The Supreme Court of the U.S. dismissed a proposed settlement between Texas and New Mexico over a decade-old dispute concerning the alleged breach of the Rio Grande Compact.
In a 5-4 decision, the court denied the agreement, siding with the U.S., asserting that parties cannot settle litigation in a way that disposes of a third party’s claims. The court maintained that the U.S. has a significant interest in ensuring New Mexico adheres to the compact’s terms due to the intertwined nature of the compact and the federal operation of the Rio Grande Project.
The Rio Grande Compact, established in 1938, allocates water among Colorado, New Mexico and Texas. Colorado is required to deliver a specific quantity of water annually to New Mexico, measured at designated gaging stations. In turn, New Mexico must deliver a stipulated amount to Elephant Butte Reservoir for use by New Mexican and Texan farmers. Additionally, Colorado and New Mexico have obligations and restrictions on water storage to ensure downstream deliveries to Texas, ensuring equitable water distribution and use along the Rio Grande River.
In 2013, Texas initiated legal action against New Mexico and Colorado, alleging New Mexico’s excessive groundwater pumping was reducing the Rio Grande water flow to Texas, thus violating the Rio Grande Compact.
In 2014, the U.S. requested to intervene, asserting claims essentially the same as those Texas had already pleaded. The U.S. stated its interest in enforcing New Mexico’s compliance with the Rio Grande Compact was closely tied to the U.S. operation of the Rio Grande Project.
In 2018, the court ruled in favor of the government, recognizing special federal interests in the water dispute between Texas and New Mexico. The Supreme Court assigned a special master to oversee the case, who said the U.S. was not a part of the compact and held no stake in the water allocation between New Mexico and Texas.
After lengthy negotiations, Special Master Michael J. Melloy announced in 2022 the states reached a settlement. The proposed settlement introduced the Effective El Paso Index (EEPI) to govern water delivery from New Mexico to Texas, which established an annual, volumetric target for New Mexico to deliver water to Texas.
The obligation would be based on data from 1951-78 when groundwater pumping in New Mexico was actively depleting return flows into the Rio Grande. The EEPI uses annual releases from Caballo Dam, 15 miles downstream from Truth or Consequences, to determine New Mexico’s obligation to deliver water to Texas at the El Paso Gage, near the state line.
The U.S. and irrigation districts and cities objected to the settlement. Attorneys general for New Mexico and Texas were disappointed the U.S. objected, stating they were exerting control over the settlement.
Brown denied the motion to enter the consent decree, recognizing the previous decision.
“Our decision today follows directly from our prior recognition of the United States’ distinct federal interests in the Rio Grande Compact,” Brown wrote. “Having acknowledged those interests, and having allowed the U.S. to intervene to assert them, we cannot now allow Texas and New Mexico to leave the U.S. up the river without a paddle.”
Brown was joined by Justices Elena Kagan, Brett Kavanaugh, John Roberts and Sonia Sotomayor.
Objections
Justice Neil Gorsuch wrote the dissenting opinion, stating the consent decree aims to fairly apportion water from the Rio Grande River between New Mexico and Texas while maintaining the longstanding federal reclamation operations in the area.
“The Court’s decision is inconsistent with how original jurisdiction cases normally proceed,” Gorsuch wrote. “It defies 100 years of this Court’s water law jurisprudence. And it represents a serious assault on the power of States to govern, as they always have, the water rights of users in their jurisdictions.”
Gorsuch continued the special master’s recommendations were sound and the court “should have done what was suggested.”
Justices Samuel Alito, Amy Coney Barrett and Clarence Thomas joined Gorsuch in dissent.
New Mexico State Engineer Mike Hamman said in a statement he was disappointed with the decision by the Supreme Court to remand the settlement to the special master.
“We need to keep working to make the aquifers in the Lower Rio Grande region sustainable, and lasting solutions are more likely to come from parties working together than from continued litigation,” Hamman said. — Charles Wallace, WLJ contributing editor
