The Supreme Court of the United States (SCOTUS) agreed to hear oral arguments to resolve a decade-old dispute concerning the alleged breach of the Rio Grande Compact by Texas.
On Jan. 22, the justices issued an order stating, “The exception to the Third Interim Report of the Special Master is set for oral argument in due course.”
In 1938, Texas, New Mexico and Colorado entered into the Rio Grande Compact with the intention to fairly allocate the waters of the Rio Grande above Fort Quitman, TX, situated approximately 80 miles southeast of El Paso.
The following year, Congress sanctioned the compact. The compact obligates Colorado to annually deliver a specified amount of water to the New Mexico state line based on schedules tied to various gaging stations. However, rather than imposing a reciprocal obligation on New Mexico to deliver a designated amount of water to the Texas state line, the compact requires New Mexico to deliver a specified quantity to Elephant Butte Reservoir.
Texas alleged in 2013 that New Mexico violated the compact by pumping groundwater that is hydrologically connected to the Rio Grande downstream of the Elephant Butte Reservoir in New Mexico.
In 2014, the Supreme Court assigned a special master to oversee the case, and in April 2018, the court relieved the initial special master, appointing Michael J. Melloy to assume the role. During a status conference on June 24, 2022, Melloy announced the existence of a “settlement in principle,” yet emphasized the necessity of completing substantial drafting, approval, and legislative and regulatory steps for the settlement to be finalized.
On Nov. 14, 2022, Melloy released a memorandum supporting Colorado, New Mexico and Texas’ entry of a consent decree supporting the Rio Grande Compact.
The U.S. intervened in the lawsuit, asserting that water users diverting water lacked contracts with the Interior Department or were exceeding contractual amounts, violating federal law. Melloy wrote the U.S. is not a part of the compact and holds no stake in the fair allocation of water between New Mexico and Texas. Melloy continued the Supreme Court permitted the U.S. to intervene emphasizing that it wouldn’t broaden the case’s scope beyond the equitable distribution of water. Melloy said the consent decree addresses the issue of equitable water allocation, its approval would eliminate any lingering interstate claims and the Supreme Court has shown judicial interest in encouraging settlements among states in prior interstate disputes falling under its original jurisdiction.
The U.S. said in a court filing in October 2023 that the consent decree was done without the government’s approval. The government asserted it should be denied for three reasons. First, the decree unlawfully resolves Texas’s claims and those of the U.S. without the consent of the government. Next, the decree attempts to impose obligations on the U.S. without its consent, violating legal principles. Finally, the proposed decree contradicts the compact itself and allows the states to dictate terms against the U.S.’ downstream contracts.
The government is asking the Supreme Court to reject the states’ joint motion for a consent decree. — Charles Wallace, WLJ contributing editor
