Texas v. New Mexico Supreme Court
Water Case: Issues, Process and
Interpretation
American Water Resources Association
50th Anniversary - 2014 Annual Conference
November 3-6, 2014 – Vienna, Virginia
Ari M. Michelsen, Tiffany Dowell, Zhuping Sheng and
Ronald Lacewell, Texas A&M University
Brian Hurd, New Mexico State University
Michelsen
Rio Grande

Two Countries, Five States (jurisdiction matters)

1,900 miles (3,057 kilometers; more than half TX-Mexico border)

Basin is arid or semi-arid (Chihuahuan Desert)

Sources of water (are outside of Texas)

–
Upper Basin, Snowmelt from Rocky Mountains
–
Lower Basin, Pecos River and Rio Conchos
Legally managed as two separate systems
–
Upper Rio Grande: CO, NM, TX, and MX
–
Lower: TX and MX, Fort Quitman to Gulf
Texas A&M AgriLife Research Center at El Paso
Michelsen
Interstate - Rio Grande Compact

1938-Three State Federal Compact

Distribution of water between Colorado,
New Mexico, and Texas

Compact commission 4 members, one from
each state plus Federal Government

Delivery obligations measured at:
–
CO - CO-NM Stateline at Lobatos
–
NM - at Otowi Bridge/San Marcial into Elephant Butte
–
TX- EB/Caballo Reservoir in NM (120 miles upstream)
Texas A&M AgriLife Research Center at El Paso
Michelsen
Rio Grande Project
• USBR – Authorized 1905 for agricultural irrigation
• Construction completed 1916
• 2.2 million acre feet storage
• Water allocated based on Project acreage
• Elephant Butte Irrigation District, 90,640 acres, 57%
• El Paso County Water Improvement District, 69,010 ac. 43%
• Plus up to 60,000 acre feet to Mexico
• NM and TX water rights appurtenant to Project Land
• Tax on land used to repay USBR; reimbursed in 1980
Elephant Butte Dam and Reservoir
Rio Grande Project Region
• Chihuahuan Desert – average annual rainfall 8.5”
• Basin and range topography - elevation 3,800’ to 7,200’
• Population: El Paso, TX
770,000
Ciudad Juarez, MX 1,500,000
Dona Ana County, NM 200,000
Total
2,470,000
• Rio Grande - Elephant Butte/Caballo Dam 120 miles upstream
Full allocation release 790,000 acre-feet for year
Majority of water used for crop irrigation
Extensive agricultural distribution system
River channelized, US & MX levees (IBWC)
• Groundwater – major or only source for urban and agricultural use
Texas A&M University-El Paso Research Center
Michelsen
RIO GRANDE PROJECT
Texas A&M AgriLife Research Center at El Paso
Michelsen
Texas A&M AgriLife Research Center at El Paso
Michelsen
Texas A&M AgriLife Research Center at El Paso
Michelsen
Elephant Butte Dam and Reservoir
Elephant Butte Reservoir – 15+ years of drought
Drought Watch on the Rio Grande
Surface Water Supply Conditions August 28, 2013
Combined Elephant Butte and Caballo Reservoir Storage
Water Available for Allocation
Water Not Available for Allocation
Thousan
d
Acre Feet
2,200 100%
2,000
90%
1,800
80%
1,600
1,400
70%
Labor Day water level in Elephant Butte
will be almost 115 feet below the dam.
The lake surface will be only 10%
of the full reservoir surface area.
Water Supply Conditions & Forecasts
• Water in Storage is 93,778 acre-feet or 4.2% of the combined reservoir
capacity of 2.23 million acre-feet. Of this 57,604 acre-feet of the
amount in storage is Rio Grande Compact and San Juan-Chama credit
water which is not available for use, leaving only 1.6% of capacity
available.
• 2013 was the shortest irrigation season with the lowest water
deliveries in the almost 100 year history of Rio Grande Project.
Spring snowpack runoff was almost zero this year. The 2014 river water
supply depends almost completely on next winter’s snowpack.
The Climate Prediction Center three month forecast calls for above
normal temperatures and average chances of precipitation.
• The 2013 Rio Grande Project water allocation was only 6.1% of a
full supply. The water allocation for 2012 was 38.7% of a full supply.
60%
Water allocation to agricultural and urban users
as a percent of full supply (amount varies by district)
1,200
1,000
800
600
50%
40%
30%
400
20%
200
10%
0
0%
Combined Storage
4.2 %
100%
90%
80%
70%
60%
50%
40%
30%
20%
10%
0%
Cumulative Water
Allocation for the Year
2005, 08, 09
Allocations
2007, 10
2006
2011
Delivery
No Water
Allocation
6.1
0.0
0.0
3.4
5.4
J
F
M
A
6.1
For additional information: http://elpaso.tamu.edu/research
http://elpaso.uc.usbr.gov
2013
End of Releases
M
J
Produced by: Texas A&M AgriLife Research Center at El Paso, Texas A&M University System
in cooperation with the USDOI Bureau of Reclamation, El Paso,
Texas Water Resources Institute and USDA-NIFA Rio Grande Basin Initiative
2004, 12
2003
6.1
J
A
S
O
N
D
Groundwater – The Solution?
Photo of EP1 GW pumping
Michelsen
Elephant Butte
Reservoir
Paso del Norte
Caballo
Reservoir
Rincon
Basin
Las Cruces
Mesilla Basin
Hueco Basin
New Mexico
United States
El Paso
Texas
Mexico
Ciudad
Juárez
Fort
Quitman
Increase in Wells
TDS (salinity) of the Rio Grande
1000
500
2000TX/El Paso drinking
Albuquerque
Albuquerque
1500
TDS (mg/L)
Summer 00
Winter 00
water standard
1500
1000
500
El Paso
2500
El Paso
2000
TDS (mg/L)
Winter 01
Summer 00
Winter
0001
Winter
3000
Elephant Butte
2500
Elephant Butte
3000
0
0
0
0
200
Recommended drinking
water standard
200
400
400
600
Distance
600(km)
800
Distance (km)
800
1000
1200
1000
1200
Source: Dr. Fred Phillips
Michelsen
History of Litigation
USBR, EBID, EPCWID, EPWU…..
• 1981 EPWU applies for NM GW rights
•
• NM denies, EPWU sues
• Settlement Agreement 1991
• EPWU agrees to restrict pumping
Late 1990’s, early 2000’s almost a dozen
law suits
• 2007 EPCWID v. EBID, claims NM pumping
diminishing deliveries and water quality
•
2008 Operating Agreement
•
USBR, EBID and EPCWID sign
Operating Agreement and drop suits
• Resolves issues over groundwater pumping,
water deliveries and water quality
• EBID foregoes a portion of Project deliveries
to account for groundwater pumping
• Increased deliveries to EPCWID
• Allows Irrigation Districts to carry-over water
Lack of Agreement
•
2011 NMOSE files suit against USBR
• NM alleges Operating Agreement changes
authorized allocation of Project Water
•
2013 Texas requests approval to file suit
against New Mexico in the Supreme
Court alleging NM has allowed
groundwater wells that reduce delivery of
1938 Compact water to Texas
Let the Fight Begin - TX v. NM
Off to Washington
• Texas files suit in US Supreme Court.
• USSC has original jurisdiction for suits between
sovereign states.
• USSC invited United States to weigh in on
whether it should allow the case to go forward.
Fightin’ Words
“New Mexico will not cede one inch of New
Mexico water to Texas!” – NM Governor Susana
Martinez
Litigants and Stakeholders
Texas
City of
El Paso
El Paso Cnty
WID #1
U.S. Bureau of
Reclamation
Elephant Butte
Irrigation District
New Mexico
City of Las
Cruces
Colorado
What has the Court decided?
• Texas may file its Complaint.
• The United States may intervene
and file its own Complaint.
• New Mexico may file a Motion
to Dismiss, Texas will respond,
and New Mexico will reply.
Texas’ Arguments
•
•
•
•
“Spirit and purpose” of the Compact!
There is less water available for Texas.
“Fundamental purpose” to ensure 1938 conditions.
2,500 new wells have been drilled between
Elephant Butte and the state line.
What does Texas want?
• Declare the rights of the State of Texas under
the Compact and Project.
• Command New Mexico to deliver waters in
accordance with the Compact and Project
• Command New Mexico to cease and desist all
actions that interfere with the ability of the
United States to operate the project.
• Damages.
New Mexico’s Arguments
• Read the Compact language!
• Delivery point is Elephant Butte, not the state
line. Compact does not address this issue.
• No requirement to maintain 1938 conditions.
• Other remedies are proper.
State of New Mexico
I. TEXAS’ CLAIMS ARE NOT APPROPRIATE FOR THE EXERCISE OF
ORIGINAL JURISDICTION.
A.Texas’ claims are not based on the express terms of the Compact
B.New Mexico’s Compact delivery obligation is to Elephant Butte
Reservoir and not to the New Mexico-Texas state line
C.Texas asks this Court to insert new terms into the Rio Grande Compact
1.
2.
3.
Texas asks this court to rewrite the Rio Grande Compact
The plain language of the Rio Grande Compact simply does not include any
protection of 1938 conditions
The Rio Grande Compact does not require New Mexico to guarantee that water
delivered to Elephant Butte Reservoir flow unimpeded to the New Mexico-Texas
state line
sources: (1) http://sblog.s3.amazonaws.com/wp-content/uploads/2013/04/3-11-13-NM-Opposition-Brief.pdf
(2) Sarah Bond, NM Assistant AG and Council of Record for the State of New Mexico, Apr 2014,
Law of the Rio Grande presentation
State of New Mexico
II. THE ISSUES RAISED BY TEXAS ARE BEING LITIGATED IN ALTERNATIVE
FORA
A. Texas’ interests may be vindicated in ongoing cases in the Federal District Court
and in the Lower Rio Grande Adjudication
B. The United States’ distribution of Rio Grande Project water is currently being
litigated in Federal District Court
C. The United States’ claims to Rio Grande Project water are properly before the
Lower Rio Grande Adjudication Court pursuant to 43 U.S.C. § 666
III. TEXAS’ MOTION FOR LEAVE MUST BE DENIED BECAUSE THE UNITED
STATES IS AN INDISPENSABLE PARTY AND HAS NOT CONSENTED TO
JOINDER IN THIS ACTION
Subsequently, US agreed and is now added as a plaintiff in lawsuit asserting its
own claims and allegations towards BOTH NM and TX
IV. TEXAS’ FULL FAITH AND CREDIT AND GOOD FAITH AND FAIR DEALING
ARGUMENTS HAVE NO MERIT
State of Colorado
“Colorado is not now expressing a view on whether the Complaint adequately
alleges a controversy between the states, but it cannot see an alleged injury based
on the terms of the Compact.”
“As the home of nine interstate water compacts, Colorado believes that litigation
regarding compacts should be narrow in scope.”
“Colorado requests that it be granted the ability to fully participate in any motion in
the nature of a motion to dismiss. Because Colorado is a party to the Compact, it
has a genuine interest in its interpretation. The United States has made several
statements in its brief that concern Colorado and may adversely impact Colorado’s
rights and obligations under the Compact.”
“Until Texas clearly asserts a violation of the terms of the Río Grande Compact,
Colorado does not support Texas’ Motion on the basis of a compact controversy.”
United States – Bureau of Reclamation
•
“The effect of the 2008 Operating Agreement is that EBID agrees to forgo
a portion of its Project deliveries to account for changes in Project
efficiency caused by groundwater pumping in New Mexico.”
•
“The United States has a further interest in ensuring that New Mexico
water users who do not have contracts with the Secretary for delivery of
Project water, or who use Project water in excess of contractual
amounts, do not intercept Project water or interfere with delivery of that
water to other Project beneficiaries.”
•
“... particularly under drought conditions, there would likely come a point
at which uncapped groundwater pumping in New Mexico would reduce
Project efficiency to an extent that 43% of the available water could not
be delivered to Texas, even if EBID forwent all Project deliveries.”
•
“The United States has an interest in ensuring that violations of the
Compact by New Mexico do not prevent the United States from meeting
its contractual obligations to Project beneficiaries.”
United States’ Arguments
• Look at the purpose!
• The purpose is to allocate water above Ft.
Quitman, not above Elephant Butte.
• NM gives up control of water when delivered.
• Groundwater & surface water is
hydrologically connected.
What does the United States want?
• Declare that New Mexico:
– May not permit water users without contracts to
intercept or interfere with Project water deliveries.
– May not permit beneficiaries in New Mexico to
intercept water in excess of allowed amounts.
– Must affirmatively act to prohibit or prevent such
interference.
• Enjoin New Mexico from interfering.
• Mandate that New Mexico affirmatively prevent
such interference.
Where do we go from here?
• Just this week, announcement that the case is
being assigned to a Special Master.
• Years of fun will likely begin.
• Court will rule…..sometime.