwater pumping, New Mexico is depleting the amount of surface water available to Rio Grande Project users in Texas.
Officials with the New Mexico Office of the State Engineer and the New Mexico Interstate Stream Commission say the Texas Supreme Court suit is an attempt to “divert attention away” from ongoing litigation filed by the New Mexico Attorney General against the U.S. Bureau of Reclamation in August 2011 and the ongoing New Mexico adjudication of the U.S.’ rights in the Project in a New Mexico state adjudication court.
New Mexico State Engineer public information officer Lela Hunt explains in an email that the state’s suit against the federal government arose, in part, over a 2008 Rio Grande Project operating agreement that redistributed “large volumes of New Mexico surface water to Texas at the expense of New Mexicans in the Lower Rio Grande.” She points out that the State of New Mexico is not a party to that operating agreement.
“We are concerned that Texas is trying to get water above and beyond what they already have. This lawsuit is yet another example of a tactic used by Texas to attack neighboring states,” says State Engineer Scott Verhines, in a written statement. “We are seeing a pattern of Texas litigation demanding interstate waters for which they have no legal right. Texas sues instead of addressing increasing water use within Texas. Fortunately neither state nor federal law supportsTexas’ claims. My focus will continue to be on the needs of our citizens, our environment and the state of New Mexico.”
Legal Limbo for Farmers
The suit has the potential to impact millions of water users in three states. And yet, the situation is even more complicated than it seems at first glance. That’s in part because the Elephant Butte Irrigation District—which is part of the Rio Grande Project—exists in something of a legal limbo between New Mexico and Texas.
“We’re waiting to see the response by the State of New Mexico to the Texas allegations because right now, we’re of the opinion that neither state represents us because of the unique position we’re in,” says Steven Hernandez, attorney for the Elephant Butte Irrigation District. “We’re ‘compact Texas’ for the purposes of surface water, but we’re geographically in New Mexico with respect to groundwater and the position of the (New Mexico) Office of the State Engineer.”
Hernandez says the State Engineer doesn’t represent the needs of the EBID; at the same time, New Mexico farmers lack political influence in Texas.
Hernandez also places blame for the suit being filed in the Supreme Court squarely on the New Mexico Office of the Attorney General. EBID, EPCWID, and the United States, he says, had previously come to an agreement to overcome depletions when all three parties signed on to the 2008 Operating Agreement. That agreement is the result of drought. “When the drought came (in the early 2000s), pumping in the valley increased,” says Hernandez, adding that the groundwater pumping affected surface flows of the river. After 20 years of a full reservoir and full allocations, EBID knew it was now vulnerable to Texas’s demands for water. “New Mexico was unable to reach an agreement with Texas, so the district stepped up, made an agreement with the United States and the El Paso district on a way to do it,” he says.
“EBID said, ‘We’ll make sure Texas gets its deliveries, and if additional water is needed, EBID will guarantee that. In exchange, EBID farmers want the threat of Texas suing in Supreme Court removed,” he says. “Then, the Attorney General filed the suit last summer—seeking to overturn the Operating Agreement—and as promised, Texas filed the complaint in the Supreme Court.” As he feared, Hernandez says Texas is now asking for more than what the three entities had previously been agreed upon. Under the 2008 Operating Agreement, Texas agreed to essentially grandfather in 40-years’ worth of groundwater wells and to base depletions on 1978 hydrological conditions, rather than those in 1938, when only a handful of groundwater wells existed in the basin. “That was a major concession,” he says, adding that in its filing to the Supreme Court, Texas is now requesting that all wells drilled in the basin since 1938 be considered additional depletions.
Hernandez says that voiding the 2008 Operating Agreement removes a degree of certainty that farmers rely upon to make a living. Farmers are already grappling with economic uncertainty and drought. Now, they’ll also be confronting regulatory uncertainty—for the foreseeable future.